Duff v Causeway Coast and Glens Borough Council

Factual and Procedural Background

This opinion concerns an appeal by the Appellant against an order made by Mr Justice Scoffield dismissing his application for leave to apply for judicial review of a planning permission decision granted by Company A on 26 August 2021. The planning permission related to an infill dwelling on a site between 51 and 53 East Road, Drumsurn. The Appellant challenged the decision on environmental grounds, claiming standing based on his commitment to environmental protection and citing relevant case law. The planning permission was granted by a narrow majority of the planning committee, despite the planning officer's recommendation to refuse. The Appellant engaged in pre-action correspondence, during which Company A conceded the unlawfulness of the decision and invited the Appellant to bring judicial review proceedings to quash the planning permission. However, a Notice Party, the beneficiary of the planning permission, opposed the grant of leave and challenged the Appellant's standing. The High Court refused leave on the basis that the Appellant lacked sufficient interest (standing) to bring the judicial review, and the Appellant appealed that decision to the Court of Appeal.

Legal Issues Presented

1. Whether the judge was correct to refuse leave to apply for judicial review on the basis that the Appellant did not have sufficient interest (standing) to bring the judicial review challenge.

Arguments of the Parties

Appellant's Arguments

• The Appellant asserted standing based on his longstanding commitment to environmental protection, having brought numerous prior judicial reviews related to environmental harm without being deemed vexatious.
• He relied on the principle that the environment cannot protect itself and that individuals with genuine interest and sufficient knowledge should be recognized as persons aggrieved in environmental matters, citing the Aarhus Convention and relevant case law such as Walton v The Scottish Ministers.
• The Appellant emphasized that all people have a collective responsibility to protect the environment and that he had a genuine interest in the countryside affected by the planning permission.

Company A's Arguments

• Initially, Company A took the position of conceding the unlawfulness of the planning permission decision and invited the Appellant to bring judicial review proceedings, agreeing to consent to quashing the permission.
• Later, during the appeal, Company A adopted a neutral stance on the question of standing.

Notice Party's Arguments

• The Notice Party opposed the grant of leave and challenged the Appellant's standing, arguing that the Appellant lacked sufficient interest in the matter to bring the judicial review.
• The Notice Party emphasized his private interest as the beneficiary of the planning permission.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal undertook a detailed analysis of the legal principles governing standing in judicial review proceedings, particularly in the context of environmental and planning law. It acknowledged the statutory framework requiring a sufficient interest to grant leave and considered relevant case law including Walton v Scottish Ministers for a broad and contextual approach to standing.

The court recognized the Appellant's genuine environmental concerns and his history of engagement in environmental judicial reviews. It noted the absence of personal or property interest by the Appellant in the specific planning decision and the general principle that participation in the planning process is ordinarily required to establish standing.

However, the court placed significant weight on the fact that Company A had conceded the unlawfulness of the planning permission and had invited the Appellant to bring judicial review proceedings, consenting to the quashing of the decision. The court found it problematic that standing was challenged only after the Notice Party became involved, despite Company A's earlier concession and invitation.

Balancing the competing interests, including the public interest in correcting admitted public law wrongs and the absence of any other challenger, the court concluded that the judge below had not properly balanced these factors. The court emphasized that this was a rare and fact-specific case and that the decision should not be taken as a broad precedent for standing in planning judicial reviews.

Holding and Implications

The Court of Appeal ALLOWED THE APPEAL and granted leave to the Appellant to apply for judicial review.

This decision permits the judicial review to proceed despite the Appellant's lack of direct personal interest, based primarily on Company A's concession and invitation to challenge the planning permission. The ruling highlights the court's willingness to ensure public law wrongs admitted by public authorities can be addressed, especially in the absence of other challengers.

The court explicitly stated that this is a highly fact-specific and exceptional case, not intended to establish a wide precedent for standing in environmental or planning judicial reviews. The direct effect is that the Appellant may continue with the judicial review, and the court will subsequently consider costs and the merits of the substantive challenge.