McLaughlin v Causeway Coast and Glens Borough Council

Factual and Procedural Background

This is an appeal against the refusal of leave to judicially review a decision by Causeway Coast and Glens Borough Council ("the respondent") to grant planning permission on 5 October 2022 for the replacement ("repower") of an existing wind farm at Rigged Hill, near the village of Drumsurn. The appellant is a resident of Drumsurn, and the notice party is Company A, the entity benefiting from the planning permission.

The development involves decommissioning 10 existing turbines and constructing seven new larger turbines with associated infrastructure. The site is a ridge with an operational wind farm and surrounding moorland used for agriculture, including a walking route passing through the site. The planning application was treated as a major application subject to the Proposal of Application Notice process and included a voluntary Environmental Statement due to its classification as an Environmental Impact Assessment (EIA) development.

The appellant sought judicial review of the Council's decision, but Kinney J refused leave, concluding the grounds advanced were not arguable with a realistic prospect of success. This appeal challenges that refusal.

Legal Issues Presented

1. Whether the trial judge erred in concluding that the appellant's grounds for judicial review were not arguable with a realistic prospect of success.
2. Whether the planning authority lawfully exercised its discretion in granting planning permission, particularly regarding the assessment of visual amenity and landscape character impacts.
3. Whether the decision-maker properly took into account the objections of the local community.
4. Whether there was a legitimate expectation that the Council would find the effects of the proposal unacceptable.

Arguments of the Parties

Appellant's Arguments

• The local community, being the closest and most impacted, should have priority in determining whether there is an unacceptable adverse impact on landscape character and visual amenity.
• The respondent should have given precedence to the local community's judgment over that of the planning applicant regarding unacceptable adverse impacts.
• The decision to disagree with the Drumsurn community's objections was irrational.
• The elevation (height) of the turbines was not properly taken into account in the assessment.
• There was a legitimate expectation that the Council would conclude the effects of the proposal were unacceptable.
• The Council failed to adequately take into account the objections from the Drumsurn community, including alleged failure to upload all objection documents.

Respondent and Notice Party's Arguments

• The planning authority properly exercised planning judgment, concluding the adverse effects were not unacceptable in policy terms.
• The Council undertook a proper assessment of landscape and visual impacts, including scoping and environmental statements.
• The objections of the local community were fully considered and addressed in the planning officers' report and addenda.
• The height of the turbines was clearly set out and understood by decision-makers.
• No substantive legitimate expectation arose as there was no clear and unambiguous undertaking or settled practice.
• The appellant's complaints about document availability were unfounded as objections were uploaded with sufficient detail to discern community opposition.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal affirmed the refusal of leave to judicially review, agreeing with Kinney J that the appellant's grounds lacked a realistic prospect of success. The court emphasized the supervisory, not appellate, nature of judicial review in planning matters, underscoring that planning judgments lie within the exclusive province of the planning authority unless there is demonstrable error or irrationality.

The court found the planning authority had properly conducted an assessment of landscape and visual impacts, including through an Environmental Statement and detailed planning officers' reports. The objections of the local community were fully considered and addressed in the officers' report and addenda, and the planning committee was properly informed, including via oral presentations and visual materials such as wireframe drawings.

The decision to grant permission was held to be a rational exercise of planning judgment, supported by expert evidence and professional advice. The appellant's contention that the Council failed to consider the height of turbines or the community's objections was rejected as factually incorrect. Moreover, the claim of a legitimate expectation that the Council would find the proposal unacceptable was dismissed for lack of any clear and unambiguous undertaking.

Overall, the court concluded that the appellant failed to identify any legal or factual error sufficient to undermine the planning authority's decision or to justify judicial intervention.

Holding and Implications

The Court of Appeal DISMISSED the appeal, upholding the refusal of leave to judicially review the planning permission decision.

The direct effect is that the planning permission granted by the respondent remains valid and unchallenged. No new legal precedent was established by this decision, and the ruling reinforces the established principle that planning judgments are for the planning authority and that judicial review is limited to assessing legality and rationality of the decision-making process.