Judicial Review: Belfast City Council v Planning Appeals Commission 23 February 2018
On Friday 23 February 2018 Mr Justice McCloskey issued Judgment on an application for Judicial Review brought by Belfast City Council in respect of a decision by the Planning Appeals Commission to grant planning permission for a student housing development in Belfast.
This decision will have important ramifications for all Councils in relation to how they come to decisions on planning applications. We have highlighted below some of the key considerations of the case. The written Judgment should be available later this week.
The Council was heavily criticised for not providing a written record following the one and only meeting that both parties attended on 17 June 2015, which was against the Council’s own operating procedures. This was only the time prior to the issue of the case officer’s report that the issue of scale and massing was raised. The Judgment makes it clear that Councils should provide a clear written note of any pre-application discussions to an applicant.
Late disclosure of reasons for refusal
Despite several months of discussions in respect of the planning application the Council did not until 3 days before the Planning Committee meeting advise the applicant that it had concerns around the scale and massing of the proposed building. The Court agreed with the Interested Party’s (“IP”) submissions that the Council’s handling of the planning application had been “wasteful of time” and “wholly unreasonable”.
Mr Justice McCloskey stated:
“I have no hesitation in concluding that the failure of the Council’s officials to alert the IP’s agents to their obviously profound concerns about the scale and massing of the proposed development, considered in its full context was procedurally unfair. Its effect was that the IP and its agents were unfairly taken by surprise. The “ambush” element was that they had insufficient time and opportunity to respond and rectify. This should never have occurred”.
Going forward, Councils must be careful not to belatedly disclose concerns or reasons for refusal at a late stage, and should they do so, they must give the planning applicant time to respond and rectify.
Despite applying, in no uncertain terms, for a deferral of the planning committee to allow it to deal with the reasons for refusal, the Interested Party never received the deferral, nor a reason as to why the extension would not be granted. The Council were strongly criticised for their failure to ‘not even engage with the deferral request’. Furthermore, the Judge stated that this failure alone would be enough to destroy or impair the legal validity of the Council’s refusal decision.
Planning Committees must explicitly consider requests for a deferral and provide reasons why such a deferral is refused. This should be recorded in the Council minutes. A failure to do so could undermine the validity of a planning decision.
Misrepresentation presented to the Committee
The case officer, in both her written and oral submissions to committee made a significant misrepresentation in asserting that a previous planning permission had expired. The Court found that this error was sufficient to vitiate the Council’s refusal decision. The Court made a number of other criticisms of the case officer’s report to the committee and the narrative attached to a “late items list” which referred to a schematic drawing submitted by the planning applicant showing a reduction in both scale and mass.
The case highlights the clear duty of the planning case officer to provide clear and accurate information to the Committee and to ensure that accurate presentation of the information is provided. Failure to do so will undermine any decision of the planning committee.
Admissibility of new drawings before the Planning Appeals Commission
The interpretation of Section 59 of the Planning Act regarding “new materials” before the Planning Appeals Commission (PAC) is also discussed, and the previous uncertainty of the section is now significantly clearer. In short, Section 59 prohibits the introduction of new materials to the Planning Appeals Commission that were not before the Council when it made the decision which is the subject of an appeal unless certain very limited circumstances exist.
3 days before the planning committee meeting, the Interested Party submitted a schematic drawing showing a reduced height and a set back to the proposed building. This drawing was followed by subsequent detailed drawings which were submitted shortly after the planning committee meeting. The Interested Party requested that these drawings be considered by the Planning Appeals Commission.
Mr Justice McCloskey clarified the meaning of Section 59. The Judgement gives considerable analysis to the specific factual circumstances of the case and its conclusions that there were aspects of the Council’s conduct in determining the planning application that were procedurally unfair. The court concluded that:
“..it is open to the PAC to exercise its discretion under section 59(1)(a) of the 2011 Act in circumstances where it is satisfied that the ‘new matter’ could not fairly or reasonably have been raised by the party concerned at the first instance decision making stage.”
The case provides some useful guidance on the interpretation of the 2011 Act. Councils must take care that their decision making process is procedurally fair and that all reasons for refusal are brought to the planning applicant’s attention at the earliest stage.
The Council had sought to challenge the PAC procedures in that it does not give advance notice to the parties that another party intends to be legally represented. Although the court found nothing unlawful in the PAC procedures, Mr Justice McCloskey did suggest that some consideration be given to the practicalities of amending pre-hearing procedures to ensure that:
(a) Every party which intends to be legally represented is required to signify this fact; and
(b) Any alteration occasioned by subsequent developments is also notices to the PAC at first instance and then by the PAC to all other participating parties.
The case highlights the importance of case officers providing timely and frank advice to planning applicants and ensuring the accuracy of the information that they present to members and the duty of the planning committee to consider and give reasons for any decision on a deferral application.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.