River Faughan Anglers Limited’s Application
| Jurisdiction | Northern Ireland |
| Judge | Treacy J |
| Judgment Date | 13 March 2014 |
| Neutral Citation | [2014] NIQB 34 |
| Date | 13 March 2014 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2014 |
1
Neutral Citation No. [2014] NIQB 34
Ref: TRE9214
Judgment: approved by the Court for handing down Delivered: 13/03/2014
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
River Faughan Anglers Limited’s Application [2014] NIQB 34
IN THE MATTER OF AN APPLICATION BY RIVER FAUGHAN ANGLERS
LIMITED FOR JUDICIAL REVIEW
AND
IN THE MATTER OF A DECISION BY THE DEPARTMENT OF THE
ENVIRONMENT FOR NORTHERN IRELAND (PLANNING SERVICE) ON
13 SEPTEMBER 2012 TO GRANT PLANNING PERMISSION
________
TREACY J
Introduction
[1] The applicant, River Faughan Anglers Limited (“RFA”), challenges a decision
of the Department of Environment (Planning Service) (“the Department”) dated
13 September 2012 whereby it granted planning permission for development of land
at 91 Glenshane Road, Drumahoe, Co Londonderry, consisting of retention of
extension to site office, extension to vehicle maintenance shed and improved wash
out facilities, relocation of settlement lagoons, site drainage works, associated
landscape and environmental improvements.
[2] The permission relates to part of a wider operation at this site by W&J
Chambers Ltd for the manufacture of concrete products and the distribution of sand
and gravel. The impugned permission is in part retrospective, but prospective
mainly in respect of the relocation of the settlement lagoons. The use of the site has
historically been carried out without planning permission, however activity beyond
that covered by the impugned permission is now considered immune from planning
control by the respondent, due to the respondent’s failure to take enforcement action
in time.
2
Order 53 Statement
[3] The applicant sought the following relief:
“(a) an order of certiorari to ... quash the decision of
the Department dated 13 September 2012
(ref. A/2008/0408/F);
(b) a declaration that the Department acted in
breach of the EIA Regulations (and EU Directive
85/337/EEC, as amended (and consolidated by EC
Directive 2011/92/EU) by failing to require the
preparation of an environmental statement in
connection with the application;
(c) a declaration that the Department acted in
breach of the Habitats Regulations (and the Habitats
Directive) by failing to properly carry out an
appropriate assessment;
(d) a declaration that the said decision is unlawful,
ultra vires and of no force or effect;
(e) an order for mandamus to compel the
Department to adjudicate upon and re-determine the
application for planning permission
(ref. A/2008/0408/F) in a proper and lawful manner;
...”
[4] The very detailed grounds on which relief was sought are:
“9. The Department acted unlawfully and in breach
of the EIA Regulations and EIA Directive by failing to
require the preparation of an environmental statement
in connection with the application which led to the
impugned permission:
(a) Regulation 4(1) of the EIA Regulations prohibits
the grant of planning permission for EIA development
without consideration of environmental information
including an environmental statement;
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(b) Regulation 9 of the EIA Regulations required a
determination as to whether the proposed
development, which fell within Schedule 2, amounted
to EIA development by reason of its likely significant
environmental impact, having regard to selection
criteria in Schedule 3 (and Article 4.3 of the Directive);
(c) The Department erred in making its
determination under Regulation 9:
i. in so far as the proposed development
was regarded as a change or extension to
executed development, by failing to consider
whether the whole development on the site, as
changed or extended, would have likely
significant environmental effects;
ii. by failing to address the potential effect of
the proposed development in cumulation with
other development;
iii. in concluding that an environmental
statement was not required due to the overall
benefits of the proposals, by failing to take into
account the full extent of the development and
the potential adverse effects thereof;
iv. by failing to take any or adequate account
of the selection criteria as set out in Schedule 3 to
the EIA Regulations (and Annex III to the EIA
Directive), including the potential for pollution
and the environmental sensitivity of the SAC as
an area designated pursuant to Member States’
legislation;
v. in concluding that an environmental
statement was not required, by taking into
account mitigation measures without properly
examining their effectiveness or whether
significant environment effects would arise from
their implementation;
vi. by failing to base its decision on sufficient
information or inquiry about whether the
proposals would be likely to have significant
environmental effects, including:
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