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In the matter of an application by Ellen Doyle for leave to apply for judicial review [2014] NIQB 82

DATE: 20 Jun 2014

Delivering a reserved judgment following a full day hearing on 11 June 2014, Treacy J. dismissed an application by Ellen Doyle for leave to apply for judicial review of the decision of the Planning Appeals Commission to allow the University of Ulster's appeal against the refusal of planning permission for a 350-space multi storey car park the provision of which is a condition precedent of a separate planning permission granted by the Department of Environment for a £300million regeneration scheme in north Belfast, including a new campus for the University, described in the Commission's decision as "the most significant regeneration scheme in Belfast city centre for the next 5-10 years"

The grounds of challenge included alleged breaches of the Environmental Impact Assessment Directive and Regulations and a failure to deal lawfully with the issue of alternatives to the location of the car park scheme. 

The applicant had submitted that, as a person in need of affordable housing, she had a sufficient interest in the PAC’s decision (and thus had standing to bring the judicial review challenge) because the site was allocated for affordable housing instead of the proposed development.

Having noted that the applicant had not responded to the public advertisement of the University’s planning application or to the subsequent public advertisement of its appeal to the PAC, Tracey J. concluded that her claimed ignorance of these advertisements was not sufficient to justify allowing her standing to challenge the PAC’s decision notwithstanding her non-participation. At paras. 9-12 he held:

“[9]     Thus the applicant did not participate at any stage of the process. Of that there is no doubt. Notwithstanding these public advertisements and the considerable  publicity prior to and following the PAC  decision, the applicant  avers that she did not find out about the impugned decision until on or around 17 April 2014 – the impugned decision having been made on 6 February 2014.

[10]     The clear legislative purpose  underpinning  Art21 and Art32(6) of the 1991 Order is that following the prescribed public advertisement any member of the public with an interest in the application/appeal has been given a reasonable opportunity to become aware of it and make representations if they so wish.

[11]     I accept the submission of the PAC that where, as here, members of the public are provided with a reasonable opportunity to participate in a quasi-judicial process, a person who does not so participate cannot ordinarily be said to have a sufficient interest in the outcome of that process.  In Axa [2011] UKSC 46 Lord Reed at para170  said:

“…a requirement that the Applicant demonstrate an interest in the matter complained of will not however work satisfactorily if it is applied in the same way in all contexts…..What is to be regarded as sufficient interest to justify a particular applicant bringing a particular application before the court, and thus as conferring standing, depends therefore on the context, and in particular  what will best serve the purpose of judicial review in that context.”

In Walton v Scottish Ministers [2013] PTSR 51  the Supreme Court (in the context of a statutory challenge in relation to which standing was confined to “persons aggrieved”), held that whilst:

“[87]… there are circumstances in which a person who has  not participated in the process may none the less be “aggrieved”: where for example an inadequate description of the development in the application and advertisement could have misled him so that he did not object or take part in the inquiry …. it will “ordinarily … be relevant to consider whether the applicant stated his objection at the appropriate stage of the procedure, since that decision is designed to allow objections to be made and a decision then to be reached within a reasonable time, as intended by Parliament”.

At para[96] Lord Reed went on to say:

“…I have listed the various factors which support Mr W’s entitlement to bring the present application as a ‘person aggrieved’. Mutatis mutandis, those factors  would also have given him standing to bring an application for judicial review…”

[12]       It is noteworthy that the example given by Lord Reed is of someone who was misled so that he did not object or take part in the statutory process. Mere ignorance is not given as an example. There is a clear distinction between a misleading advertisement depriving interested persons of a reasonable opportunity to participate and an accurate advertisement which gives interested persons such an opportunity. Being unaware of the advertisements cannot be a sufficient basis to confer standing. It would undermine the clear statutory purpose underpinning Art21 and Art32(6) that the advertisements pursuant to those sections are intended to be sufficient to provide interested parties with a reasonable opportunity of participating in the statutory planning process. Further, it would introduce uncertainty since a person not involved in the process could, as here, emerge late in the day to mount a challenge including seeking to rely on points not taken by any of the participants in the appeal and even though better placed challengers who actually participated in the process have not sought judicial review.

[13]       For the above reasons I conclude that the applicant does not have sufficient interest to bring this application.”

Treacy J. also held that the non-EU grounds should be refused leave on grounds of delay, and that all the grounds were in any event unarguable.

Charles Banner (instructed by James Turner of O'Reilly Stewart Solicitors) appeared for the Planning Appeals Commission, whose submissions were accepted in their entirety.