Gordon Duff and Causeway Coast and Glens Borough Council and Alex McDonald

Factual and Procedural Background

This appeal arises from a judicial review application challenging a planning permission granted by Company A in relation to a site between 51 and 53 East Road, The City. The planning permission was granted on 26 August 2021 for an 'infill' dwelling under Policy CTY8 of Planning Policy Statement 21, which regulates rural development by allowing a dwelling in a small gap within a substantial and continuously built-up frontage in the countryside. The planning application was made by the Notice Party and was the third such application, none of which had the support of the planning officer, with the first refused and the second withdrawn. The planning committee of Company A granted permission by a narrow vote despite the officer's recommendation to refuse.

The Appellant, a litigant in person, sought judicial review of the planning permission. Initially, the judge refused certiorari but granted declaratory relief and made no order as to costs. The Appellant was found not to have sufficient interest at first instance, but this was overturned by the Court of Appeal, which granted standing based on exceptional circumstances including an invitation from Company A to bring the challenge. The Appellant had also succeeded in a related judicial review concerning another site, emphasizing his environmental concerns and objections to rural development policies.

Legal Issues Presented

1. Whether the Appellant had sufficient standing to bring the judicial review challenge to the planning permission.
2. Whether the judge erred in refusing to grant a quashing order (certiorari) despite finding illegality in the planning permission decision.
3. Whether the judge erred in not awarding costs to the Appellant.

Arguments of the Parties

Appellant's Arguments

• The Appellant asserted strong standing, bolstered by the invitation from Company A to seek quashing of the planning permission.
• He argued that the illegality in the planning permission should result in a quashing order to uphold administrative and public law interests.
• He emphasized the importance of addressing systemic issues in rural planning, including the improper overturning of planning officer recommendations.
• The Appellant contended that the cumulative environmental impact and the improper application of planning policy warranted quashing.
• He sought costs to follow the event given the successful challenge.

Notice Party's Arguments

• The Notice Party opposed the grant of a quashing order on discretionary grounds, arguing the Appellant was an undeserving applicant due to alleged disregard for planning law (a 'clean hands' argument).
• He contended that quashing the permission would cause prejudice to him.
• He argued it would be unfair to quash the permission given the role of Company A in the process.
• The Notice Party maintained that despite the Court of Appeal's ruling on standing, the Appellant should be viewed as a 'busybody' lacking proper standing.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal carefully reviewed the factual and procedural history, emphasizing the exceptional nature of the Appellant's standing, which was explicitly recognized and invited by Company A. The court adopted the comprehensive judgment of the lower court but found error in the exercise of discretion regarding relief.

The court acknowledged the judge's acceptance of the Appellant's genuine environmental concerns and frustration with the planning system's handling of rural infill development. The judge had found illegality in the decision-making process, including errors of fact and irrational conclusions concerning the planning policy's application.

Despite these findings, the judge refused to grant certiorari primarily because the Appellant had not participated in the planning process, had no direct personal interest, and due to the potential prejudice to the Notice Party. The Court of Appeal rejected these reasons, emphasizing that the Appellant's standing was exceptional and supported by the Council's own invitation to challenge the decision.

The court highlighted systemic concerns supported by reports from the Northern Ireland Audit Office and the Public Accounts Committee, which documented inconsistent and potentially improper planning committee decisions, particularly regarding overturning planning officer recommendations for single rural houses. The court stressed the importance of upholding planning policy to protect the rural environment and preventing unlawful planning permissions from becoming accepted precedent.

The court found that the judge failed to properly balance the public and private interests, notably disregarding the administrative need to quash unlawful decisions and the implications for rural planning policy integrity. The judge's discretion was thus exercised incorrectly.

Additionally, the court criticized Company A's conduct for protracting litigation despite conceding illegality early on, and noted the Notice Party had not been adequately informed during the process.

Holding and Implications

The court ALLOWED the appeal on both substantive and costs grounds.

The planning permission granted to the Notice Party was quashed. Costs were awarded to the Appellant in accordance with an agreed protective costs order, with further directions to consider costs against the Council by the Notice Party.

The decision underscores that where a public authority concedes illegality in a planning decision and invites judicial review, courts should give significant weight to this in granting relief. It affirms the principle that standing may be exceptional and environmental public interest can justify judicial review even absent direct personal interest.

The ruling also signals judicial concern over local planning authorities' practices in rural development and the importance of adhering strictly to planning policies to protect the countryside. No new precedent beyond the direct effect on the parties was set, but the judgment reinforces existing principles on standing, discretion in relief, and the oversight role of courts in planning decisions.