Sands' (Colum) Application v Newry and Mourne District Council
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 12 October 2018 |
| Neutral Citation | [2018] NIQB 80 |
| Date | 12 October 2018 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2018] NIQB 80
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC10758
Delivered: 12/10/18
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY COLUM SANDS
FOR JUDICIAL REVIEW
-V-
NEWRY AND MOURNE DISTRICT COUNCIL
________
INDEX
Glossary
Paragraph Nos
Introduction: [1] – [2]
Brief Chronology: [3]
The Impugned Decision: [4] – [7]
The Applicant’s challenge: [8]
The EIA Regulations Ground: [9] – [41]
The First Habitats Regulations Ground: [42] – [53]
The Second Habitats Regulations Ground: [54] – [59]
Section 6(4) of the Planning Act (NI) 2011: [60] – [81]
The Other Statutory Requirements Ground: [82] – [89]
Misinterpretation of Planning Policies: [90] – [108]
2
The Reasons Challenge: [109] – [121]
The Irrationality Challenge: [122] – [131]
Omnibus Conclusion: [132]
Costs: [133]
Appendix: Detailed chronology
Glossary
AONB: Area of Outstanding Natural Beauty
ASSI: Area of Special Scientific Interest
BNMAP: Banbridge, Newry and Mourne Area Plan
CEMP: Construction Environmental Management Plan
CPO: Chief Planning Officer
DAERA: Department of Agriculture, Environment and Rural Affairs
DoE: Department of the Environment
DRD: Department for Regional Development
EcIA: Economic Impact Assessment
EIA: Environmental Impact Assessment
EPS: European Protected Species
ES: Environmental Statement
HBU: Historic Buildings Unit
HED: Historic Environment Division
HMU: Historic Monuments Unit
HRA: Habitats Regulations assessment
LDP: Local Development Plan
LLPA: Local Landscape Policy Area
LRM: Land and Resource Management Unit
MAG: Ministerial Advisory Group for Architecture and the Built
Environment
MRL: Milligan Reside Larkin architects
NIEA: Northern Ireland Environment Agency
NM&DDC: Newry, Mourne and Down District Council
PAD: Pre-Application Discussions
PC: Planning Committee of the Council
PPO: Principal Planning Officer
PPS: Planning Policy Statement
SAC: Special Area of Conservation
SCA: Special Countryside Area
SOD: Scheme of Delegation
SPA: Special Protection Area
SPPS: Strategic Planning Policy Statement
3
(The terms “Case Officer” and “Principal Planning Officer” [PPO] are employed
interchangeably throughout this judgment.)
MCCLOSKEY J
Introduction
[1] There are three protagonists in this judicial review challenge. The first is
Colum Sands of 50 Shore Road, Rostrevor, County Down, being his place of
residence which is located in proximity to the site of a contentious proposed
development at 68 – 72 and 74 Shore Road (“the site”). The second protagonist is
Newry, Mourne and Down District Council (“the Council”) which made the decision
authorising the contentious development. Thirdly, there is the developer, JC
Campbell, Mr Sands’ immediate neighbour and owner/operator of the existing
business on the site, who has participated in these proceedings, making a material
contribution through his solicitor and counsel.
[2] The site, of 1.051 hectares, is located within the Mourne Slieve Croob Area of
Outstanding Natural Beauty (“AONB”). Further, it is adjacent to or borders a series
of other sites which have specially conferred designations: a protected park with
lodge and demesne of special historical interest, an “ASSI” wood, a designated
“Protected Route” (the A2 carriageway), a designated Special Countryside Area
(“SCA”), a designated Local Landscape Policy Area (“LLPA”) and along the entirety,
and within metres, of its southern boundary the Carlingford Lough Area of Special
Scientific Interest/Special Area of Conservation (“ASSI”/”SAC”). The existing, well
established uses of the site are a car showroom, extensive parking hardstanding; a
substantial vehicle repair operation, a vehicle refuelling facility; a car wash
installation and the developer’s dwelling. The site is co-called “white” land, having
no specific development designation. Opposite the site and bordering the lough lies
a fuel depot.
Chronology
[3] The developer’s interest in developing the site dates from 2008. Since then he
and his agents have interacted with successive planning authorities, submitting a
total of three planning applications. At this juncture it is convenient to interpose an
agreed chronology, which is an abbreviated version of its detailed (and agreed)
counterpart in the Appendix to this judgment. I have confined what follows to what
I consider to be the salient dates and events in what is a rather protracted history.
(a) 26.10.09 Developer submits planning application to DoE.
(b) 29.10.09 EIA screening determination by DoE.
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...and Others (1981) 43 P.&C.R. 375. 346 Re HM's Application [2007] NICA 2 at [52]–[55]. 347 Sands v Newry and Mourne District Council [2018] NIQB 80. 348 In Inverclyde District Council v Lord Advocate and others (1981) 43 P. & CR 349 Dietacaron Ltd v An Bord Pleanála and Everglade Properties ......
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