Judicial Review in Planning and Environmental Cases in Northern Ireland - A Guide for Litigants in Person Anurag Deb (KRW LAW LLP)│Richard Honey BL (Bar Library) Conor Fegan (Barrister, Francis Taylor Building)│Monye Anyadike-Danes QC (Bar Library) Friends of the Earth (Northern Ireland) i ii INTRODUCTION This guide is the product of a series of discussions with people who are passionate about environmental protection and sustainable development and are keen to use their rights under the law to see their environment appropriately cared for. One of the most powerful ways in which these rights can be vindicated and environmental protections enforced is through applications for judicial review at the High Court in Northern Ireland. The court reviews decisions against legal standards and looks at whether decisions by public bodies or officials were lawful. If unlawful, the court can quash decisions and even ask the decision-maker to remake the decision. As important as judicial review cases are, they are also highly technical and require specialist knowledge of practice, procedure and the law of judicial review. Though we who have practical experience will always advise individuals to seek legal advice, we recognise that sometimes this is not possible, and individuals are left being highly dependent on the limited resources of the court. This will often result in protracted delays and multiple hearings before a Judge to deal with mistakes and issues in the judicial review documents. We hope to address this problem in some meaningful way through this guide, and we hope to do so as accessibly as possible. iii CONTENTS Section Page A. What is judicial review? 1 B. Remedies in judicial review 9 C. Beginning a judicial review 14 D. The application for leave 22 E. The grant of leave 40 F. After the grant of leave 45 G. At the hearing 55 H. Judgment and other matters 59 I. Costs 60 J. Brexit 65 K. Conclusion 66 L. Appendix 67 M. Glossary of terms 71 N. An Overview of Judicial Review 74 iv A. What is judicial review? (1) Introduction Judicial review is nothing more or less than a review, by one or more Judges of the High Court, of the lawfulness of a decision made by a public body or public official. The High Court has the power (generally) to quash unlawful decisions, order that the unlawful decision be made again according to guidelines set out by the court, prohibit a public body or official from acting beyond their powers, grant an injunction against a public body or official, declare a decision to be unlawful and in some circumstances, even award damages for the effect of an unlawful decision on the person or group which sought the review of the decision (the available orders are discussed in greater detail in SECTION B). Judicial review is not the appeal of a decision, so the High Court will not substitute its own decision for the decision under review. It may, however, set out guidelines for a decision-maker to remake their decision if it is found to be unlawful. Thus, the High Court will not examine the merits of a decision – only whether the decision under challenge is within the range of lawful decisions which could have been made. (2) Lawfulness A decision is judged to be lawful or unlawful on the basis of certain legal principles. Very few decision-makers have an absolute discretion on the decisions which they make, and most decision-makers — including, for example, local councils, Northern Ireland Departments and Ministers, the Northern Ireland Environment Agency, and the Planning Appeals Commission — must make decisions in line with these legal principles. The most important principles, including relevant case-law are dealt with in greater detail in SECTION N, but are summarised here as follows: 1. Illegality a. A decision which is authorised or required by legislation (whether of the UK Parliament, the Northern Ireland Assembly or the EU) must not go beyond the ordinary meaning or purpose of that legislation (e.g. the Planning Act (Northern Ireland) 2011, the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 2017, etc.) (referred to as ultra vires); b. Decision-makers must not make decisions which they are not authorised to make; 1 c. A decision-maker must not consider irrelevant matters when making a decision; d. A decision-maker must consider all relevant matters when making a decision; e. A decision-maker must not bind themselves into exercising a discretion in one particular way but must exercise that discretion according to the facts and circumstances of each case which requires such a discretion to be exercised (often referred to as a fetter on discretion). Examples A decision was taken by the Department for Infrastructure (“DFI”) to grant planning permission to the Mallusk incinerator. There was no Minister heading up the DFI at the time the decision was made, despite there being a legal requirement for Northern Ireland Departments to be headed by Ministers at all times. The DFI decision was therefore made by civil servants in the absence of the lawful decision maker (a Minister), thus making the decision unlawful – Re Buick’s application for judicial review [2018] NIQB 43; The Belfast City Council Planning Committee (“PC”) granted planning permission for a major office development in an area which the Planning Appeals Commission (“PAC”) had proposed to be designated for social housing. The PAC is the independent expert planning appeal body in Northern Ireland. In making its decision, the PC did not consider the PAC proposal, but if it had, the PC may have been compelled to reject the office development proposal because of the expert status of the PAC in Northern Ireland planning matters. Thus, the PC failed to consider a relevant matter, thus making its decision unlawful – Re Conlon’s application for judicial review [2018] NIQB 49. A planning application for a residential development was refused and the refusal appealed to the Secretary of State. The appeal was on the basis that the developer had been willing to accept a condition that site development would not occur until vehicular access between the site and a nearby highway was achieved (a Grampian condition). The Secretary had issued a policy of not allowing Grampian conditions if these could not be fulfilled within the time-limit imposed by the planning permission and the developer’s appeal was rejected on this ground. Such a rigid application of policy was held to have bound the decision-maker’s hands and was thus unlawful – Merritt v Secretary of State for the Environment, Transport and the Regions [2000] 3 PLR 125. 2. Irrationality / Unreasonableness: defined as a decision where an error of reasoning “robs the decision of logic” (R v Parliamentary Commissioner for Administration ex p Balchin [1996] EWHC 152 (Admin), [1998] 1 PLR 1, at paragraph 27) Example: Planning permission was granted by Camden Borough Council (“CBC”) to change the use of a public house into a mixed retail and residential development. However, the conditions imposed on the development in order to mitigate the effects of noise and vibration were irrational because they could not achieve their objectives – Obar Camden Ltd v London Borough of Camden [2015] EWHC 2475 (Admin). 2 3. Procedural Unfairness: a. Legislation may demand that a certain decision may only made only after following a certain procedure such as holding a public inquiry, which must be followed; b. A decision-maker may not make a decision in which s/he has a personal interest – there does not need to be actual bias, only a real possibility of bias (also known as apparent bias); c. Anyone affected by a decision should ordinarily be given an opportunity to be heard and present their case to the decision-maker before the decision is made; d. In some circumstances, decision-makers have a duty to give reasons for their decisions –failure to do so may be unlawful. Examples Lord Hoffmann voted with two other Law Lords to declare that Augusto Pinochet could be prosecuted for crimes such as genocide. Amnesty International (“AI”) was given permission to intervene in Pinochet’s case to argue that he should be allowed to be prosecuted. Lord Hoffmann was later discovered to be a director of a company related to AI, thus giving the appearance that he was possibly biased against Pinochet, so the original order allowing him to stand trial was set aside – R v Bow Street Metropolitan Stipendiary Magistrates ex parte Pinochet Ugarte (No. 2) [1999] UKHL 1. A former chief constable was dismissed without being given an opportunity to present his case to the watch committee dismissing him – he was thus prevented from being heard in a decision which greatly impacted him, thus making the decision procedurally improper – Ridge v Baldwin [1964] AC 40. South Cambridgeshire District Council (“SCDC”) granted planning permission to a proposal by Cambridge City Football Club to build a football stadium on land which was part of the Green Belt. SCDC’s reasons for its decision were unclear, particularly when building on the Green Belt required reasons to show that the benefits of the stadium very clearly outweighed preserving the Green Belt. SCDC was thus required to give reasons, and its failure to do so was procedurally improper – Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71. 4. Legitimate expectation: in some circumstances, a certain policy, promise or representation made by a public official or body may give rise to an expectation that the policy, promise or representation in question will be followed, unless there is an overriding public interest against following the relevant policy, promise or representation (see for example In the matter of an application by Geraldine Finucane for Judicial Review [2019] UKSC 7).