CARF2798							30 April 1999

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

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IN THE MATTER OF AN APPLICATION BY UK WASTE MANAGEMENT LIMITED FOR JUDICIAL REVIEW

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CARSWELL LCJ

Introduction

	In this appeal the Department of the Environment for Northern Ireland (the Department), the planning authority for Northern Ireland, challenges a decision of Coghlin J given on 22 January 1999, whereby the judge made an order of mandamus ordering the Department to grant planning permission to the respondent UK Waste Management Limited (the Company) in the terms of a notice issued by the Department on 10 October 1997 in accordance with the provisions of Article 31(3) of the Planning (Northern Ireland) Order 1991 (the 1991 Order).  By the decision challenged in these proceedings the Department purported to defer granting planning permission to the Company for the development of a landfill site at Cottonmount, Mallusk, Co Antrim for the disposal of waste.  The Company claimed that the Department did not have power to defer the grant of permission and that under the terms of Article 31 it was bound to proceed without delay to the issue of planning permission on the terms of its notice.
The Statutory Framework
	Control of the development of land is regulated by the 1991 Order, which by Article 3(1) imposes upon the Department the duty of formulating and co-ordinating policy for securing the orderly development of land and the planning of that development.  Planning applications have to be made in the manner specified by a development order, which order was provided for in the Planning (General Development) Order (Northern Ireland) 1993.  Article 25(1) provides:
"25.-(1)	Subject to this Part, where an application is made to the Department for planning permission, the Department, in dealing with the application, shall have regard to the development plan, so far as material to the application, and to any other material considerations, and -

(a)	subject to Articles 34 and 35, may grant planning permission, either unconditionally or subject to such conditions as it thinks fit; or

(b)	may refuse planning permission."

	A special procedure is provided for major planning applications by Article 31:
"31.-(1)	Where, in relation to an application for planning permission, or an application for any approval required under a development order, the Department considers that the development for which the permission or approval is sought would, if permitted -

(a)	involve a substantial departure from the development plan for the area to which it relates; or

(b)	be of significance to the whole or a substantial part of Northern Ireland; or

(c)	affect the whole of a neighbourhood; or

(d)	consist of or include the construction, formation, laying out or alteration of a means of access to a trunk road or of any other development of land within 67 metres of the middle of such a road, or of the nearest part of a special road;

the Department may within two months from the date of the application serve on the applicant a notice in such form as may be specified by a development order applying this Article to the application.

(2)	For the purpose of considering representations made in respect of an application to which this Article applies, the Department may cause a public local inquiry to be held by the planning appeals commission.

(3)	Where a public local inquiry is not held under paragraph (2), the Department shall, before determining the application, serve a notice on the applicant indicating the decision which it proposes to make on the application; and if within such period as may be specified in that behalf in the notice (not being less than 28 days from the date of service thereof) the applicant so requests in writing, the Department shall afford to him an opportunity of appearing before and being heard by the planning appeals commission.

(4)	In determining an application to which this Article applies, the Department shall, where any inquiry or hearing is held, take into account the report of the planning appeals commission.

(5)	The decision of the department on an application to which this Article applies shall be final.

(6)	In this Article 'road' includes a proposed road and ' special road', 'trunk road' and 'proposed road' have the same meaning as in the Roads (Northern Ireland) Order 1980." 

This procedure is not reflected in the English planning legislation, and appears to be unique to Northern Ireland.
	Under Article 32 an applicant may appeal against the Department's refusal of planning permission to the Planning Appeals Commission, which may allow or dismiss the appeal or reverse or vary the planning decision.  It is provided by paragraph (2), however, that this procedure is not to apply to any application in relation to which the Department has served a notice under Article 31(1).  Article 33 provides for what is known as a "deemed refusal".  A decision must be given on a planning application within a period of two months (specified by Article 11 of the Planning (General Development) Order (Northern Ireland) 1993).  Unless this period is extended by agreement Article 32 is to apply as if the application had been refused at the end of the period.  Again, this does not apply to applications which have been made subject to the special procedure under Article 31.  It is apparent accordingly that applications to which the Article 31 procedure has been applied stand alone and that the procedure is intended to replace the ordinary arrangements for appeal against a refusal.
The Factual Background
	The Company has operated a landfill waste disposal site at Cottonmount Quarry since 1994, in pursuance of planning permission granted in 1989 following a public inquiry.  On 3 February 1995 it lodged with the Department an application for planning permission to extend the landfill operation on that site.  There followed a sequence of events which consumed a period of some three and a half years and then culminated in a decision by the Department to defer yet further the determination of the application, "pending development of the Department's Waste Management Strategy for Northern Ireland".  We are not called on to decide in this appeal whether this extraordinarily long delay can be justified, and we shall confine our conclusions to the issues before us.  We feel bound to say, however, that it reflects no credit on the operation of the system of planning control in the Province, and express the hope that it is an isolated instance.
	On 21 March 1995 the Department served a notice applying the special procedure contained in Article 31 of the 1991 Order.  It then commenced a process of advertising and consultation, interspersed with meetings and requests for information on a number of matters, which was still going on after the lapse of a good two years.  The Company's concern, not to say frustration, over the delay, appears clearly from the terms of a detailed letter written on 10 March 1997 by its managing director Mr Ian Wakelin to the Minister in charge of matters relating to the environment, then Mr Malcolm Moss MP.  In concluding this letter Mr Wakelin stated:
"The time has now come we believe for a decision to be made by your Department on Cottonmount.  For many months we have politely and patiently responded to the Department's requests for 'further information' and repeated re-advertising (to say that further information has been received and thus allow the handful of people who made the initial comments the chance to see the response).  If there is a major obstacle to the Department making a decision on the application we are not aware of it and, if we were, we would be happy to discuss solutions to it.  If there is not, we would very much appreciate a speedy resolution."

The Minister's Private Secretary eventually replied on 29 April 1997, setting out various reasons why the delay had been so great, declining on behalf of the Minister a request for a meeting, and stating that the Department would be seeking to have an Order containing new waste management legislation laid as soon as possible after the General Election, due to be held on 1 May.  He then stated:
"On a more positive note, all outstanding issues are nearing conclusion and the Department does not believe that a public inquiry will be necessary; indeed it expects to issue a decision on this proposal by way of a Notice of Opinion within the next month."

The promised notice of opinion was not in fact issued in May, and did not materialise until 10 October 1997.  That notice, issued under the terms of Article 31(3) of the 1991 Order, stated that planning permission for the development should in the opinion of the Department be granted, subject to a large number of detailed conditions.  The document concluded with several notes, numbers 1, 2 and 4 of which read: 
"1.	This is not the Department's final decision.  Article 31(3) of the Planning (Northern Ireland) Order 1991 provides that in the case of a major planning application, and where a public local inquiry is not held to consider the application, the Department shall before deciding the application, give notice to the applicant of its proposed decision.

2.	On receipt of the notice of opinion, the applicant, may, if he so desires, indicate to the Department within 28 days of receipt of the notice that he wishes to appear before and be heard by the Planning Appeals Commission.  If the applicant does not wish to have a hearing, he should inform the Department as soon as possible so that a final decision may be issued without delay.  If a hearing is required the applicant should write to the Department and this will be arranged by the Commission.

4.	The object of the hearing before the Commission is to give the applicant a full and fair opportunity of making all relevant representations on the merits of his application after hearing the reasons for the Department's proposed decision.  (A representative of the Department will be present at the hearing).  Before making its final decision, the Department will take fully into account the report of the Planning Appeals Commission, a copy of which will be made available to you."

The covering letter accompanying the notice drew attention to the notes and reminded the Company that if a hearing was not requested it should inform the Department as soon as possible, "so that a final decision may be issued without delay."
	The Company was reluctant to accept some of the conditions and sought clarification of others, and there followed a series of meetings and discussions and an exchange of letters.  By the summer of 1998 the Company's concern about the continuing delay in obtaining a final decision was mounting, and in a letter dated 10 June Mr David Wilson its Regional Manager was seeking an early resolution of the matter.  In that letter he stated that the Company would be prepared, notwithstanding its concern over the content of some of the conditions, to accept the conditions if it facilitated the issue of a consent for the proposal.  By letters of 24 June and 17 July 1998 the Company continued to press for a decision.  In the former it confirmed that it accepted the conditions in the proposed decision.  On 12 August 1998 the Minister's Private Secretary replied to say:
"The Minister has asked me to say he feels he has sufficient information before him on all the relevant issues relating to the application to enable a decision to be reached on the way ahead."

	The Department then sent a letter dated 21 August 1998, by which it notified the Company of a proposal to defer determination of the planning application.  The letter was in the following terms:
"I refer to recent discussions and meetings with officials together with recent correspondence from both the Minister (Lord Dubs) and the Planning Service.

You are no doubt aware that a draft Waste Management Strategy for Northern Ireland (copy enclosed) was published on 30 June by the Department of the Environment for Northern Ireland ('the Department').  No Government Waste Management Strategy has ever been applicable to Northern Ireland.  That draft is currently subject to public consultation until 30 November 1998.

The Minister apprehends that information and representations of relevance to your application will emerge during that consultation period.  He is further concerned that to make a decision on your application at this stage might be premature since it could pre-determine the balance, nature and number of the waste disposal methods and facilities which will be determined by the Waste Management Strategy once finalised.  That Strategy, once finalised, shall determine, on a uniform regional basis, integrated waste management methods and facilities which will be in the long-term environmental and economic interests of the community in Northern Ireland.

The Department now proposes to defer determination of your application pending development of the Department's Waste Management Strategy for Northern Ireland.  The Department invites you to make such representations as you think fit on this proposal, prior to a decision being made.  Please let us have any representation within 14 days.  Thereafter you will be notified of the Department's decision on whether or not to defer determination of your application.  This approach is being taken to all other such applications."

The reasons underlying this decision were set out in paragraph 6 of an affidavit sworn by Mr PJ McBride on 23 October 1998 on behalf of the Department:
"The events of summer 1998 culminated in a meeting attended by the Minister and senior Departmental officials on 7 August 1998.  Following this meeting the Minister decided that it would be appropriate to defer determination of the Applicant's planning application.  He considered that the draft Waste Management Strategy, published on 30 June 1998, was a material consideration.  He was aware that this draft Strategy would be the subject of a detailed consultation process until 30 November 1998.  He apprehended that information and representations of relevance to the subject application would emerge during the consultation period.  He was of the opinion that to make a determination of the application at that stage could be premature as it could predetermine the balance, nature and number of the waste disposal methods and facilities which will be determined by the Waste Management Strategy once finalised.  This Strategy, when adopted, will be the first of its kind in Northern Ireland.  When completed if will determine, on a uniform regional basis, integrated waste management methods and facilities which will be in the long-term environmental and economic interests of the community in Northern Ireland."

The process of consultation and consideration of options for waste management had begun in March 1997 and the draft Waste Management Strategy was issued in June 1998.
The Application for Judicial Review
	The Company did not make any further representations, but instead made an application on 11 September 1998 for leave to apply for judicial review, leave being granted on 14 September.  The grounds set out in its statement were as follows:
"(1)	Having issued the Notice of Opinion and in the absence of the Applicant seeking an Inquiry or objecting to the proposed conditions, the Department is now required to grant Planning Permission in accordance with the Notice.  The purpose of the Notice procedure laid down in Article 31 of the Planning Order (NI) 1991 is to represent the notified conditions so as to obtain more speedily the Planning Permission.  The Notice sets out the considered view and decision of the Department subject only to an Applicant who is discontented with an indicated refusal or with the indicated conditions being entitled to seek an Inquiry to pursue his Application so as to attempt a better result.

	The Department has no power, therefore, to refrain from issuing a decision, as it is clearly doing in this case, and to issue a different one from that stated in the Notice.  It is the decision subject only to the opportunity it gives to an Applicant hitherto unaware of the proposed decision to seek an Inquiry in order to seek a different view.  Once that opportunity is not taken, the duty follows to issue the notified decision.

(2)	The delay of the Department is prejudicial to the commercial interest of the Applicant, a matter known to the Department.  The Department has sufficient information on all the relevant issues relating to the Application as accepted in the letter from the Private Secretary to the Minister for Agriculture and the Environment of the 13th [sic] August 1998.

(3)	Such other grounds as arise from the Affidavits herein and the documents exhibited thereto as this Honourable Court may seem just and meet."

	The application for judicial review came on for hearing before Coghlin J on 7 December 1998, and by a written judgment delivered on 22 January 1999 the learned judge gave a decision in favour of the Company.  He made an order of mandamus commanding the Department forthwith to issue the planning permission sought by the applicant as notified in the Department's notice dated 10 October 1997.  His conclusion appears at page 12 of his judgment:
"In this case the Department notified the applicant that it proposed to grant planning permission subject to a number of conditions, a decision which the applicant was prepared to accept in full, without seeking his right of recourse to the PAC.  In such circumstances, it seems to me that the applicant was entitled to expect that, provided it complied with the relevant conditions, the Department would confirm a favourable final decision in accordance with the notice.  In my opinion, article 31(3) of the 1991 Order reflects the intention of Parliament to provide for those planning applications, in respect of which, despite their importance, the Department is able to reach a determination without incurring the expense, uncertainty and delay of a public local inquiry, subject to the right of the applicant to seek a hearing before the PAC.  The second paragraph of the Notes for Guidance attached to the respondent's Notice of Opinion dated the 10th October 1997 specifically states that:-

'If the applicant does not wish to have a hearing, he should inform the Department as soon a possible so that a final decision may be issued without delay.'

In my view, on the true construction of article 31(3) of the 1991 Order, in the absence of any request on the part of an applicant for a hearing before the PAC the respondent is subject to a duty to issue a final decision in accordance with the Notice of Opinion without delay."

In reaching this conclusion the judge accepted at page 10 of his judgment, contrary to the Company's submission, that the Department had a general power to defer determination of a planning application.  He held, however, that once a notice had been issued under Article 31(3) it was bound to proceed to confirm it once any conditions had been accepted by the applicant.

The Issues on Appeal
	At the hearing before us Mr Weatherup QC put forward the following arguments on behalf of the Department:
1.	On the true construction of Article 31 of the 1991 Order the Department was not bound to grant planning permission in accordance with the terms of a notice issued under paragraph (3).  It was entitled in the exercise of a proper discretion to change its view and refuse permission or amend the conditions.  
2. 	It was also entitled to defer a decision for sufficient reason, which was constituted in the present case by the need to wait for the Waste Management Strategy to be finalised in order to have regard to it. 
Mr Hicks QC for the Company sought to uphold the judge's conclusion that the Department had to issue a planning permission on the terms of the Article 31(3) notice once the conditions had been accepted.  He submitted, however, that if the Department was not so bound the judge was wrong in holding that it had power to defer a planning decision, and that its only powers were to grant or refuse permission.  
Obligation to Issue a Planning Permission  
	Since there is no equivalent of Article 31 in legislation applying elsewhere in the United Kingdom, we have not been able to derive assistance from decisions of other jurisdictions, and we have found nothing in Hansard which would throw any light on the intention of Parliament in enacting the provisions of this Article. The structure of the Article 31 procedure is such that one might regard the issue of the notice under paragraph (3) as equivalent to the grant of permission on an ordinary planning application and the appearance before the Planning Appeals Commission to an appeal under Article 32.  On this approach it could perhaps be said that the issue of the notice is a final act, subject to the applicant's right to be heard by the Planning Appeals Commission, and the Department cannot go back on it.  When one construes the words of the Article, however, it seems to us inescapable that the notice is not to be equated with a grant of permission.  The words "before determining the application" in our view are inconsistent with such a conclusion and leave no doubt that the notice is not to be regarded as the final determination of the planning application.
The judge recognised this in the passage which we have quoted from page 12 of his judgment when he held that the Department was "subject to a duty to issue a final decision in accordance with the Notice of Opinion without delay" (our emphasis).  He reached the conclusion, however, that the Department could only frame that final decision in accordance with the terms of the notice, so leaving it no discretion to change its mind, whether because of supervening events or other sufficient reason.  We are unable to agree with this conclusion.  An applicant for planning permission who has received a notice under Article 31(3) indicating the Department's proposed decision is no doubt entitled to expect that this will be implemented in the absence of some good reason to the contrary.  We consider, however, that it must still be open to the Department to change its mind for sufficient reasons and give a different final decision on the application.  There must always be room, within certain limits, for a public authority to change tack in its administration of matters with which it has to deal: cf the observation of Lord Russell of Killowen in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1073.  If the Department were debarred from changing its view and giving a different final decision, there would be no room for amendment of its proposal if supervening events – such as, for example, the issue of a European directive – were to make it desirable in the public interest that the original proposal should not be adopted.  It may well be that reconsideration of the wisdom of the proposed decision would be sufficient to allow amendment of the proposal, but we do not find it necessary to decide that.  In the present case the draft Waste Management Strategy for Northern Ireland was published in June 1998, and it was quite appropriate that permission for a major landfill development should be considered in the light of the strategy when it was finalised.  It may be thought strange that this point had not been taken at the time of the issue of the notice in October 1997, for matters were by then proceeding towards the formation of a definitive strategy and the need for the decision to harmonise with a Province-wide strategy for waste management must have been clearly visible.  We accept nevertheless that once it was established that a definitive strategy would be adopted within a reasonable time, the Department could properly adopt the view that a final decision should not be given on the present planning application until it was clear that it harmonised with the strategy.
Power to Defer Planning Decisions
	The issue then arises whether the Department was entitled to defer a decision on the application, as it purported to do by its letter of 21 August 1998.  The judge accepted the submission advanced on behalf of the Department that a planning authority has a general power to defer a decision on a planning application, but this was challenged on behalf of the Company on appeal before us.  The Company did not raise this issue by a respondent's notice, but since it appears to us desirable to determine the issue rather than merely reverse the judge's decision and leave the matter unresolved, we propose to come to a conclusion on it.
	Mr Weatherup argued that the planning authority has an implied power to defer consideration of a planning application and that the options specified in Article 25(1) of the 1991 Order, to grant or refuse planning permission, are not exhaustive of those open to it.  He submitted that this could be regarded as an example of ellipsis in drafting, discussed in Bennion, Statutory Interpretation, 3rd ed, pages 382-3.  We are of opinion, however, that the implication of such a power in cases to which Article 31 has not been applied would be inconsistent with the provisions of Article 33, whereby an application is deemed to be refused after the expiry of two months unless an extended period is agreed upon in writing.  If the Department had power to defer consideration of an application, it would stultify the operation of this provision.  
	The decision of the English Court of Appeal in Wyre Forest District Council v Secretary of State for the Environment (1989) 58 P & CR 291 was drawn to our attention, but we do not consider that it assists the Department.  In that case the court was considering the validity of the conclusion of an inspector conducting a planning appeal, the issue being whether he could properly conclude in favour of the applicant when another inspector was about to conduct a local plan inquiry and might reach a different conclusion on the use of the land.  At pages 298-9 Slade LJ stated that there were several courses open to an inspector in such a situation, one being to defer his decision until after the local plan inquiry.  It is to be observed, however, that this statement was made in the context of a planning appeal, not an application to the planning authority for permission to develop.  It does not in our view affect the issue of the planning authority's powers on receipt of a planning application, which are governed by the provisions of the 1991 Order.  
For the reasons which we have given we consider that the Department does not have power to defer an application which is not made subject to the Article 31 procedure. It is true that the deemed refusal under Article 33 does not apply when the Article 31 procedure is invoked – there is very good reason for this omission, since investigations in major planning applications of this type may consume much more time.  We do not consider that this is sufficient to give rise to an implied power to defer consideration of an application when under the statutory scheme for other planning applications the Department does not have such a power.  It may take such time as it reasonably needs to complete its investigation, consultation, discussions etc, but once it has completed this process, as it clearly had done in the present case, it must in our view make a decision one way or the other.  We accordingly are of the opinion that the Department did not have power to defer reaching a decision on the present application.  It could, if it thought it an appropriate case, have refused permission, on a "without prejudice" basis, on the ground of prematurity, a well-recognised possible course of action (see the discussion in Dowling, Northern Ireland Planning Law, page 116 and the authorities there cited).
Conclusion
	For the reasons which we have given we do not consider that the order of mandamus made by the judge was correct and we shall pro tanto reverse his decision.  The Department did not, however, have power to defer consideration of the planning application, and it should forthwith determine the application, by either granting permission or refusing it.  We propose therefore to make an order of certiorari quashing the decision to defer determination of the planning application, which was notified to the Company in the Department's letter of 21 August 1998, and an order of mandamus directing it to determine the Company's planning application.  We shall hear counsel on the length of time within which that step is to be carried out.

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

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IN THE MATTER OF AN APPLICATION BY UK WASTE MANAGEMENT LIMITED FOR JUDICIAL REVIEW

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J U D G M E N T

O F

CARSWELL LCJ

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