Portinode Environmental Limited Application for leave to apply for Judicial Review and in the matter of a decision of Fermanagh and Omagh District Council
| Jurisdiction | Northern Ireland |
| Judgment Date | 18 March 2021 |
| Neutral Citation | [2021] NIQB 31 |
| Date | 18 March 2021 |
| Court | Queen's Bench Division (Northern Ireland) |
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Neutral Citation No: [2021] NIQB 31
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: SCO11452
ICOS No: 19/059411/01
Delivered: 18/03/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY PORTINODE ENVIRONMENTAL
LIMITED FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF A DECISION OF
FERMANAGH AND OMAGH DISTRICT COUNCIL
___________
Mr Conan Fegan BL (instructed by Phoenix Law, Solicitors) for the applicant
Mr Philip McAteer BL (instructed by Derry City & Strabane District Council Legal
Services Department) for the proposed respondent
___________
SCOFFIELD J
Introduction
[1] This is an application for leave to apply for judicial review which has been
dogged by a variety of procedural difficulties for quite some time. I heard the
application for leave at the same time as considering an interlocutory a pplication
brought (unusually, in advance of the application for leave being determined) by the
proposed respondent challenging the propriety of the applicant bringing these
proceedings; and asking the court to strike out the proceedings on the bases
described below.
[2] I am grateful to Mr Fegan who appeared for the applicant, and to Mr McAteer
who appeared for the proposed respondent, for their helpful written and oral
submissions.
The history of these proceedings
[3] The decision under challenge in these proceedings is a grant of planning
permission made by Fermanagh and Omagh District Council (‘the Council’) on
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21 March 2019. The grant of planning permission was for the construction of six
self-catering holiday cottages in a rural location beside Lough Erne.
[4] Subject to the discussion below as to whether the proceedings were validly
brought as a matter of law, the proceedings were initially lodged with the court on
19 June 2019, within the 3 month time limit for the initiation of proceedings from the
date on which the grounds of challenge arose pursuant to Order 53 rule 4 of the
Rules of the Court of Judicature (NI) 1980 (the ‘RsCJ’). The proceedings were
brought in the name of Portinode Environmental Limited (‘Portinode’ or ‘the
Company’) and were supported by an affidavit from Mr Gordon Duff sworn on 19
June 2019. Mr Duff’s affidavit stated, inter alia, that he was employed as a director of
the Company, which had been incorporated that same day (19 June 2019) with the
objective “to monitor the environment, promote conservation, preserve rural character and
challenge planning decisions detrimental to Portinode, Lough Erne and Fermanagh.”
[5] The affidavit also explained that the applicant company was “aware of and
reflects numerous objections from the holiday home owners and local residents who believe
this approved development is totally inappropriate and unlawful…” and who objected to
its detrimental impact on the environment and on existing residents and guest house
businesses in the area. It further explained that the sole shareholder of the applicant
company (at that point, at least) was Mr Steven Johnston, who owns a holiday home
adjacent to the approved development which, it was contended, would be affected
by the proposed development. The “status and circumstances” of the applicant’s sole
shareholder was said to give the applicant company standing to bring the
proceedings.
[6] By way of Case Management Direction Order No 1 in these proceedings,
made on 1 July 2019, McCloskey J (as he then was) raised a number of issues about
the applicant company in the following terms:
“It is far from clear that the Applicant has sufficient standing to
bring these proceedings. Further, or alternatively, it is not clear
that the proceedings are a proper invocation of the process of the
High Court. A series of questions arises. Why is Mr Johnston
not bringing this case in person? Why has he not sworn an
affidavit? Why has no director, shareholder or officer of the
company sworn an affidavit? …”
[7] A number of these queries were answered in a series of further affidavits filed
over the following months. In the meantime, the court’s case management direction
order invited the proposed respondent to signify its approach to the application for a
protective costs order which had been contained in the applicant’s papers and
“whether it is minded to bring any particular application before the court at this stage”,
further directing that “no further cost incurring steps should be taken by the council”
other than those directed.
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4 cases
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Duff's (Gordon) Application (Leave stage) and in the matter of a decision of Causeway Coast and Glens Borough Council
...[2020] NIQB 25. A small number of them have been permitted to proceed: see my judgment in Re Portinode Environmental Ltd’s Application [2021] NIQB 31. Mr Duff has also issued a further 25 or so cases since then, many of which have been dealt with in another ruling given today: see Re Duff’s......
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Clogher Environmental Group Limited for leave to apply for Judicial Review and in the matter of a decision of The Planning Appeals Commission
...given judgment in two related applications for leave to apply for judicial review – Re Portinode Environmental Limited’s Application [2021] NIQB 31 (‘Portinode’) and Re Rural Integrity (Lisburn 03) Limited’s Application [2021] NIQB 32 (‘Rural Integrity ‘03’’) – which, like this case, have b......
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Portinode Environment Limited's Application and in the matter of a decision of Fermanagh and Omagh District Council
...holiday cottages in a rural location beside Lough Erne. I granted leave on limited grounds against an unusual procedural backdrop: see [2021] NIQB 31. [2] I am grateful to Mr Fegan who appeared for the applicant, and to Mr McAteer who appeared for the respondent, for their helpful written a......
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Rural Integrity's (Lisburn 03) Application for leave to apply for Judicial Review and in the matter of a decision of Lisburn and Castlereagh City Council
...today given judgment in a related application for leave to apply for judicial review – Re Portinode Environmental Limited’s Application [2021] NIQB 31 (‘Portinode’) – which, like this case, has been dogged by a variety of procedural difficulties for quite some time. The two applications wer......