Duff's (Gordon) Application (Leave stage) and in the matter of a decision of Causeway Coast and Glens Borough Council
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Judgment Date | 10 February 2022 |
| Neutral Citation | [2022] NIQB 11 |
| Date | 10 February 2022 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2022] NIQB 11
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: SCO11759
ICOS No: 21/078576/01
Delivered: 10/02/2022
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY GORDON DUFF
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF A DECISION OF
CAUSEWAY COAST AND GLENS BOROUGH COUNCIL
___________
The applicant, Mr Duff, appeared in person
Kevin Morgan (instructed by Causeway Coast and Glens Borough Council Legal
Services) appeared for the proposed respondent
Richard Shields (instructed by Shean Dickson Merrick Solicitors) appeared for the
interested party
___________
SCOFFIELD J
Introduction
[1] By this application the applicant, Mr Duff, seeks leave to apply for judicial
review of a decision of Causeway Coast and Glens Borough Council (‘the Council’)
to grant planning permission (reference LA01/2020/1235/O) in relation to a site
between 51 and 53 East Road, Drumsurn.
[2] The Council conceded from an early stage that it would not oppose the
application and, indeed, reached agreement with the applicant to this effect, on the
basis that no order for costs would be made against the Council. To this end, the
Council’s response to the applicant’s pre-action correspondence said that it had been
decided that his claim “will be conceded in full to avoid the incurring of legal costs”
and that it would consent to the court being invited to quash the permission.
However, the planning applicant, Mr Alex McDonald, who was the beneficiary of
the impugned permission, took a very different view. He opposes the quashing of
his planning permission on a variety of bases; and has instructed both legal
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representatives and a planning consultant to mount a case on his behalf against the
grant of leave.
[3] In light of the interested party’s opposition to the grant of leave or any relief,
the matter was listed for a full leave hearing. Mr Duff appeared in person. The
Council was represented by Mr Morgan, of counsel; and Mr McDonald was
represented by Mr Shields, of counsel. I am grateful to all parties for their helpful
submissions.
Factual Background
[4] This case concerns – as many of Mr Duff’s challenges do – the grant of
planning permission in the countryside for an ‘infill’ dwelling, that is to say, a
dwelling which is considered permissible under Policy CTY8 of Planning Policy
Statement (PPS) 21 as filling a small gap in an otherwise substantial and
continuously built up frontage in the countryside. The policy provides (in the
relevant part) that:
“Planning permission will be refused for a building which
creates or adds to a ribbon of development.
An exception will be permitted for the development of a
small gap site sufficient only to accommodate up to a
maximum of two houses within an otherwise substantial
and continuously built up frontage and provided this
respects the existing development pattern along the
frontage in terms of size, scale, siting and plot size and
meets other planning and environmental requirements.
For the purpose of this policy the definition of a
substantial and built up frontage includes a line of 3 or
more buildings along a road frontage without
accompanying development to the rear.”
[5] Mr McDonald has been granted permission for a dwelling in a gap between
Nos 51 and 53 East Road, Drumsurn, near Limavady. This is a small roadside field,
located in a rural area, of predominantly agricultural character, outside of any
settlement as defined in the Northern Area Plan 2016. Mr McDonald contends that
the Council was right to consider that his application complied with planning policy
and, in particular, that it was entitled to consider that the proposal was for a small
gap site within an otherwise substantial and continuously built up frontage
comprising Nos 51, 53 and 55 East Road.
[6] A previous application (B/2012/0155/O) which was made before planning
functions were transferred to district councils was refused by the Department of the
Environment on the basis that the proposal would result in ribbon development
along East Road and fail to integrate in the landscape, resulting in a suburban style
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