Duff, Application for Judicial Review

Factual and Procedural Background

The appellant, a litigant in person, challenged the decision of the local Council to grant outline planning permission for two detached infill dwellings and garages on lands located between two residential properties on Glassdrumman Road in a rural area outside any designated settlement. The planning application was first considered by the Council’s Planning Committee in December 2020, where the appellant was granted speaking rights and objected to the proposal, raising concerns including the absence of a site visit. The Committee approved the application by majority vote. Following pre-action correspondence from the appellant, the application was reconsidered in April 2021, with the Committee again approving the development. The appellant subsequently applied for judicial review of the Council’s decision, challenging the interpretation and application of relevant planning policies, particularly the exception permitting development on a “small gap” within a substantial and continuously built-up frontage, and raising environmental concerns regarding hedgerow removal. The High Court dismissed the judicial review, and the appellant appealed to the Court of Appeal.

Legal Issues Presented

1. Whether the Council correctly interpreted and applied Policy CTY8 of PPS21 concerning ribbon development and the “small gap” exception.
2. Whether the Council lawfully considered environmental impacts, specifically the likely adverse effects on hedgerows as priority habitats under Policy NH5 of PPS2.
3. Whether the Council acted unlawfully or irrationally by refusing to conduct a site visit before deciding the planning application.
4. Whether the appellant has sufficient standing to bring the judicial review.

Arguments of the Parties

Appellant's Arguments

• The development constitutes ribbon development, which is prohibited by planning policy unless a narrowly defined exception applies.
• The Council’s decision that the application site is a “small gap” within a substantial and continuously built-up frontage is unsupported by facts and wrong in law.
• The manège gap adjacent to the site is not a building and breaks the continuity of the frontage, thus no substantial and continuously built-up frontage exists.
• The gap to be infilled is not “small” when measured against the average plot sizes of surrounding properties.
• The Council failed to properly consider the environmental impact of removing significant hedgerows, which are priority habitats protected under Policy NH5.
• The Planning Committee erred by refusing to conduct a site visit, which was necessary for proper assessment of the site and its context.
• The Council failed to provide or consider adequate data on hedgerow loss and its ecological consequences.

Respondent's Arguments

• The proposed development site qualifies as a “small gap” within a substantial and continuously built-up frontage under Policy CTY8.
• The Council applied the relevant policies correctly and did not depart from them unlawfully or irrationally.
• The manège associated with the neighbouring property should be treated as part of the built-up frontage due to its association with the domestic property and presence of fencing and hardstanding.
• Some loss of hedgerow is inevitable in such developments and does not generally result in unacceptable adverse impacts on priority habitats.
• The removal of hedgerows does not require planning permission and could lawfully occur independently of the development.
• The Planning Committee had sufficient information, presentations, and objections before it and was not legally required to conduct a site visit.
• The appellant’s standing to bring the judicial review was disputed but accepted by the trial judge and the interested party.

Notice Party's Arguments

The opinion does not contain a detailed account of the notice party’s separate legal arguments beyond their involvement in the proceedings.

Interveners' Arguments

The opinion does not contain a detailed account of the interveners’ legal arguments beyond their written submissions.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court focused primarily on whether the Council correctly applied the “small gap” exception within Policy CTY8, which permits development only on a small gap site within a substantial and continuously built-up frontage (SCBUF). The policy defines SCBUF as a line of three or more buildings along a road frontage without development to the rear. The Court found that the physical facts on the ground showed the presence of two significant visual gaps, including a manège, which is not a building but an open ground area. This breaks the continuity of the frontage, meaning that a SCBUF did not exist as required by the policy.

The Court identified a fundamental error in the Council’s planning officer report, which treated the manège gap as developed frontage associated with the neighbouring property, thereby artificially extending the frontage and reducing the proportional size of the gap. This approach was deemed irrational and unsustainable given the policy’s inherently restrictive purpose to prevent ribbon development.

Regarding whether the gap was “small,” the Court noted that the officer’s report failed to provide precise measurements of the manège gap, omitting critical data needed for an informed decision. This omission materially hindered the decision-maker’s ability to assess the smallness of the gap and thus the applicability of the exception.

On environmental considerations, the Court acknowledged the appellant’s concerns about hedgerow removal, which would impact priority habitats protected under Policy NH5. The Court found that while the Council was aware of objections and the general issue of hedgerow removal, it lacked the necessary detailed data and explicit reference to the relevant policy to conduct the required balancing exercise. The absence of this information meant the Council could not properly assess whether the development would cause unacceptable adverse impacts, rendering the decision flawed.

Concerning the refusal to conduct a site visit, the Court recognized the value of site visits in contentious cases involving planning judgment but concluded that the Council’s decision not to visit the site, after due consideration and voting, was not unlawful.

Finally, on standing, the Court agreed with the trial judge that the appellant had sufficient interest to bring the judicial review given his active involvement as an objector, despite lacking a direct personal interest in the site.

Holding and Implications

The Court held that the Council’s decision to grant planning permission was unlawful because it failed to properly apply the restrictive planning policy prohibiting ribbon development except in narrowly defined circumstances. Specifically, the Council erred in concluding that the development site qualified as a “small gap” within a substantial and continuously built-up frontage and failed to adequately consider the environmental impact of hedgerow removal due to lack of necessary data and policy reference.

The Court quashed the planning permission.

The direct consequence is that the planning permission granted for the two detached infill dwellings is invalidated. No new planning permission has been granted, and the decision must be reconsidered in compliance with the correct application of policy and adequate environmental assessment. The Court did not set any new precedent but reinforced the strict and narrow interpretation of exceptions to ribbon development policies and the importance of informed environmental scrutiny in planning decisions.