High Court of Justice in Northern Ireland Queen's Bench Division Decisions

The grounds for judicial review

"The Department permitted the [visibility] splays in the absence of any speed survey or assessment of the actual speeds recorded on the road network (as adjusted in accordance with guidance).

The Department further failed to have regard for the fact that exceptional circumstances that might permit a reduction of sight splays do not exist at the locus and that in any event the distances permitted fell far below the minimum permitted distances.

The Department sought to relax splays beyond that permitted in the relevant policy without any evidence upon which to ground such an approach."

The planning policy issue was stated as follows:-

"The Department failed to apply planning policy PPS 8 to the notice parties planning application; alternatively it failed to consider whether PPS 8 applied to the application or whether its terms were relevant to the decision whether to grant planning permission."

The grant of planning permission

"Planning permission will only be granted for development proposal involving direct access, or the intensification of the use of an existing access, onto a public road where –

(a) Such access will not prejudice road safety or significantly inconvenience the flow of traffic….

The acceptability of access arrangements, including the number of access points onto the public road, will be addressed against the Department's publish guidance. Consideration will also be given to the following factors :

the nature and scale of the development;

the character of existing development;

the contribution of the proposal to the creation of equality environment, including the potential for urban/village regeneration and environmental improvement;

the location and number of existing accesses; and

the standard of the existing road network together with the speed and volume of traffic using the adjacent public road and any expected increase."

Under the heading "Justification and Amplification" PPS 3 states -

"5.16 Development Control Advice Note 15 'Vehicular Access Standards' sets out the current standards for site lines, radii, gradient etc. that will be applied to both new access and intensified use of an existing vehicular access on to existing public roads….

5.17 It is recognised that it may not always be practicable to comply fully with the appropriate visibility standards. Such standards, like all material considerations, need to be assessed in light of the particular circumstances of the individual case. Exceptionally a relaxation in standards may be acceptable in order to secure other important planning objectives. Visibility standards, however, will not be reduced to such a level that danger is likely to be caused."

Note 3 to Table A states that "If there is a dispute about the predicted minor road (access) traffic flow, it shall be determined by reference to a recognised database such as TRICS, or failing that by a direct survey of a similar existing development over an acceptable period."

Note 1 to Table B states that "In exceptional circumstances a reduction in the visibility standards may be permitted where, in the judgment of the Department, danger to road users is not likely to be caused. Where exceptional circumstances are considered to exist, it is highly unlikely that the Department will permit visibility standards which fall below the figures in the square brackets."

Note 7 states that "Where actual speed falls between the given values the Y distance may be interpolated."

[13] Douglas Black, a roads engineer engaged by the applicant, contested the access traffic figure at 60 vehicles per day. He referred to the activities carried on at the club, the membership numbers of the sections of the club and the increased capacity of the proposed premises to suggest a higher level of access traffic. He also contested Mr Loughlin's assertion that road traffic was light, as assessed at 3,000 vehicles per day, and referred to traffic and travel information published by Roads Service where the nearest automatic traffic counter site to the location of the club recorded an average daily traffic flow of 4,800 vehicles in 2005. Further he contested Mr Loughlin's road speed of 50mph. Mr Black surveyed traffic speeds in May 2006 and concluded that the speeds were 52 to 53 mph.

The planning policy issue

[25] However, if the proposal did involve outdoor recreational use in the countryside the criteria to be met include:

"(v) public safety is not prejudiced and the development is compatible with other countryside uses in terms of the nature, scale, extent and frequency or timing of the recreational activities proposed;

(viii) the road network can safely handle the extra vehicular traffic the proposal will generate and satisfactory arrangements are provided for access, parking, drainage and waste disposal."

there is no unacceptable impact on the amenities of people living nearby by reason of the siting, scale, extent, frequency or timing of the sporting activities proposed, including any noise or light pollution likely to be generated.

the road network can safely handle the extra vehicular traffic the proposal will generate and satisfactory arrangements are provided for site access, car parking, drainage and waste disposal.

The handling of objections from those who receive neighbour notification.

"[19] As I find in favour of the applicant on the first ground it is not necessary to deal with the issue of procedural fairness. However as there was considerable argument on this ground I make the following observations. The respondent is under a duty to deal with applications for planning permission in accordance with the requirements of procedural fairness. This duty extends to objectors and may require the respondent to provide objectors with an opportunity to make additional representations. In the first instance the Department operates a system of neighbour notification which applied in the present case and resulted in objections being submitted by a number of neighbours. The grounds of objection included the two grounds relied on by the development control group in forming its initial preliminary opinion to refuse planning permission in March 2000. The objectors were not made aware of the revised scheme submitted by the developer in January 2001 or the respondent's revised preliminary opinion to grant planning permission in April 2001 and became aware of the position only after the final decision was made in October 2001.

[20] In R v Monmouth District Council ex parte Jones & Ors [1987] 53 P&CR 108 an application for further development of the site was approved by the planning committee of the Council and was then to come before the full Council. An objector re-examined the plans and found they had been amended and were inaccurate and the matter was referred back to the planning committee. However the planning committee endorsed its previous decision without hearing any representations from the objectors. Woolf J granted the application for judicial review on the basis that the requirements of fairness in the circumstances required that the objectors be allowed to make representations on the amended plans and that such representations might have affected the outcome of the application for planning permission.

[21] The respondent submitted that it was not necessary, further to any of the amendments made to the developer's application, to re-advertise the application or to issue further notices to the objectors, because there had been no substantial change to the proposed development. I accept that the amendments did not effect a substantial change in the proposed development. The amendment of preliminary opinions was described as commonplace. I accept that such amendment would not of itself require notice to the objectors. In the present case there was a lengthy period of consultation between the respondent and the developer in relation to the objections to the development, as the developer attempted to overcome the objections. During that time the objectors had no notice of the evolution of the application.

[22] Objectors are in a position to keep themselves aware of the progress of applications as they are entitled to consult the planning service and to consider the plans, but fairness requires that there be reasonable limits on the extent to which the onus remains on the objector to discover the current state of the application. By August 2000 the developer's amendments had been rejected. Then the process effectively began another cycle. In January 2001 the revised schemes were submitted and the application came back to the development control group for reconsideration in April 2001, over one year after initial consideration, at which stage the preliminary opinion was altered to one of approval of the amended proposal. Had the revised scheme involved what the respondent regarded as substantial changes to the proposal then notice would have been given to the applicant. I consider that fairness would require notice to objectors not only where there had been a substantial change to the application but also where there had been any other significant change of circumstances that might affect the outcome of the application.

[23] When a matter goes to the Council and is deferred for consideration at a meeting, it will be apparent to objectors that amendment of the proposal is in prospect and amendment of the preliminary opinion may follow. But when that amendment takes place and is rejected by the respondent, and after a lapse of time the developer then submits a revised scheme that the respondent considers may affect the preliminary opinion, in my opinion there has been a significant change of circumstances. When that happens, fairness requires that the objectors have notice of the proposed reconsideration, or at least of the amended preliminary opinion, so that they may be placed in a position to make representations on the revised scheme.

[24] It might be suggested that it would be difficult for the respondent to know that there had been such a degree of change of circumstances as could be said to be significant. To that suggestion I would say that the respondent presently determines whether the degree of change of the development proposals could be said to be substantial and apparently is able to do so without particular difficulty. Each case will, of course depend on its own particular facts but there is no reason to anticipate undue difficulty in identifying those cases where rejected amendments have resulted in a delayed relaunch of the proposal leading to active consideration being given to amendment of the respondent's position.

[25] As to whether any representations might have had any effect in the circumstances of the present case, I am satisfied that the objectors would have relied on the proper nature of the character objection and the respondent would have taken into account the full extent of that material consideration. It is at least distinctly possible that representations by objectors would have made a difference to the outcome of the application."