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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> River Faughan Anglers Ltd v Derry City and Strabane District Council  NIQB 87 (23 October 2018)
Cite as:  NIQB 87
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Neutral Citation No:  NIQB 87
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
AoHSV: Area of High Scenic Value
ASSI: Area of Special Scientific Interest
BCT: Bat Conservation Trust
BS: British Standard
CEMP: Construction Environmental Management Plan
CJEU: Court of Justice of the European Union
CLUD: Certificate of Lawfulness of Use or Development
DAERA: Department of Agriculture, Environment and Rural Affairs
DAP: Derry Area Plan 2011
DC&SDC: Derry City & Strabane District Council
DOE: Department of the Environment
DRD: Department for Regional Development
EIA: Environmental Impact Assessment
EPS: European Protected Species
HRA: Habitats Regulations Assessment
NIEA: Northern Ireland Environment Agency
PC: Planning Committee
PPS: Planning Policy Statement
PAP: Pre-application Protocol (correspondence)
RFA: River Faughan Anglers Ltd.
RM: Reserved Matters
RPA: Root Protection Area
SAC: Special Area of Conservation
SES: Shared Environmental Services
WMU: (NIEA) Water Management Unit
Topic Paragraph Number/s
? Introduction  – 
? Leave decision  – 
? The Grounds Reformulated 
? The Developer 
? Factual Matrix  – 
? Burden and standard of proof  - 
? Planning History 
? Ground 1: Implementation of the 2009 Approvals  – 
? Ground 2: The first Habitats Regulations Challenge  – 
? Ground 3: The Second Habitats Regulations Challenge  – 
? Ground 4: the Habitats Regulations Protected Species
Challenge  - 
? Ground 6: Breach of Regulation 4(1) of the EIA Regulations  – 
? Ground 7: Contravention of the Derry Area Plan  – 
? Misinterpretation of planning policy  – 
? Omnibus Conclusion  – 
? Costs 
Appendix pages  – 
The challenge and the grant of leave
"Construction of manager's dwelling and six No. cottage style apartments in two No. blocks with associated landscape works to provide tourism based 'fishing end use' on the site under PPS16 …. [at a location described as] … lands opposite 53 Lismacarrol Road/Glenshane Road, Crossballycormick, Londonderry
The Grounds Reformulated
(i) Taking into account immaterial considerations, namely two previous grants of planning permission said to have lapsed.
(ii) In the alternative to (i), breach of Regulations 45, 46, 50 and 51 of the Habitats Regulations by failing to undertake a review of the previous planning permissions.
(iii) Breach of Regulations 6(3) and 43(1) of the Habitats Regulations by failing to carry out any (or any adequate) habitats assessment.
(iv) Breach of Regulations 3(4) of the Habitats Regulations by failing to consider the impact of the proposed development on a protected species, namely bats.
(v) Breach of Regulation 4(1) of the EIA Regulations by failing to require the provision of an "Environmental Statement" ("ES").
(vi) Infringement of sundry policies enshrined in the Derry Area Plan.
Following an inter-partes hearing, leave to apply for judicial review on the above grounds was granted.
(a) The "as constructed" foundations are "substantially constructed within the red line boundary of the sites".
(b) The "as constructed"" foundations are "constructed in accordance with the topographical survey of the lands taken before the first applications".
At the substantive hearing stage, Mrs Deery made further both oral and written contributions.
(i) That the hand-written note of Mr Ciaran Rodgers, as exhibited by the Respondent in Trial Bundle 2, [CR1, pages 29 – 30], was not prepared "…in advance…" of the Planning Committee ("PC") meeting (refer to paragraph 5 of Applicant's third affidavit affirmed on 28 August 2018). Not agreed although it is accepted that CR made additional annotations to the document during the PC meeting.
(ii) That the "…position of the foundations as constructed edged red…" [PAP3, page 393] of the holiday chalets and manager's dwelling, as shown on the Respondent's drawing [PAP3, DCSDC A, 403e], do not accurately reflect the shape, scale or dimensions of the actual foundations as laid out and existing on the ground (refer to paragraph 10 of Applicant's third affidavit). Not agreed.
(iii) That there is common ground between the Applicant's findings (as expressed in paragraph 29 of my first affidavit affirmed on 16 April 2018) and the Respondent's findings as depicted on its drawing exhibited at Trial Bundle 1a, [PAP3, DCSDC A, page 403e]. Namely, that the north-western edge of the foundations for the holiday chalets, as constructed on the ground (red), is located ten (10) metres from the north-western edge of the holiday chalets as approved under A/2007/0895/RM (blue). Not agreed.
(iv) That the confirmation provided by the Respondent to the planning applicant that material starts had lawfully commenced on the holiday chalets and manager's dwelling was informally given outside of the legislative provisions of section 169(1)(b) of the Planning Act (Northern Ireland) 2011 [DB1 Tab27, page 213] (refer to paragraph 14 of Applicant's third Affidavit). Not agreed.
(v) That the Certificate of Lawfulness of Existing Use or Development exhibited by the Respondent in Trail Bundle 2 [CR1, pages 161 – 165] does not relate to this case and has no bearing on these proceedings. Agreed.
(vi) That planning condition 6 of A/2007/0895/RM requiring the implementation of the access prior to all other works and development (identical to condition 4 of A/2007/0897/RM) has never been complied with (refer to paragraph 17 of Applicant's third Affidavit). Not agreed.
(vii) That the photograph exhibited by the Respondent at Trial Bundle 2 [CR1, page 19] is the existing agricultural field access and not the location of the access granted under the historic reserved matters permissions, which was approved (but never constructed) some 32m to the north west of the centre line of this existing field access (refer to paragraph 17 of Applicant's third Affidavit). Not agreed.
(viii) That the Respondent's (repeated) statement to the PC that the impugned permission "…seeks to build the holiday chalets largely over the footprint of the approved chalets…" [DB1 Tab5, page 106] is factually incorrect (refer to paragraph 19-24 of Applicant's third Affidavit). Not agreed.
(ix) That the Respondent failed to inform the PC of the matter raised by the Applicant since 26 July 2016 regarding the review of extant permissions as it relates to the impugned permission [DB1 Tab5, page 101] and [DB1 Tab29, pages 224 – 226] (refer to paragraph 8 of Applicant's third Affidavit). This does not relate to the impugned decision.
(x) That the access road approved under the historic reserved matters permissions to serve the holiday chalets and manager's dwelling, and its associated subterranean drainage infrastructure, has not been constructed [CR1 pages 64 and 79-80] (refer to paragraph 37 - 39 of Applicant's third Affidavit). Not agreed.
(xi) On 6th. October, 2014 planning application A/2014/0495/F was submitted by Catherine Deery. This application was described as the Construction of managers dwelling and 6 no cottage style apartments in 2 no blocks with associated landscape works to provide tourism based fishing end use on the site.
...xii) The application related to lands at Lismacarrol Road/Glenshane Road, Crossballycormick, Londonderry.
...xiii) These lands are adjacent to the River Faughan which has ASSI/SAC designation.
...xiv) There were two previous applications on the site – A/2007/0895/RM which related to 6 no. self-catering tourism chalets for fishermen and was approved on the 2nd March, 2009 and A/2007/0897/RM which related to a manager's dwelling and was approved on the 11th March, 2009.
(xv) In or about February 2011 works were undertaken at the site in relation to the permissions A/2007/0895/RM and A/2007/0897/RM. It is agreed that these works would constitute a material start if carried out in accordance with the permissions but the extent to which the works are in compliance with the permissions is in dispute.
...xvi) In the course of processing application A/2014/0495/F two habitats risk assessments were carried out in respect of the application – on the 25th. May 2016 and on the 26th. June 2017. These were carried out by Shared Environmental Services who provide support to Councils in Northern Ireland in their role as competent authority under the Habitat's Regulations.
(xvii) A/2014/0495/F was ultimately dealt with at the planning committee of Derry City and Strabane District Council ("DCSDC") on the 10th. January, 2018.
...xviii) At the Planning Committee on the 10th. January, 2018 the committee heard from a planning officer of the council as well as the Planning Applicant's Agent and the Judicial Review Applicant as a representative of River Faughan Anglers Limited.
(xvix) The relevant area plan for the purposes of the application is the Derry Area Plan of 2011.
(xx) The decision Notice in respect of the application issued on the 17th. January, 2018.
Burden and standard of proof
"Insofar as there is a conflict between [the accounts] of what happened … this Court, only having the affidavits before it, cannot resolve that dispute. The position is well established that as the [claimants] have the onus of proof placed upon them to establish their case, in those circumstances the proper course to adopt is to act on the evidence given on behalf of the [Defendants] … insofar as it is impossible from the internal evidence to come to any conclusion as to which account is the more credible."
At the highest level one finds the following statement:
"As judicial review …. is a civil proceeding, it would appear to be right … to apply the civil standard of proof."
Per Lord Scarman in R v Secretary of State for the Home Department, ex parte Khawaja  AC 74, at 112E. This principle had earlier been formulated in similar terms by the Court of Appeal in R v Board of Visitors of Hull Prison, ex parte St Germain  1 WLR 1401. In the Northern Ireland context this has featured in decisions such as Re SOS Application  NIJB 252, Re Peart  NIQB 34 at  and Re Nagra  NICA 36 at .
(i) Approvals for the development for six self – catering anglers' chalets and a related manager's dwelling were issued on 15 December 1998.
(ii) Ditto, in substantially the same terms, on 02 October 2004
(iii) As per (ii), on 02 March 2009 and 11 March 2009 respectively, to be commenced (by specific condition) within two years.
Ground 1: Implementation of the 2009 planning permissions
"(2) For the purposes of sections 61 and 62, development shall be taken to be begun on the earliest date on which any of the following operations comprised in the development begins to be carried out—
(a) where the development consists of or includes the erection of a building, any work of construction in the course of the erection of the building;
(b) where the development consists of or includes alterations to a building, any work involved in the alterations;
(c) where the development consists of or includes a change of use of any building or other land, that change of use;
(d) where the development consists of or includes mining operations, any of those operations."
The focus in the present case is on subsection (2)(a), ie "any work of construction in the course of the erection of the building …."
"As I understand the effect of the authorities …. it is only necessary to ask the single question: are the operations ……….. permitted by the planning permission read together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission, they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful."
The Applicant formulated the argument that if and insofar as works were purportedly undertaken pursuant to the 2007 planning permissions they were unlawful as they were not exactly and strictly in accordance with what was permitted. As its formulation makes clear, this argument is alternative in nature, a fall back contingent upon the Court ruling (as it has) that the first ground of challenge is without merit.
"After viewing the Building Control file I took measurements from the approved plan layout and compared these against the foundations on the ground. This showed that the foundations were not completely in the correct positions as per [the 2007 approvals]. However the foundations on site overlapped the approved positions for both the manager's dwelling and the fisherman's cottages. I therefore concluded that sufficient works had been carried out on site for the purpose of implementing the approvals and a material start had been made…….."
I have considered with care these averments and the relevant surrounding evidence, mainly visual (photographs, maps and drawings). I take into account also that there was no application to cross examine the case officer. Having done so, I am satisfied about the correctness and accuracy of his averments. Furthermore, it is clear from all the evidence that the laying of foundations could not have been undertaken in the absence of a vehicular access from the main road to the site and there is sufficient evidence for the court to be satisfied that an access of this kind was installed. The Court bears in mind that in the real world something quite rough and rudimentary would have sufficed for this purpose.
"The vehicular access, including visibility splays and any forward sight line, shall be provided in accordance with the approved plans prior to the commencement or occupation of any works or other development hereby permitted. ….
Reason: to ensure that there is a satisfactory means of access in the interests of road safety and the convenience of road users."
The Applicant seeks to characterise this as a condition precedent and contends that there was a failure to comply with same.
"Going back to first principles, the starting point should be the proposition that there is no scope for implied conditions in a planning permission. If a local planning authority wishes to impose any obligation upon an applicant by way of a requirement or prohibition, it should do so in express terms, because failure to comply with the condition may, ultimately, lead to prosecution for failure to comply with a breach of condition notice and/or an enforcement notice; see sections 179 and 187(A) of the 1990 Act. The need for a local planning authority to spell out any requirement or prohibition in clear terms applies with particular force where the condition is said to prevent not merely some detail of the development, but the commencement of any development pursuant to the planning permission."
The status of "condition precedent" is acquired only if the condition "… goes to the heart of the planning permission ….": . Repeated exhortations of caution against the over-rigid or over-literal application of the Whitley principle has emerged as one of the major themes of post-Whitley cases.
"Complicated site history …. foundations in but Roads Service stated vis [visibility] splays were not in therefore permission expired."
In a letter dated 21 August 2014 to the developer, DOE expressed its view that planning permission A/2007/0897 had expired. The correspondent added a major caveat, however:
"It should be noted that this represents an informal opinion and a definitive decision can only be taken through the regulatory planning determination process. While reasonable care is taken to ensure its accuracy, it does not constitute a formal determination by the Department and is given without prejudice to such a determination."
In the event, no "formal determination" materialised. It is common case that compliance with this condition has now been effected.
"The vehicular access, including visibility splays and any forward sight line, shall be provided in accordance with the approved plans, prior to the commencement, operation or any works or other development hereby permitted."
Condition No 4 of the second planning approval, dated 11 March 2009, employs the terminology ".. prior to the commencement or occupation or any works or other development hereby permitted". Contrary to the Applicant's assertion the two conditions are not identically worded. Furthermore, both the wording and the punctuation – or lack thereof – are quite unsatisfactory, giving rise to obscurity and ambiguity. They suffer from a significant lack of coherence. This consideration alone divests both conditions of the clarity necessary to be classified conditions precedent. This conclusion is readily made.
Ground 2: The first Habitats Regulations Challenge
"In the alternative to (i), breach of Regulations 45, 46, 50 and 51 of the Habitats Regulations by failing to undertake a review of the previous planning permissions."
The Applicant's more detailed submissions under this ground are at  –  of the Appendix.
 I consider that, properly analysed, this ground entails a challenge to the 2009 approvals. The Applicant's contention, in both substance and logic, is that these approvals are vitiated by the infringement of the Habitats Regulations which he asserts. The unmistakable fallacy which arises is that permission to challenge the 2009 approvals has not been granted. These proceedings concern exclusively a challenge to the planning approval made by the Council on 17 January 2018 in relation to a new planning application in respect of the same site. Leave to apply for judicial review has been granted within these constraints.
Ground 3: The Second Habitats Regulations Challenge
"It is clear from the revised Appropriate Assessment conducted on 26 June 2017 … that this is not, in fact, a proper Stage 2 Appropriate Assessment. Rather, it is little more than a summary of the Stage 2 Assessment and reiterates the mitigation measures taken into account during this initial screening process ….
It is also based on the false premise that the development approved under A/2007/0895/RM …. and the impugned permission are mutually exclusive, thus erroneously ruling out any in combination effects ….
It is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on a European site. Essentially this is what the 26 June 2017 HRA has done."
"43.—(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—
(a)is likely to have a significant effect on a European site in Northern Ireland (either alone or in combination with other plans or projects), and
(b)is not directly connected with or necessary to the management of the site,
shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives."
Regulation 43 and its related jurisprudence were considered by this Court in its recent judgment in Re Sands Application, at  – , which I incorporate by reference without (in the interests of economy) reproducing.
"The proposed development is adjacent to the River Faughan and Tributaries SAC – any works within the area proposed has [sic] the potential to have a significant adverse effect on the site integrity of this site and is [sic] contrary to the conservation objectives for the featured species of Salmon and Otter …
Based on the information provided to date, and based on the proposed development in its current state, the proposal is likely to have a significant adverse effect on site integrity which cannot be adequately mitigated for [sic] and therefore is not HRA compliant and it will therefore be necessary to recommend refusal to the Council."
Thereafter the Council continued to interact with SES, while the Northern Ireland Environmental Agency ("NIEA") was another agency involved in this process, as explained in the affidavit of Ms Allen of SES.
"This HRA will progress to Stage 2 – Appropriate Assessment to ensure conditions are imposed on the planning approval notice to prevent any adverse impacts on these site selection features."
No "uncertainties and any gaps in information" were identified. Three "measures to be introduced" were identified: a final CEMP, a "buffer to water course" and, finally, "works outside salmon spawning season". The report then proceeded to formulate these three measures as "detailed conditions" of any planning approval. The "Atlantic Salmon Spawning Season" was identified as 31 October to 31 March.
(i) A final CEMP, reflecting all of the mitigation and avoidance measures specified in the initial CEMP and containing supplementary information, must be provided to the Council prior to the commencement of any works on site and observed at all times, the expressed reason being "to protect the integrity of the River Faughan Special Area of Conservation".
(ii) There must be a suitable buffer of at least 10 metres between the location of the refuelling, storage of oil/fuel, concrete mixing and washing areas and the boundaries of the SAC, for the same expressed reason.
(iii) All "in river works and works adjacent to the river" must be carried out outside the Atlantic Salmon Spawning Season (31 October to 31 March), for the expressed reason "to protect the spawning salmon".
These measures/conditions are an exact replica of those proposed in the second HRA.
"None of the units approved shall be occupied until works for the disposal of sewage have been provided on the site to serve the development hereby permitted, in accordance with details to be submitted to and approved by the Department ….
Reason: in the interests of public health."
There is no suggestion of any lack of harmony between this condition and the final EIA determination which records inter alia that the proposed sewerage treatment mechanism will be constructed "as per NIEA and Environmental Health requirements".
Ground 4: the Habitats Regulations Protected Species challenge
"Without prejudice to the preceding provisions, every competent authority in the exercise of any of its functions shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions."
Bats are one of the protected species under Annex (iv)(a) of the Habitats Directive. The terminology is "European Protected Species" ("EPS").
"Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex (iv)(a) in their natural range, prohibiting:
(a) All forms of deliberate capture or killing of specimens of these species in the wild;
(b) Deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;
(c) Deliberate destruction or taking of eggs from the wild;
(d) Deterioration or destruction of breeding sites or resting places."
The domestic law provision which corresponds with Article 12(1) is regulation 34 of the Habitats Regulations. This, in terms, provides that each of the prohibited forms of conduct enshrined in Article 12(1) is a criminal offence. Regulation 34(1)(b), which corresponds with Article 12(1)(b), is the provision which the Applicant emphasises in particular.
"In brief compass, the combined effect of these two provisions was to oblige the Council to have regard to the specified requirement of the Directive requiring prohibition of deliberate disturbance of protected species, particularly during the periods of breeding, rearing, hibernation and migration."
The judgment in Sands reproduces at  extensive passages from one of the leading cases in this sphere, R (Morge) v Hampshire CC  1 WLR 268.
"The development, if permitted, would disturb the terraced slopes, cause disturbance to woodland habitat and threaten badger activity."
In a supplementary response dated 28 March 2003 EHS stated:
"EHS Natural Heritage still has concerns with the above application and its potential impact on protected and priority species …
EHS would require the applicant to submit a survey for the site and adjacent associated habitats for the following species: badger, otter, red squirrel, sand martin and bats."
Guidelines for the bat and badger surveys were provided.
"The mature trees and river offer excellent foraging opportunities for bats, all of which in Northern Ireland, including those species recorded, are insectivorous. With this in mind it is important when considering options for developing the site that all vegetation and especially mature trees on the river bank are preserved …
The proposed development site is of no significant value to wildlife including those species surveyed. The site is, however, adjacent to two important habitats: the mature woodland of holly plantation and the River Faughan. Care should be taken to ensure that these two habitats are not adversely affected by the development."
It is appropriate to reproduce in full the following passage relating specifically to bats:
"There are no standing buildings or tunnels on the site, the preferred choice for roosts and hibernacula of most species of bat found in Northern Ireland. Several mature trees in [the] holly plantation had cracks and hollows which could have been attractive to bats though it was not possible to prove occupancy during the present survey. All bat sightings were made on 23 June in the vicinity of the river with the exception of a single Leisler's Bat which passed north high above the site. The Northern Ireland Bat Group does not hold any specific bat records for the site."
"There shall be a 10 metre band of dense native planting along all boundaries (excluding that with the River Faughan), to consist of a native woodland mix …
Reason: to provide for loss of habitat, minimise potential disturbance and provide valuable corridors for movement and shelter of protected species and wildlife."
"NIEA …. has concerns with this proposal and considers that further information is required to comply with the Habitats Regulations and to fully assess the likely impacts on natural heritage interests."
Elaborating, the correspondent stated:
"The proposed development could potentially lead to altered habitat within the river channel, displacement of otters, pollution and altered hydro morphology relating to increased levels of erosion."
Potential adverse impact on both otters and badgers was noted. The consultee requested extensive further information via a lengthy list of questions.
"Having inspected the site and viewed the plans proposed, I was satisfied that there would be no loss of habitat suitable for bats in the form of hedgerows and trees."
The deponent elaborates on this with references to various dimensions and angles. He highlights that the development proposal entailed no removal of trees or hedging. He indicates that the proposed construction of buildings, pathways and car parking would be situated at a distance greater from the river than the construction authorised by the two 2009 approvals. The deponent observes, correctly, that this discrete topic was addressed by him in his report to the PC. He then deals with the access laneway authorised by the historic approvals and avers:
"As a result, I made a judgment on the basis of the information available to me and from the site inspections that there was no requirement for the Council to seek additional surveys relating to bats … as the layout of the [proposed development ….] does not negatively affect bats or the habitat they would use surrounding the site."
"In R (Lee Valley Regional Park Authority) v Epping Forest DC  EWCA Civ 404, the English Court of Appeal observed at  that the Habitats Directive is –
"… intended to be an aid to effective environmental decision making, not a legal obstacle course …
Judging whether an appropriate assessment is required in a particular case is the responsibility not of the court but of the local planning authority, subject to review by the court only on conventional Wednesbury grounds'."
Another principle which emerges from the corpus of decided cases is that a litigant who claims that there has been a failure to consider some particular risk has the onus of adducing credible evidence that there was a real, rather than a hypothetical, risk which should have been considered: R (Boggis) v Natural England  PTSR 725, at –. To like effect, Sullivan J stated in R (Hart DC) v Secretary of State  EWHC 1204 (Admin), at :
"Merely expressing doubt without providing reasonable objective evidence for doing so is not sufficient …"
I refer also to Smyth v Secretary of State for Communities and Local Government  EWCA Civ 174 at – and –, which is to similar effect and, further, reiterates with some emphasis the principle that the authority concerned – where it rationally chooses to do so (my emphasis) – is entitled to attribute substantial weight to the views of a presumptively expert consultee."
While the case officer's report, admittedly, lacked the attributes noted in  of Morge, the effect of my foregoing analysis and reasoning is that this was an immaterial defect.
Ground 6: Breach of Regulation 4(1) of the EIA Regulations
"The nearest form of any development to the river is an asphalt permeable walkway that stretches from the car park to the holiday cottages. This is located 31.5 metres from the river's edge. The built form of the holiday cottages is 45 metres away from the river bank. There is a SUDS attenuation tank and a storm drainage located 35 metres from the river. The construction of the cottages and the manager's dwelling means that all works could be managed through a construction method statement and as such would mean that all aspects of the build could be dealt with through the planning application …
In conclusion I have considered all the aspects of the proposal in front of me and concluded that it would be unlikely that the development will result in any significant environmental impacts."
"Having considered the nature, scale, timing, duration and location of the project, it is concluded that, provided the following mitigation is conditioned in any planning approval, the proposal will not have an adverse effect on site integrity of any European site."
Ground 7: failure to adequately consider the Derry Area Plan 2011
"Where, in making any determination under this Act, regard is to be had to the local development plan, the determination must be made in accordance with the plan unless material considerations indicate otherwise."
I have highlighted the three words "in accordance with" for reasons which will become clear. Section 45(1) provides, insofar as material:
"Subject to this Part and section 91(2), where an application is made for planning permission, the Council or, as the case may be, the Department, in dealing with the application, must have regard to the local development plan, so far as material to the application, and to any other material considerations …."
"However, in assessing the impugned decision against the development plan, only Policy ENV1, 'areas of high scenic value (Ao Hsv)' has been taken account of as a 'material consideration'. The Respondent has, therefore, failed to fulfil its statutory duty under sections 6(4) and 45 of the Act."
"This proposal has been assessed against the provisions of the Derry Area Plan 2011, as well as other material considerations including ……. [a series of identified free standing planning policies]."
In a later passage, entitled "Derry Area Plan 2011", it is stated:
"The site is located outside the development limits of Derry as defined in the development limits of Derry Area Plan 2011. The site is identified as being within an (Ao Hsv) and therefore Policy ENV1 of the DAP 2011 is a material consideration in this application …
Policy ENV1 states that proposals for development which would adversely affect or change either the quality or character of the landscape within the Ao Hsv will not normally be permitted. The proposal in its present form is to essentially replace the existing development approved and started on site. The proposal will not affect the existing established character and will have no significant visual impact given the limited views of the proposal as this location."
The Applicant's assertion that none of the other six policies in his group of seven was addressed in the case officer's report is correct.
"Although certain policies have not been specifically referenced in the report that does not mean that the issues raised thereby have not been considered."
In the individual sections which follow, the deponent makes the following case:
(a) As regards Policy ENV2, the relevant tests were addressed in his report in the context of his consideration of other specified policies enshrining the same policy tests, with a "compliant" conclusion.
(b) Policy ENV7, which enshrines a requirement that development proposals take into account existing trees and hedges and provide appropriate landscaping, is not infringed as no existing trees or hedges will be removed or damaged and the planning application materials included an acceptable landscape plan.
(c) Policy ENV8, which purports to prohibit development likely to introduce or increase water pollution to an unacceptable extent, was addressed in substance in the case officer's consideration of PPS2 in his report and, having regard particularly to the consultation responses of NIEA, SES and DFI Rivers, coupled with the acceptable CEMP provided, was not considered to be infringed.
(d) Policy ENV9, which in essence (in this instance) protects the landscape adjacent to the River Faughan and its tributaries, was addressed in the deponent's report in substance in the context of his consideration of other policies to substantially the same effect, giving rise to an assessment of compliance.
(e) Policies TU1 and TU2 enshrine tests which were addressed in the case officer's report in the context of his consideration of the related policy instruments PPS16 ("Tourism") and PPS21 ("Sustainable development in the countryside"), resulting in an assessment of compliance.
"21 First, the section 38(6) duty is a duty to make a decision (or "determination") by giving the development plan priority, but weighing all other material considerations in the balance to establish whether the decision should be made, as the statute presumes, in accordance with the plan (see Lord Clyde's speech in the City of Edinburgh Council case  1 WLR 1447 , 1458–1459. Secondly, therefore, the decision-maker must understand the relevant provisions of the plan, recognising that they may sometimes pull in different directions: see Lord Clyde's speech in the City of Edinburgh Council case, pp 1459D–F, the judgments of Lord Reed JSC and Lord Hope of Craighead DPSC in Tesco Stores Ltd v Dundee City Council (Asda Stores Ltd intervening)  PTSR 983 , respectively at paras 19 and 34, and the judgment of Sullivan J in R v Rochdale Metropolitan Borough Council, Ex p Milne (No 2) (2000) 81 P & CR 27 , paras 48–50. Thirdly, section 38(6) does not prescribe the way in which the decision-maker is to go about discharging the duty. It does not specify, for all cases, a two-stage exercise, in which, first, the decision-maker decides "whether the development plan should or should not be accorded its statutory priority", and secondly, "if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration": see Lord Clyde's speech in the City of Edinburgh Council case, at p 1459–1460. Fourthly, however, the duty can only be properly performed if the decision-maker, in the course of making the decision, establishes whether or not the proposal accords with the development plan as a whole: see R (Hampton Bishop Parish Council) v Herefordshire Council  1 WLR 2367 , para 28, per Richards LJ and Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government  JPL 171 , paras 27–36, per Patterson J. And fifthly, the duty under section 38(6) is not displaced or modified by government policy in the NPPF. Such policy does not have the force of statute. Nor does it have the same status in the statutory scheme as the development plan. Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, its relevance to a planning decision is as one of the other material considerations to be weighed in the balance: see the Hampton Bishop Parish Council case, para 30, per Richards LJ.
23. On the same theme Richards LJ said in the Hampton Bishop Parish Council case  1 WLR 2369:
'28. … It is up to the decision-maker how precisely to go about the task, but if he is to act within his powers and in particular to comply with the statutory duty to make the determination in accordance with the development plan unless material considerations indicate otherwise, he must as a general rule decide at some stage in the exercise whether the proposed development does or does not accord with the development plan …'
Richards LJ added, at para 33, that if the decision-maker does not do that he will not be in a position to give the development plan what Lord Clyde described in the City of Edinburgh Council case as its "statutory priority". He went on (in the same paragraph) to recall Lord Reed JSC's observation in the Tesco Stores Ltd case  PTSR 983 , para 22 that "it is necessary to understand the nature and extent of the departure from the plan … in order to consider on a proper basis whether such a departure is justified by other material consideration"."
I have also taken account of the decision in R (St James' Homes Limited) v Secretary of State for the Environment  JPL 1110, which held that this duty obliges the decision maker to consider the relevant development plan policies irrespective of whether they have been brought to its attention: unimpeachable common sense.
"It is for an applicant for leave to show in some fashion that the deciding body did not have regard to such changes in material considerations before issuing its decision. It cannot be said that the burden is imposed on the decider of proving that he did do so. There must be some evidence or a sufficient inference that he failed to do so before a case has been made out for leave to apply for judicial review. In the present case there was no such evidence and in our judgment nothing from which such an inference could be drawn. "
Stated succinctly, he who asserts must prove.
"I consider that any challenge based on section 6(4) involves the court in an audit of legality. I repeat: the question is not whether specified LDP policies were identified and taken into account. Rather, section 6(4) requires the court to address, and answer, the pure question of law of whether the impugned grant of planning permission is in accordance with the LDP. This is a classic "terminus" question, an objective and dispassionate exercise, to be contrasted with one of "process". Debates about what was – and what was not – considered by the decision maker, focusing as they do on the surrounding and underlying evidential matrix, seem to me remote from the clinical task of examining the impugned decision through the "in accordance with" statutory prism."
Misinterpretation of planning policy
"Planning approval will be granted for self-catering units of tourist accommodation in any of the following circumstances:
(a) One or more new units all located within the grounds of an existing or approved hotel, self-catering complex, guesthouse or holiday park …
In …… circumstance (a) …… above, self-catering development is required to be subsidiary in scale and ancillary to the primary tourism use of the site."
The relevant passage in the case officer's report to the PC states:
"PSM5 states that planning approval will be granted for self-catering units of tourist accommodation in a number of circumstances with the first criteria being that all units are located within the grounds of an existing or approved hotel, self-catering complex, guest house or holiday park. The proposal under consideration with this application is located within the site of a previous approval for a manager's dwelling … and six self-catering chalet style apartments …. both of which were implemented on site before the applications expired. Therefore, there is a live approval on site which the land owner could proceed to development at any point which satisfies the criteria set out in this policy."
Having elaborated on the other requirements of the policy, the case officer advised that the proposal was policy compliant.
"The Planning Committee Report states that there is a live approval on site which could proceed to development at any point. The Respondent is of the view that this is sufficient to bring the matter within the remit of TSM5. No exception or setting aside of policy is required …. there is an approved (and commenced) permission for a self-catering complex …"
The Applicant's attack on this assessment is elaborated in  –  of the Appendix, which I do not reproduce.
RESPONDENT'S RESPONSES ARE PROVIDED IN BOLD ANTIQUA FONT
IMMATERIAL CONSIDERATION / CONDITION PRECEDENT
The Legal Question
The issue relates to the legal question whether works on the site under the 2009 consent were lawfully commenced.
The provisions of section 63(2) of The Planning Act (NI) 2011 (hereafter "the 2011 Act") are relevant:
Provisions supplementary to sections 61 and 62
63—(1) The authority referred to in section 61(1)(b) or 62 is—
(a) the council in the case of planning permission granted by it;
(b) the Department, in the case of planning permission granted by it;
(c) in the case of planning permission granted under section 58, 60 or 145, the planning appeals commission;
(d) in the case of planning permission deemed to be granted under paragraph 3(1) of Schedule 8 to the Electricity (Northern Ireland) Order 1992 (NI 1) (consents under Articles 39 and 40 of that Order), the Department of Enterprise, Trade and Investment.
(2) For the purposes of sections 61 and 62, development shall be taken to be begun on the earliest date on which any of the following operations comprised in the development begins to be carried out—
(a) where the development consists of or includes the erection of a building, any work of construction in the course of the erection of the building;
(b) where the development consists of or includes alterations to a building, any work involved in the alterations;
(c) where the development consists of or includes a change of use of any building or other land, that change of use;
(d) where the development consists of or includes mining operations, any of those operations.
(3) For the purposes of section 62(2), a reserved matter shall be treated as finally approved when an application for approval is granted, or, where on an appeal under section 58, the planning appeals commission grants the approval, on the date of the determination of the appeal.
(4) Where a council grants planning permission the fact that any of the conditions of the permission are required by this Act to be imposed or are deemed by this Act to be imposed, shall not prevent the conditions being the subject of an appeal under section 58 against the decision of the council.
(5) Where a planning permission (whether outline or other) has conditions attached to it by or under section 61 or 62—
(a) development commenced and carried out after the date by which the conditions of the permission require it to be commenced shall be treated as not authorised by the permission; and
(b) an application for approval of a reserved matter, if it is made after the date by which the conditions require it to be made, shall be treated as not made in accordance with the terms of the permission.
Summary of the Respondent's position
In summary the Planning Committee Report ("PCR") records that "Both these applications were implemented in time and are therefore a material start on the site …" (TB1p98). The Applicant contends that this statement is inaccurate and misleading for various reasons. The Respondent maintains that a material start was made to works to implement the permissions in question before they expired and that the PCR was correctly informed that this was the case.
The matter is dealt with at length at paragraphs 14 – 21 of the first affidavit of Ciaran Rodgers ("CR"). In short the issue as to whether a material start was made to works to implement the planning permissions in question before they expired was fully investigated. Evidence was produced by the developer and considered, the building control files were checked and the extent to which the foundations were constructed in the footprint authorized by the planning permissions was explored. Once the proper factual context was established it was correct to conclude that sufficient works had been carried out for the purpose of implementing the approvals.
It is furthermore now clear from the material before the court that even before the foundations were constructed a material start was made when the permitted access was opened up to facilitate the construction of the foundations.
In his submissions (as perhaps is most evident in due course below) the Applicant persists in the fundamental error of suggesting to the Court that the works permitted under the 2009 consent are required to have been completed. That proposition is wholly misconceived. The Applicant misunderstands the statutory test.
The Applicant's repeated claims of common ground, based on his interpretation of select references, and as made throughout his submissions, are not accepted. This statement is not repeated hereafter in order to avoid unnecessary repetition but this should not be construed as acceptance of common ground in any particular respect.
The question of overlap is dealt with below.
"Strictly in accordance"
Whether works have been commenced or completed "strictly in accordance" is irrelevant. The Court should look to whether works have commenced by the carrying out of "any works".
The opening of the access
The assertion that the vehicular access has to be constructed in accordance with the plans is also wrong in Law for the reasons set out. Indeed as set out above, it is clear from the material before the court that even before the foundations were constructed a material start was made when the permitted access was opened up to facilitate the construction of the foundations.
The Court has already identified this as a fundamental issue. Even if the issue is that of sequenced works, the fact is that the access entrance was opened up to facilitate the construction of the foundations.
The Applicant asserted to the Court that the date upon which this occurred is unknown, but the Case Officer investigated matters and was advised that the access was opened to expressly to facilitate the construction of the foundations: see TB 1A, page 200 - email of Mrs Deery.
On that basis alone, the statutory test is made out because the agricultural field was changed to create an access to facilitate the development.
Consideration of the Ortho photos before the Court further confirms the correct factual position.
The Ortho photo of 31 August 2010 shows no access other than the field access (TB2 page 167).
The Ortho photo V4 of 8th June 2013 clearly shows an access running straight to the road (TB2, page 169).
See CR 2nd Affidavit para 25 (TB 2 R, page xxxvii)
It is irrelevant that the access works were not completed.
Relatedly, the actual planning conditions of both 2009 consents do not require the visibility splays until "occupation".
Contrary to the assertion of the Applicant, there are different conditions for the two 2009 consents: that for the manager's house and the chalets.
The manager's dwelling permission (TB1, pages 163-166) expressly requires the access to be constructed before commencement or occupation (Condition 4, page 164). "Occupation" is a well understood term of planning. It refers to occupation of the completed development.
The chalets permission (TB 1, page 148-153) has two interlinked conditions (page 149); condition 6 and 7. Condition 7 expressly does not require the visibility splays to be constructed until occupation.
The Department's Position
The letters from the Department relied upon expressly represent an "informal opinion" not a "definitive decision": see TB1, page 178 setting out the DoE position. The Respondent's position as now advanced before the Court is based on a complete factual picture ascertained from more complete information (see in particular the second affidavit of Ciaran Rodgers – "CR2", Affidavit page xxxvi para 22 to 25).
TRIAL BUNDLE 1a: [DB1 Tab20, page 191] – Respondent's enforcement report 26 January 2017.
"Measurements taken from these ortho photographs clearly show that…the foundations for the tourist chalets are not within the red outline…". I consider this refers to the red line of the planning permission, and agree with this finding as is confirmed by the survey conducted on behalf of the Applicant and exhibited at [DB1 Tab24, page 208]. If constructed outside the red line denoting the application, then it stands to reason that there will be no overlap of the as built and approved foundations.
The planning applicant also considers that the construction of these foundations has, in the opinion of the survey exhibited by Ms Deery, taken place outside of the red line of the application to the north-west of A/2007/0895/RM (albeit to a lesser extent). I draw attention to the caveat in that survey at [PAP9, page 486], which states:
"it must be noted that online digital imagery is not overlay accurate and depending on the position and orientation of the satellite at the time of the picture taken may distort the actual layout slightly, with poor resolution."
TRIAL BUNDLE 1a: [PAP9, page 484 and 485] – MAY NEED TO HAND OUT COLOUR IMAGE?
TRIAL BUNDLE 1a: [PAP3, page 403e] - Respondent's drawing.
It is irrelevant that the foundations were commenced or placed incorrectly, save that this is a clear commencement of the works, and constitutes "any works" for the purpose of the statutory standard required. In any event as set out above the access was opened and works commenced consistent with the statutory requirement.
The most (and indeed only) accurate plans before the Court illustrating the respective positions of the previous permissions, the impugned permission and the foundations as built are those prepared by Mr Mullan and those exhibited to the second affidavit of Mr Rodgers. This is addressed in further detail below.
TRIAL BUNDLE 1a: [PAP8, page 471] – Satellite images
"…there is a material overlap between the founds as constructed and the approved drawings" and that "the overlap is sufficient that it [sic] Council officers are of the view that it constituted a material start." [PAP3, page 393].
It is the juxtaposition between the Respondent's red and blue lines on which it relies to demonstrate the material overlaps which it contends are sufficient to confirm the lawful commencement of development.
It is immediately apparent that the shape, scale and dimensions of the foundations depicted by the Respondent (in red) bear no resemblance to what has either been approved (in blue), or constructed (in the wrong position) on the ground.
For example, at its widest point the Holiday chalets in blue measure seven (7) metres. Being generous, we could add an extra half (0.5) metre either side to bring that up to eight (8) metres of a footprint. Yet Mr Rodgers is telling this Court that, according to him, the foundations constructed on site (marked red) always showed a building width of ten (10) metres. Of course, Mr Rodgers is wrong.
"After viewing the Building Control files I took measurements from the approved plan layout and compared these against the foundations on the ground. This showed that the foundations were not completely in the correct positions as per approvals A/2007/0895/RM and A/2007/0897/RM. However, the foundations on site overlapped the approved positions for both the managers dwelling and the Fisherman's Cottages. I therefore considered that sufficient works had been carried out for the purpose of implementing the approvals and a material start had been made…"
(i) Mr Rodgers admits that "I did not retain a record of the measurements that I took at the time".
(ii) Mr Rodgers does not address the Respondent's previous position that the holiday chalets are constructed outwith the red line of the planning permission A/2007/0895/RM as previously confirmed by the measurements it took on 26 January 2017 and recorded on its enforcement file [DB1 Tab20, page 191].
(iii) Nor does Mr Rodgers explain the contradiction between that enforcement report (including the satellite images held on the Respondent's enforcement file) which contradict his claim "…it is clear that there is construction inside the red line of the planning permission [A/2007/0895/RM] granted in 2009." [PAP3, page 393].
(iv) Bizarrely, not having kept records which confirmed, in his opinion, the material overlap which Mr Rodgers claims informed the PC report, he returned to the site, post-consent, and again measured foundations layouts that do not exist on the ground.
All of the Applicant's submissions with respect to the true position on the ground are based on his own mistaken interpretation of various maps, plans and images and an erroneous and misleading report from Robert Thompson, whose son is a director of the Applicant company. The Respondent's evidence is clear and reliable.
The Respondent's evidence
The Respondent's witness has averred that he did not retain records. It was entirely proper for Mr Rodgers to confirm the measurements that informed his assessment by redoing the exercise which he had previously undertaken.
The issue of the enforcement file and the available material is set out in the second affidavit of Ciaran Rodgers (TB R2, page xxxvi, paras 22 to 25). CR did not gain access to the ortho technology until after the transfer of powers to the Councils in April 2015, and therefore none of that material was available to him previously.
The significance and accuracy of Ortho photos is addressed by Mr Rodgers in CR2. These photographs are the source and cornerstone of the Respondent's evidence. Consideration of them clearly confirms the Respondent's illustration of the contours and location of the foundations as constructed and contradicts the Applicant's submissions. (CR 2 TB 2 page 187 and page 403e in TB 1 – MAP 1).
The Respondent did mark the construction of the foundations relevant to the chalets and it is plainly commenced and at least partially within the red line (CR 2, TB2 R page 187).
The Respondent's evidence also clearly demonstrates a start to construction within the red line of the manager's house, consistent with the statutory requirement.
Setting aside for the moment the issue of access (dealt with above) whether the foundations are within the red line as the JR Applicant focuses upon is irrelevant to the statutory test – see Map 3, page 403e.
The matter is amplified as requested by the Court in the second affidavit of Ciaran Rodgers (TB 2 R, xxxiv, paras 13 to 21).
The evidence of Mr Thompson for the Applicant
Mr Thompson's evidence is not agreed. It is demonstrably flawed and unreliable.
His drawing suffers from two fundamental errors:-
(1) the contours are plainly demonstrably wrong. There is no 39 metre contour near either the foundations laid or the permitted buildings at any location; and
(2) it assumes that the foundations laid were identical to the permitted 2009 consent. That is demonstrably wrong from the Orthophotos and the aerial photograph at Trial Bundle 1, page 270; see also CR 2 Exhibit at TB Resp 2 page 187.
Setting aside the access point, there is indisputably an overlap of the manager's house and the chalet development. The extent of the overlap, as a matter of Law, is irrelevant. The works have commenced and, as the statutory provision provides, any works are sufficient to satisfy the statutory test.
The Court will further note CR's 2nd affidavit, (TB R2, page xxxvi, para 20-21 and the contour map at TB 2 R, page 188).
The views of the JR Applicant's engineer are not correct in respect of Orthophotography: see the second affidavit of Ciaran Rodgers, paras 5-12.
The Court is concerned with the accuracy of the evidence presented and the legal consequences of that evidence. The Respondent's evidence is accurate in all material respects. The Applicant's is not.
Having regard to the true factual position the correct conclusion in law is that a material start was made, works were commenced and the 2009 permissions remained valid and capable of implementation. The Court has the full factual position before it. The evidence clearly demonstrates that the permissions have been implemented in time The Planning Committee was properly advised of the correct position in law and was not misled as alleged by the Applicant - "Both these applications were implemented in time and are therefore a material start on the site …" (TB1p98).
Finally, Morge relates to the issues for a Habitats Risk Assessment, and not the statutory test of commencement of works for the purposes of a planning permission. Nothing within it contradicts the Respondent's analysis.
Notwithstanding the above, the Respondent failed to address the law in respect of what is known as the "Whitley principle". This is set out in Whitley & Sons Ltd-v-Secretary of State for Wales, where Woolf LJ states:
"As I understand the effect of the authorities to which I am about to refer, it is only necessary to ask the single question; are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful."
The Respondent repeats what has been stated already. The works to open the access to facilitate laying of foundations was a start to works sufficient to comply with the statutory requirement at S63(2).
The works of laying foundations that are on or within the area of the development permitted by the 2009 consents are lawful.
As appears again, the applicant infers a requirement that works are exactly in compliance with the 2009 stamped approved drawings. That is wrong.
The case officer stated that works commenced.
Regardless of his rationale, this is now a matter of Law before the Court.
The Respondent says that works were lawfully commenced.
As the Court has observed, the issue is something of a red herring in the context of the statutory test. The Respondent repeats what has been stated already.
"The vehicular access, including visibility splays and any forward sight line, shall be provided in accordance with the approved plans, prior to the commencement or occupation of any works or other development hereby permitted.
Reason: To ensure there is a satisfactory means of access in the interests of road safety and the convenience of road users." [DB1 Tab12] [DB1 Tab13].
The Respondent emphasises the words "or occupation" (TB 1, page 164). That is a disjunctive issue and allows the visibility splays to be provided either prior to commencement or occupation.
The conditions relating to the chalet development in 2009 are different – they are not identical as asserted (TB 1, page 149). Condition 7 requires the splays to be in position and permanently retained at the time of occupation/operation.
Both conditions are consistent in their requirement and occupation is the key trigger.
The Respondent repeats what has been stated regarding the requirement of the conditions.
The Respondent repeats what has been stated already.
This is dealt with in the second affidavit of Ciaran Rodgers. In summary, the deponent did not have access to the sophisticated information technology that allowed accurate overlaying of sites with aerial photography, which was not available until after 2015. Significantly the Respondent's deponent did not have the imagery of 2010 and 2013 that demonstrated that the access had been opened up; that the access was opened on expressly to facilitate the laying of foundations; or that foundations had been laid; or that building control had expressly recorded the laying of those foundations: see the materials from Harpur Morrison of Building Control (TB R2, pages 32 to 61). It is expressly stated that the works are to units 2, 3 and 4 and the manager's house. The intention is indisputable, regardless of the position. There is express reference to the access road (TB R2, page 34).
Mr Morrison twice confirms erection of four dwellings (TB R2, pages 39 and 54)
As note at the outset the applicant misunderstands the legal significance of the difference between the commencement of works, and the completion of works.
TRIAL BUNDLE 2: [CR1, Page 19] – access photo
Enforcement was not an option for the DoE for the reasons set out above.
TRIAL BUNDLE 1a: [PAP8, page 471] (satellite image)
As set out above the Applicant is wrong.
The applicant expressly acknowledges the commencement of works.
TRIAL BUNDLE 1b: [DB3 Tab49, page 552] – Access photos
TRIAL BUNDLE 1a: [DB1 Tab12, page 162] (drawing showing access)
The JR applicant continues to misunderstand the significance of the commencement of works, and relatedly the requirement to provide the visibility splays permanently before occupation or operation. The Court is again asked to equate the statutory test with the completion of works, rather than the commencement.
The commencement of the access is a change of use of the land from an agricultural field.
This is irrelevant.
S.63(2) of the 2011 Act does not require a lawful development certificate. The statutory test is that works commenced.
REVIEW OF EXTANT PERMISSIONS
TRIAL BUNDLE 1a: [PAP3, DCSDC A, page 403e] – Respondent's drawing
"No development hereby permitted shall commence on site until the foundations within the area shaded blue on approved drawing 04 date stamped 6 October 2014 have been removed and confirmed in writing by the Council."
The reason for this condition was "To ensure no build up of development on the site." [DB1 Tab5, page 106].
The Respondents has not waived any responsibility or obligation on it.
As set out in its pre-action protocol response (TB1p393-394) there was no review of the commenced permissions by the Respondent following the transfer of planning functions to it as it was not at that stage aware that the permissions had been substantially commenced but not completed. This only came to light in the context of the processing of the impugned application.
No HRA was carried out on the commenced permissions during the processing of the impugned application because that application was intended to supersede the commenced permissions.
Nevertheless as averred by Mr Rodgers (CR at paragraph 21):
"21. Should, however, the applicant proceed instead with applications A/2007/0895/RM and A/2007/0897/RM then the Council would be obliged to complete an HRA in respect of these applications. From the information available to me to date that there would not be any basis for the Council to issue a Notice of Discontinuance in respect of these earlier applications."
Far from waiving the Regulations, the Respondent expressly avers that it will apply the regulations and require an HRA before the commenced applications proceed. It is perfectly proper for the Respondent to inform the Court that there is no information available to date to issue a Notice of Discontinuance of any works.
Mr Rodgers has acknowledged (in his second affidavit) that the term "largely" is not appropriate. That said, the Court is concerned with the legality of the decision, and the critical issue with respect to implementation of the previous permissions is whether the works were lawfully commenced, and whether the Planning Committee was led into error. The proper factual position is before the Court as set out at length above and it supports the Respondent's position and confirms that the Planning Committee was not materially misled in any respect.
All this in any event simply distracts from the real question in respect of this ground which is whether there was any error of law in the failure to carry out a HRA on the 2009 permissions.
The Respondent's answer is straightforward. There is no need to date to carry out a HRA on the 2009 permissions because it would simply duplicate the work grounding the HRA of the impugned application unnecessarily in circumstances in which the developer intends to develop the new permission not the 2009 permissions. If however the developer should seek to develop the 2009 permissions instead a HRA will be carried out.
Both permissions will not be implemented. The Respondent has not and will not relax conditions. There was no need to consider in combination effects arising out of the development of both permissions.
There are three planning permissions under consideration. Two are 2009 consents (not one as the Applicant has inferred) - one for the manager's house and one for the six chalets. The third consent (the impugned consent) is both for a manager's house and six chalets.
There is no permission that permits more than six chalets on the planning unit.
The "build up" the Applicant refers to, in essence the concurrent development of the 2009 permissions and the impugned permission, is nothing more than a spectre created by the Applicant to suit his argument.
The conditions of the impugned permission requires the development to be carried out in accordance with the approved specified plans: condition 11, TB 1A, page 144.
A new planning chapter has been opened, and if the planning applicant seeks to revert to the 2009 consents, a fresh HRA would be required.
There was no error of Law.
NO PROPER HABITATS REGULATION ASSESSMENT
Although a strict precautionary approach is to be applied to HRA the standard of review is the Wednesbury standard. The relevant competent authority "is entitled to place considerable weight on the opinion of Natural England, as the expert national agency with responsibility for oversight of nature conservation, and ought to do so (absent good reason why not)".
Overall, the Habitats Directive is "intended to be an aid to effective environmental decision making, not a legal obstacle course". Furthermore "Judging whether an appropriate assessment is required in a particular case is the responsibility not of the court but of the local planning authority, subject to review by the court only on conventional Wednesbury grounds"
An applicant claiming that a risk has not been considered which ought to have been bears an onus to produce credible evidence that there was a real, rather than a hypothetical, risk which should have been considered. Even if some flaw is found in the process overall the Court is entitled to form the view that quashing the decision on that ground would be pointless.
Sweetman is authority for the proposition that there cannot be a negative screening assessment where the developer proposes mitigation or where mitigation is required. Once that threshold is crossed, then an HRA is required.
Sweetman is not an authority for setting aside how this Member State determines how to assess the responsibilities of competent authorities.
"Article 6(3) of the Habitats Directive establishes an assessment procedure intended to ensure, by means of prior examination, that a plan or project not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site" (page 5 of 5, 2nd para).
This, I would contend, must include the removal of all reasonable scientific doubt as to the effects of sewage effluent disposal – an integral element of the project – if the provisions of Article 6(3) of the Directive and Regulation 43(5) of the Habitats Regulations are not to be violated.
TRIAL BUNDLE 1a: [DB2 Tab46, page 451] – NIEA WMU
At page 453
WMU went on to alert the Respondent that: "Mitigation measures to address water quality concerns have not been covered at this stage."
At page 455
WMU subsequently confirm on 16 April 2018, post-approval, that "an application for consent to discharge under the Water (NI) Order 1999 has not been received for this site, to date. A detailed assessment of the means of sewage disposal at this site has therefore not been undertaken."
TRIAL BUNDLE 1b: Refer to Book of Policy, PPS21 (at rear)
"Planning permission will only be granted for development relying on non-mains sewerage, where the applicant can demonstrate that this will not create or add to a pollution problem.
Applicants will be required to submit sufficient information on the means of sewerage to allow a proper assessment of such proposals to be made.
In those areas identified as having a pollution risk development relying on non-mains sewerage will only be permitted in exceptional circumstances."
The final and operative HRA carried out is addressed in detail in the affidavit of Susanna Allen (see also CR paras 25 – 26 and 34 - 38). This was the second HRA carried out, the application having been revised in the interim period following the first HRA to remove proposed fishing stands and drainage.
The final full stage 2 HRA (TB1p422 – 450) concluded that (TB1p450):
"Having considered the nature, scale, timing, duration and location of the project it is concluded that, provided the following mitigation is conditioned in any planning approval, the proposal will not have an adverse effect on site integrity of any European site."
The necessary conditions were imposed. In short a full, detailed and adequate stage 2 assessment was carried out and appropriate mitigation was identified and applied.
The JR Applicant focuses upon the issue of discharge consent. The NIEA Water Management Unit (WMU) was consulted. It responded on 27th March 2015 (TB1A, page 451-454).
The WMU response expressly states (page 451):
"NIEA WMU has no objection in principle to this proposal providing all the statutory permissions for this development are obtained."
Whilst the letter says (entirely properly) that there is "no guarantee" the Court will note the recommendation at the bottom of page 451:
"NIEA WMU recommends that no development should take place on site until the method of sewerage disposal has either been agreed in writing with Northern Ireland Water or a consent to discharge has been granted."
This is a suggested condition. It is not an objection in principle. Nowhere does the consultation response suggest that there is any objection or site-specific issue relating to the development site.
The Court is asked to contrast the specific and detailed matters that are set out in respect of the construction works at the site – pages 452 453. This includes matters that are material to the Construction Environmental Management Plan (CEMP) and the requirement for an interceptor.
The NIEA WMU is a competent authority for the purposes of water discharge consent. Regulation 47 makes clear that the Council Planning Department is not required to undertake the HRA for water discharge. Regulation does not apply only to stage 1 assessment as contended for by the Applicant. This is plain from an ordinary reading of the regulations.
Planning guidance is prayed in aid in PPS16. However planning guidance does not set aside nor add to the statutory provisions.
Read in bonem partem, the NIEA WMU raised no objection in principal, and further raised no site-specific issues that would give rise to a sustainable objection.
The Respondent was entitled to give that response weight subject only to Wednesbury irrationality.
Furthermore the Respondent did consider the issue of sewerage. In the first EIA determination (Trial Bundle 1A, page 112 at 115) the characteristics of development stated:
"d. the production of waste:
There is a treatment works proposed for the site. The percolation area is at 33m contour level to be above the 100 year flood level of the river faughan and the new sewerage treatment system and percolation is per as environmental health and NIEA regulations."
The revised EIA determination of 6th December 2017 (TB1A, page 119 at 122 re-visits the issue of waste production. It is different and contains refinements to the consideration and assessment:
"d. the production of waste:
The development proposes a treatment works to manage sewerage produced by the development. The percolation area for this treatment works is proposed to be placed onsite between the 32-33 contour which is located above the 100 year flood level of the River Faughan to ensure no pollution enters the river during flooding events. The sewerage treatment works and percolation system proposed will be constructed as per NIEA and Environmental health requirements…"
The Applicant essentially contends for a requirement that every competent authority engaged in the consideration of different aspects of the same project should carry out a full HRA of all aspects of the project. Not only is that not required by the regulations but rather the Regulations expressly guard against one competent authority having to carry out the function of another. Unnecessary duplication of consideration is thereby avoided and assessment of different aspects of a project is left to the competent authority with the most appropriate expertise.
Put another way, regardless of the assessment of the Respondent, a further HRA screening is required in respect of the assessment of the NIEA WMU as a separate competent authority. There is no gap in assessment. The separate responsibility is recognised and dealt with in conditions.
As to whether the developer has yet sought consent any development carried out without the consent in place is carried out at risk. The NIEA WMU screening and consent will be required. If no such consent is forthcoming, the development cannot be occupied and the Respondent will address that should it arise.
Flaws in the HRA
"a screening opinion is different from an appropriate assessment which involves detailed consideration." 
"it is said to be common ground that mitigation measures may be considered as part of the process of appropriate assessment once it has been decided following screening that appropriate assessment should be carried out,"
This is not the process reflected in the Respondent's 26 June 2017 HRA. Rather, mitigation measures at the "stage one assessment", pre-appropriate assessment, identify the mitigation measures which subsequently inform planning conditions (incorrectly, in the case of the period where in-river works should only take place).
TRIAL BUNDLE 1a: [DB2 Tab45, page 462] – Revised HRA
Any reasonable reading of the HRA reveals the full two stage process being carried out. On no reasonable interpretation of the HRA in this instance can it be said that only a stage 1 assessment was carried out. Applicant full stage two assessment was carried out, at which stage it is permissible to take mitigation into account.
TRIAL BUNDLE 1b: [DB3 Tab61, page 608 – 609] - Loughs Agency
The Respondent was provided with two different date ranges by NIEA.
The first was in an NIEA response dated 28th October 2016 (TB1, page 131). That gave a range of 31st October to 31st May. This appears to have informed the HRA.
The second was in an NIEA response dated 2nd October 2017 (TB 1, pages 139-140 and sought 31st October to 31st March.
The Respondent imposed the second date range consistent with the advice and the express condition sought by NIEA (TB 1, page 140)
The Respondent does not object to a Court remedy that amends the condition and the dates sought if appropriate, and notwithstanding the advice of NIEA and SES.
This has already been dealt with above.
FAILURE TO CONSIDER IMPACT ON A EUROPEAN PROTECTED SPECIES (BATS)
"...every competent authority in the exercise of any of its functions shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions" 
"Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) in their natural range, [including] prohibiting:
(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;
(d) deterioration or destruction of breeding sites or resting places."
(i) Mr Rodgers's assertion finds no trace on the planning application file or PC report. The PC members were left unaware of previous concerns in respect of bats, or that there is historic evidence that bats are to be found in close proximity to the impugned permission.
(ii) Mr Rodgers is not the decision-maker. Nor is he qualified to take decisions on what impact there would be on bat habitats, particularly by placing reliance on a bat survey that was eleven years old when the impugned permission was submitted and over fourteen years old when the decision was taken. Indeed, there is simple no evidence that Mr Rodgers was even aware of the existence of the 2003 bat survey.
(iii) There is a requirement that bat surveys comply with the Bat Conservation Trust guidelines, which did not exist when the 2003 bat survey was undertaken. It falls significantly short of what is required in order to ensure compliance that impacts on bats have been taken into account.
(iv) By his own admission, any consideration of an impact on this European Protected Species was curtailed to loss of habitats suitable for bats. He did not consider how no disturbance would occur through the construction works, or artificial lighting, to name by two identified potential impacts on bats from development.
(v) Mr Rodgers's assessment at paragraphs 32 and 46 of his affidavit is contaminated by the flawed logic that the access road granted under the historic reserved matters permissions, which encroaches significantly into the crown-spreads and root systems of the mature woodland of the adjacent Holly Plantation, "…was already in place and therefore there would be no further impact upon trees or boundaries of the site through the utilisation of this access road in the current application." This is another objectively verifiable error of fact on the part of the Respondent, addressed below.
(vi) That in deciding it unnecessary to seek an additional assessment for bats, Mr Rodgers ignored the requirements of the Biodiversity Checklist which he is required to administer, which states that in such instances, "…clear justification for this must be provided."
The impact of the proposed development on bats was considered. The Case Officer's consideration and analysis in this regard is set out at CR paragraphs 27 – 33. In particular he considered and ruled out the need to request a survey beyond that available from 2003. Nor did the expert statutory consultee on the Environment (NIEA) raise any concern about bats even though it did specifically raise concerns regarding otters and badgers in its response of 27 April 2015 (TB1p403i – 403k).
Furthermore the Applicant produces no actual evidence to ground any concern regarding bats, much less any "credible evidence of a real, rather than hypothetical, risk". As such he has not established the ground on even a prima facie basis. In the alternative it would be pointless to quash the permission on this ground.
There is simply nothing to undermine the analysis of the Case Officer or to suggest that any concerns arises with respect to bats that ought to have been placed before the Planning Committee for consideration.
Further the two HRAs, the consultation responses of SES and NIEA failed to raise bats as a material issue in the context of the site.
In accordance with the principles in Morge therefore, regard having been had to the issue, and NIEA being satisfied, no unlawfulness is established (see paragraphs 30 and 44 of Morge in particular).
FAILURE TO UNDERTAKE AN ENVIRONMENTAL IMPACT ASSESSMENT
The Legal Principles
A general summary of the relevant principles as applied to screening decisions can be found at paragraph 16 of R (Long) v Monmouthshire County Council  EWHC 3130 (Admin):
(i) A screening opinion does not involve a detailed assessment of factors relevant to the grant of planning permission and does not require all considerations to be mentioned. In Respondent (Bateman) v South Cambridgeshire District Council  EWCA 157 Moore-Bick LJ (with whom Jackson LJ agreed) said:
"11 . . . the decision taken on a screening opinion must be carefully and conscientiously considered and must be based on information which is both sufficient and accurate. The opinion need not be elaborate, but must demonstrate that the issues have been understood and considered . . . .
20 . . . I think it important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term screening opinion.
21 Having said that, it is clear from Mellor that when adopting a screening opinion the planning authority must provide sufficient information to enable anyone interested in the decision to see that proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision. Such information may be contained in the screening opinion itself or in separate reasons, if necessary combined with additional material provided on request."
In Zeb v Birmingham District Council  Env LR 30 Beatson J said:
"It is important to remember what the purpose of a screening opinion is. It is to ascertain whether a development proposal requires an environmental assessment under the Directive. Detailed reports are not required. What is required is an initial assessment of an intended proposal. One sees this from the terms of the Regulations, in particular para 5(2)(aa). That refers to sufficient information to identify any planning permission granted for development for which a subsequent application is made. In relation to the nature and purpose of the development, para 5(2)(b) states that a 'brief description' is required. Although an authority is empowered to call for further information, the default position, (see para 5(4)), is that an authority is required to adopt a screening opinion within three weeks of a request. That default position gives some indication of the level of detail and the investigation required of the authority."
(ii) As to the reasons they "can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for the decision": South Bucks District Council and another v Porter (No 2)  UKHL 33,  4 All ER 775,  1 WLR 1953. A negative screening direction does not need to contain the reasons, these can be given subsequently, R (Mellor) v Secretary of State for Communities and Local Government (2010) Env LR 2 by the Court of Justice;
(iii) In assessing possible environmental effects remediation measures can, to a certain extent, be taken into account. Jones v Mansfield District Council  EWCA Civ 1408,  2 P & CR 233 Dyson LJ (as he then was) at 38:
". . . It is clear that a planning authority cannot rely on conditions and undertakings as a surrogate for the EIA process. It cannot conclude that a development is unlikely to have significant effects on the environment simply because all such effects are likely to be eliminated by measures that will be carried out by the developer pursuant to conditions and/or undertakings. But the question whether a project is likely to have significant effect on the environment is one of degree which calls for the exercise of judgment. Thus, remedial measures contemplated by conditions and/or undertakings can be taken into account to a certain extent (see Gillespie). The effect of the environment must be 'significant'. Significance in this context is not a hard-edged concept: as I have said, the assessment of what is significant involves the exercise of judgment."
R (Loader) v Secretary of State for Communities and Local Government  EWCA Civ 869,  3 CMLR 709, Pill LJ at 43:
"The decision maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision. Depending on the information available, the decision maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment. There may be cases where the uncertainties are such that a negative decision cannot be taken. Subject to that, proposals for ameliorative or remedial measures may be taken into account by the decision maker."
(iv) The judgment as to whether a development has significant effects upon the environment is a matter of planning judgment for the decision maker, only reviewable on Wednesbury grounds (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223,  2 All ER 680); R (Loader) v Secretary of State for Communities and Local Government  EWCA Civ 869 at 31, 36 and 43,  3 CMLR 709.
Furthermore the Respondent "is entitled to place considerable weight on the opinion of Natural England, as the expert national agency with responsibility for oversight of nature conservation, and ought to do so (absent good reason why not)" Smyth, at paragraph 85 (for the more general discussion on reliance on expert evidence see paragraphs 78 – 85)
Compliance with EIA requirements does not require perfection. A broad summary of applicable principles was also provided by Weatherup J in National Trusts' Application  NIQB 60 at paragraphs 40 onwards.
Screening should take place at an early stage in the design of the project but can occur after the application has been made or even after an appeal has been made.
"it is intrinsic to the scheme of the EIA Directive and the Regulations that the classification of the proposal is governed by the characteristics and effects of the proposal as presented to the [planning] authority and not by reference to the steps subsequently taken to address those effects." 
(i) by 2 May 2016, been in possession of the environmental information it requested [DB3 Tab55, 582 – 583];
(ii) completed a HRA on 25 May 2016, which concluded significant adverse effects on the integrity of the European site [DB1 Tab4, 90 – 91].
TRIAL BUNDLE 1b: [DB3 Tab56, page 585] – PMcC letter 26 July 2016
The Respondent has carried out two EIA determinations (TB1, page 112 to 118; 119 to 128).
The Respondent does not understand the Applicant challenges the EIA determination save in the context of the NIEA WMU consent issue which has already been dealt with above.
The complaint appears to be that there was a delay, and an assertion of an unspecified "illicit" conduct. This is dealt with below after all of the Applicant's argument regarding same.
TRIAL BUNDLE 1a: [DB1 TAB36, page 333]
This assertion is mere speculation. It is not supported by the chronology or the events. The exchange of correspondence on 14th September 2016 that is exhibited is incomplete. The complete chain of emails is contained in the second affidavit of Mr Rodgers. As appears from that chain, the planning applicant was complaining about the approach of the Respondent. Regardless of the planning applicant's complaints, the Respondent met with the planning applicant's representatives on 16th September 2016 and the response was the amended plans received on 19th September 2016.
TRIAL BUNDLE 1b: [DB3 Tab55, page 583] – MKA letter
The Respondent rejects the unfounded assertion of "illicit" conduct. There was no postponement. Instead the issues of concern were considered, consulted upon, drawn to the attention of the planning applicant, and assessed.
The application was screened on 6th December 2017 in light of all available information at that time and it was deemed that no Environmental Statement ("ES") was required (see CR at paragraphs 34 – 40 and TB1p119-128).
The real focus of the Applicant's attack is an alleged failure to screen the decision at an earlier stage at which stage he says an ES should have been required. This argument goes nowhere. It cannot be said that immediately upon receipt of a negative comment from a statutory consultee a positive screening is required. It is permissible to seek or await further information or to take into account revisions to an application. Indeed even had a positive screening decision been reached that would have had to have been reconsidered in light of changed circumstances. What is key is that the application is screened and that at that time it is properly and lawfully screened as was the case in this instance.
The procedure for assessment is set out in the Regulations, and the assessment is to be carried put within four weeks or such extended period as is agreed with the planning applicant. As appears hereafter, the planning applicant did agree extension of time until 10th October 2016.
The first EIA screening of 10th October 2016:
The first screening was determined on 10th October 2016 following receipt of amended plans on 19th September 2016: see Trial Bundle 1A, page 112. The first screening notes (TB1A, page 113) three consultations with Shared Environmental Services (SES), and three with NIEA. It records the initial proposal and the concerns with the fishing platforms. SES raised site integrity. NIEA raised otter and badger as concerns. Otter and badger surveys were requested. These did not alter the opinions regarding the fishing platforms. Information on methodology was requested and this failed to satisfy SES and NIEA on the fishing platforms. The reasons are clear and entirely adequate for the purpose of informing the public as to the level of consultation and the concerns that persisted.
The revised screening of 6th December 2017 (CR Affidavit at paragraphs 34–40 and TB1p119-128):
The revision records:
(i) two further consultations with SES (TB 1A, page 120)
(ii) three further consultations with NIEA and one that had been previously omitted (TB1A page 120);
(iii) consultations with Rivers Agency.
The determination records the SuDs (sustainable drainage system) being proposed on site, as well as the Construction Environmental Management Plan (CEMP). The provision of a sewerage treatment system on the 32-33 contour line above the 100 year flood level that satisfies NIEA requirements and Environmental Health is also noted (TB1 page 122).
In carrying out a screening for EIA, the Respondent is permitted to have regard to residual measures and undertakings. The Applicant seems to imply that the Respondent could not, or should not, have regard to amended plans. It is clear that the proposed construction of fishing stands in the river, together with a pathway close to the river were matters of concern to Shared Environmental Services.
As appears from the chain of email correspondence between 14th September 2016 and the screening determination on 10th October 2016, the Respondent sought and agreed extensions of time, and in particular received amended plans from the planning applicant on 19th September 2016. These plans formed the basis for the reconsideration by SES and the final HRA.
Even if an application is not screened within the time set down in the regulations or any agreed extended timeframe that does not vitiate the application or absolve the Respondent from having to screen it and determine it. It is still required to screen the application and thereafter determine it (whether or not an Environmental Statement is then required as a result of screening). Delay in carrying out the screening exercise cannot render a subsequently granted permission unlawful provided that the screening that was ultimately carried out displays no errors of law.
FAILURE TO ADEQUATELY CONSIDER THE DERRY AREA PLAN 2011
TRIAL BUNDLE 1a: [DB1 Tab37, page 339] – Policy ENV7
"Development proposals will be expected to take account of existing trees and hedges which in the interests of visual amenity and wildlife habitat should be retained." [DB1 Tab37, page 339].
"…that where existing trees and hedges are an important element of the landscape, a survey is carried out which indicates how the trees and features are to be protected during construction. Before development is carried out the Department [read Council] will require the submission of a site survey accurately showing the positions, species, heights and canopies of all significant trees and hedgerows."
ENV7 goes on to state:
"The Department will seek to achieve layouts which avoid the root systems of existing trees…" and "will seek to ensure the protection of such features through the inclusion of conditions in any permission granted."
TRIAL BUNDLE 1a: [DB1 Tab5, page 111] – Approved drawing
TRIAL BUNDLE 1a: [DB1 Tab40, p353] – PAC report
"given the unacceptable level of uncertainty relating to the landscape details and that such matters are integral to the overall acceptability of the development of the site, the proposal accordingly, does not meet the requirements of Policy ENV7 of the DAP."
Mr Rodgers failed to consider or resolve the uncertainty of the impact the access road would have on the important trees of the Holly plantation, despite acknowledging the encroachment into the crown-spreads / root systems of the mature trees of the Holly Plantation (see paragraph 46 of his affidavit).
TRIAL BUNDLE 2: [CR1, page 64 and 79 – 80] – MKA Report
TRIAL BUNDLE 1a: [DB1 Tab12, page 162] – RM drawing
TRIAL BUNDLE 1a: [DB1 Tab39, pages 343 – 346] – tree photos
TRIAL BUNDLE 1b: [DB3 Tab62, pages 619 – 668] - BS
(i) Section 5.3: Proximity of structures to trees. 
Here, at paragraph 5.3.1 it states that "the default position should be that structures (see 3.10) are located outside the RPAs [Root Protection Areas] of trees to be retained." Paragraph 3.10 defines a "structure" as a "manufactured object, such as a building, carriageway, path…and built or excavated earthwork." 
(ii) Section 4.6: Root Protection Area (RPA) 
Here, paragraph 4.6.1, in conjunction with Annex D sets out how the RPA should be calculated. For example, single trunk trees of a modest diameter of 500mm require a radius of six (6) metres RPA. 
(iii) Section 6.2: Barriers and ground protection 
Here, at paragraph 18.104.22.168 it states that "all trees that are being retained on site should be protected by barriers and / or ground protection."
(iv) Section 7.2: Avoiding physical damage to the roots during demolition and construction 
Here, at paragraph 7.2.1 it states, "to avoid damage to tree roots, existing ground levels should be retained within the RPA."
The Case Officer expressly advised the Planning Committee that the proposed development complied with the Derry Area Plan 2011 in his slide presentation (Trial Bundle 2 – Respondent, pages 15 and 27).
The JR Applicant having particularised the elements of the policy issues relating to ENV7, 8 and 9, Mr Rodgers has responded -
The issues are addressed in CR 2, (TB R2 affidavit page xxxvii, paras 27 to 42)
Policy ENV 1 is specific to the applicant site.
The policy in ENV 1 emphasises, inter alia:
"4.8 The quality, character and importance of the AoHSV derives from a combination of the following
"4.9 All AoHSV lie within the Green Belt and will remain undeveloped in the long term interests of the City and District. Whilst a limited number of uses may be acceptable within the Green Belt this does not imply that these uses will necessarily be acceptable within the AoHSV. In addition to meeting Green Belt policies, the development must demonstrate that there will be no adverse impacts or changes on the character or quality of the landscape. Particular attention will be paid to the way proposals conserve and enhance the landscape of the AoHSV."
ENV1 expressly requires assessment of the landscape in the context of the river setting and landscape quality.
The ENV 7 issue regarding trees resolves to the issue of the photograph of one root at a holly tree near the fence. There is (again) no evidence of damage or harm and no evidence was presented at any time in respect of such an issue. The matter is more fully set out at CR Affidavit 2 (TB Resp 2, page xxxviii, paras 30-35.
There is no evidence that the single tress root identified, or the tree is material to habitats as asserted.
This is an issue (like many others) that could have been the subject of submission at any time during the planning process, when the JR applicant was in correspondence and made presentations to the Planning Committee.
TUI 1 is a permissive policy and TUI2 requires compliance with basic principles of good design and landscaping. The proposition that design and landscaping matters were not at the forefront of the EIA consultations is unsustainable.
MISINTERPRESTION OF PPS16: TOURISM, POLICY TSM5
TRIAL BUNDLE 1a: [DB1 Tab 41, pages 362 – 364] – PPS 16: TSM5
(i) misunderstood the wording of policy TSM5 by omitting the word "new" from category a), and
(ii) made an objectively verifiable error of fact by misleading the PC in a material way into mistakenly believing that the proposed chalets were to be "largely located over the footprint of the approved chalets…" [DB1 Tab5, 105], which it considered justified compliance with policy.
"a) one or more new units all located within the grounds of an existing or approved…self-catering complex" [DB1 Tab41, page 362].
"a) one or more units all located within the grounds of an existing or approved…self-catering complex [page 401]. It omitted the word "new".
Moreover, it is evident that this post-decision error is a carry-over from the erroneous policy test applied by Mr Rodgers in his report to the Planning Committee [DB1 Tab5, page 105] where the word "new", leaves no trace in the policy evaluation. What this demonstrates is that the Respondent, both pre-decision and post-permission, did not consider the correct policy wording or thrust of TSM5(a) when (i) determining the impugned permission and (ii) resisting the application for leave to judicially review.
"Where self-catering units are permitted on the basis of an associated tourist accommodation…it is imperative that the primary tourism use which provides the justification is in place and functioning, before the units become operational. The policy therefore requires a condition to be attached to approvals to this effect" [DB1 Tab41, page 363] (my emphasis).
The policy relates to "existing or approved". That disjunctive plainly captures developments with planning permission that are not developed. The proposition that the development must be "in place and functioning" is manifestly unsustainable by reference to the actual wording of the policy. Further the assertion of the JR Applicant that the PPS16 policy does not apply to a permission that preceded it is equally unsustainable. The policy expressly directs regard to "approved" sites.
The impugned proposal is "new", with the positioning and stamped approved drawings, but that distinction is irrelevant. The Respondent was entitled to have regard to the policy as it expressly relates to sites with planning permission.
The issue of the commencement of development is already addressed, as is the issue of the lawfulness of that approach.
THE SUBMISSION OF THE PLANNING APPLICANT, MS CATHERINE DEERY
Dean Blackwood BSc (Hons) LLM MRTPI
River Faughan Anglers Ltd. 17 September 2018
Note 1 Huddlestone-v-Lancashire Country Council  2 All ER, page 942a. [Back] Note 2 Morge-v-Hampshire County Council  UKSC 2. P36. [Back] Note 3 E-v-SOS for the Home Department  QB 1044, p66. [Back] Note 4 Whitley & Sons Co Ltd-v-Secretary of State for Wales (1992) 64 P&CR 296, page 6 (4th para.). See also Greyford Properties Ltd-v-SoSCLG  EWCA Civ 908, p6. [Back] Note 5 Henry Boot Homes Ltd-v-Bassetlaw District Council (SoSCLG)  EWCA Civ 983, p27. See also Bedford Borough Council-v-Secretary of State for Communities and Local Government  EWHC 2304 (Admin), p51 and Ellaway-v-Cardiff County Council  EWHC 836 (Admin), p47 and p64. [Back] Note 6 R(CPRE)-v-Dover District Council  UKSC 79, p35. [Back] Note 7 Alexander-v-Causeway Coast & Glens Borough Council  NIQB 55, p. [Back] Note 8 Hart Aggregates Ltd-v-Hartlepool Borough Council  EWHC 840 (Admin), p58. [Back] Note 9 Lamont-v-Department of the Environment  NIQB 3, p. [Back] Note 10 Ellaway-v-Cardiff County Council  EWHC 836 (Admin), p21, 33, 55, 57 and 65. See also Henry Boot Homes Ltd-v-Bassetlaw District Council (SoSCLG)  EWCA Civ 983, p60. [Back] Note 11 See paragraph 22 of Mr Rodgers’s affidavit, page xvi, Trail Bundle 2. [Back] Note 12 Trustees of Barker Mill Estates-v-Test Valley Borough Council  EWHC 3028 (Admin), p26. [Back] Note 13 Landelike Vereniging tot Betoud van de Waddenzee-v-Statsecretaris van Landbouw Natuurbehher en Visserij Case C-127/02. [Back] Note 14 Sweetman-v-An Bord Pleanála Case C-258/11. [Back] Note 15 Refer to footnote 13, p59. [Back] Note 16 Smyth v Secretary of State for Communities and Local Government  EWCA Civ 174, at paragraphs 56 - 62 [Back] Note 17 Smyth, at paragraphs 78 – 80 [Back] Note 18 Smyth, at paragraph 85 (for the more general discussion on reliance on expert evidence see paragraphs 78 – 85) [Back] Note 19 per the English Court of Appeal in R (on the application of Lee Valley Regional Park Authority) v Epping Forest District Council and another  EWCA Civ 404 at paragraph 65 citing with approval the comments of Sullivan J in R (on the application of Hart District Council) v Secretary of State for Communities and Local Government  2 P. & C.R. 16,  EWHC 1204 (admin) (at paragraph 71) [Back] Note 20 I> Lee Valley at paragraph 65 [Back] Note 21 per Sullivan LJ in R (Boggis) v Natural England  PTSR 725 at paragraphs 37 -38, approved by Treacy J in Newry Chamber of Commerce at paragraph 65. See also R (on the application of Hart District Council) v Secretary of State for Communities and Local Government  2 P. & C.R. 16,  EWHC 1204 (admin) at paragraph 81 - “merely expressing doubt without providing reasonable objective evidence for doing so is not sufficient” before the requirements of article 6(3) of the Directive are applied. [Back] Note 22 Paragraph 69 of Newry Chamber of Commerce [Back] Note 23 Sweetman-v-An Bord Pleanála Case C-258/11, page 5 of 6, 2nd paragraph. [Back] Note 24 Ibid., page 6 of 6, 4th paragraph. [Back] Note 25 Ibid., page 5 of 6, 4th paragraph. [Back] Note 26  NIQB 30, p. [Back] Note 27 People Over Wind / Sweetman-v-Coillte Teoranta Case C-323/17, page 5 of 5, 5th para. [Back] Note 28 Champion-v-North Norfolk District Council  UKSC 52, p48. [Back] Note 29 This reflects the direction of Regulation 3(4) of the Conservation (Natural Habitats, etc.) Regulations 1994, cited in Morge-v-Hampshire County Council  UKSC 2, p3. [Back] Note 30 Morge-v-Hampshire County Council  UKSC 2. p44 [Back] Note 31 Alexander-v-Causeway Coast & Glens Borough Council  NIQB 55, p10. [Back] Note 32 Refer to footnote 22, p36. [Back] Note 33 Belfast City Council-v-Planning Appeals Commission  NIQB 17, p58. [Back] Note 34  NIQB 30, p. [Back] Note 35 European Commission (2001)Assessment of plans and projects significantly affecting Natural 2000 sites, p12, para.2.4. Exhibited at [DB1 Tab33, 275]. [Back] Note 36 Champion-v-North Norfolk District Council  EWCA Civ 1675, p15. [Back] Note 37 Champion-v-North Norfolk District Council  UKSC 52, p43. [Back] Note 38 Ibid., p42 [Back] Note 39 The Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 2012, Regulation 10(3). [Back] Note 40 R (Blewett) v. Derbyshire County Council  Env LR 29 at - [Back] Note 41 Champion-v-North Norfolk District Council  UKSC 52, p47. [Back] Note 42 Berkeley-v-Secretary of State for the Environment  UKHL 36, section 7 (page 7 of 11). [Back] Note 43 Champion-v-North Norfolk District Council  UKSC 52, p45 [Back] Note 44 Ibid., 48 [Back] Note 45 Champion-v-North Norfolk District Council  UKSC 52, p49(45). [Back] Note 46 Persimmon Homes Teesside Ltd-v-the Queen in the case of KP Lewis  EWCA Civ 746, p107 - 108. [Back] Note 47 Champion-v-North Norfolk District Council  UKSC 52, p46. [Back] Note 48 Ibid., p53. [Back] Note 49 Hegarty-v-Department of Justice  NIQB 20, p. [Back] Note 50 BDW Trading Ltd-v-Secretary of State for Communities and Local Government  EWCA Civ 493, p21. [Back] Note 51 Tesco Stores Ltd-v-Dundee City Council  UKSC 13, p18. [Back] Note 52 St James Homes Ltd-v-Secretary of State for the Environment, Transport and the Regions  EWHC Admin 30, p47 – 48. [Back] Note 53 Refer to footnote 43, p21. [Back] Note 54 Belfast City Council-v-Planning Appeals Commission  NIQB 17, p58 [Back] Note 55 Tesco Stores Ltd-v-Dundee City Council  UKSC 13, p18. [Back] Note 56 Lamont-v-Department of the Environment  NIQB 3, p – . [Back] Note 57 Refer to footnote 12. Refer also to footnote 48, p. [Back] Note 58 Department of the Environment (2013) Planning Policy Statement 16: Tourism. [Back] Note 59 Mansell-v-Tonbridge and Malling Borough Council  EWCA Civ 1314, p(3). [Back] Note 60 Huddlestone-v-Lancashire Country Council  2 All ER, page 945e. [Back]
Note 1 Huddlestone-v-Lancashire Country Council  2 All ER, page 942a. [Back]
Note 2 Morge-v-Hampshire County Council  UKSC 2. P36. [Back]
Note 3 E-v-SOS for the Home Department  QB 1044, p66. [Back]
Note 4 Whitley & Sons Co Ltd-v-Secretary of State for Wales (1992) 64 P&CR 296, page 6 (4th para.). See also Greyford Properties Ltd-v-SoSCLG  EWCA Civ 908, p6. [Back]
Note 5 Henry Boot Homes Ltd-v-Bassetlaw District Council (SoSCLG)  EWCA Civ 983, p27. See also Bedford Borough Council-v-Secretary of State for Communities and Local Government  EWHC 2304 (Admin), p51 and Ellaway-v-Cardiff County Council  EWHC 836 (Admin), p47 and p64. [Back]
Note 6 R(CPRE)-v-Dover District Council  UKSC 79, p35. [Back]
Note 7 Alexander-v-Causeway Coast & Glens Borough Council  NIQB 55, p. [Back]
Note 8 Hart Aggregates Ltd-v-Hartlepool Borough Council  EWHC 840 (Admin), p58. [Back]
Note 9 Lamont-v-Department of the Environment  NIQB 3, p. [Back]
Note 10 Ellaway-v-Cardiff County Council  EWHC 836 (Admin), p21, 33, 55, 57 and 65. See also Henry Boot Homes Ltd-v-Bassetlaw District Council (SoSCLG)  EWCA Civ 983, p60. [Back]
Note 11 See paragraph 22 of Mr Rodgers’s affidavit, page xvi, Trail Bundle 2. [Back]
Note 12 Trustees of Barker Mill Estates-v-Test Valley Borough Council  EWHC 3028 (Admin), p26. [Back]
Note 13 Landelike Vereniging tot Betoud van de Waddenzee-v-Statsecretaris van Landbouw Natuurbehher en Visserij Case C-127/02. [Back]
Note 14 Sweetman-v-An Bord Pleanála Case C-258/11. [Back]
Note 15 Refer to footnote 13, p59. [Back]
Note 16 Smyth v Secretary of State for Communities and Local Government  EWCA Civ 174, at paragraphs 56 - 62 [Back]
Note 17 Smyth, at paragraphs 78 – 80 [Back]
Note 18 Smyth, at paragraph 85 (for the more general discussion on reliance on expert evidence see paragraphs 78 – 85) [Back]
Note 19 per the English Court of Appeal in R (on the application of Lee Valley Regional Park Authority) v Epping Forest District Council and another  EWCA Civ 404 at paragraph 65 citing with approval the comments of Sullivan J in R (on the application of Hart District Council) v Secretary of State for Communities and Local Government  2 P. & C.R. 16,  EWHC 1204 (admin) (at paragraph 71) [Back]
Note 20 I> Lee Valley at paragraph 65 [Back]
Note 21 per Sullivan LJ in R (Boggis) v Natural England  PTSR 725 at paragraphs 37 -38, approved by Treacy J in Newry Chamber of Commerce at paragraph 65. See also R (on the application of Hart District Council) v Secretary of State for Communities and Local Government  2 P. & C.R. 16,  EWHC 1204 (admin) at paragraph 81 - “merely expressing doubt without providing reasonable objective evidence for doing so is not sufficient” before the requirements of article 6(3) of the Directive are applied. [Back]
Note 22 Paragraph 69 of Newry Chamber of Commerce [Back]
Note 23 Sweetman-v-An Bord Pleanála Case C-258/11, page 5 of 6, 2nd paragraph. [Back]
Note 24 Ibid., page 6 of 6, 4th paragraph. [Back]
Note 25 Ibid., page 5 of 6, 4th paragraph. [Back]
Note 26  NIQB 30, p. [Back]
Note 27 People Over Wind / Sweetman-v-Coillte Teoranta Case C-323/17, page 5 of 5, 5th para. [Back]
Note 28 Champion-v-North Norfolk District Council  UKSC 52, p48. [Back]
Note 29 This reflects the direction of Regulation 3(4) of the Conservation (Natural Habitats, etc.) Regulations 1994, cited in Morge-v-Hampshire County Council  UKSC 2, p3. [Back]
Note 30 Morge-v-Hampshire County Council  UKSC 2. p44 [Back]
Note 31 Alexander-v-Causeway Coast & Glens Borough Council  NIQB 55, p10. [Back]
Note 32 Refer to footnote 22, p36. [Back]
Note 33 Belfast City Council-v-Planning Appeals Commission  NIQB 17, p58. [Back]
Note 34  NIQB 30, p. [Back]
Note 35 European Commission (2001)Assessment of plans and projects significantly affecting Natural 2000 sites, p12, para.2.4. Exhibited at [DB1 Tab33, 275]. [Back]
Note 36 Champion-v-North Norfolk District Council  EWCA Civ 1675, p15. [Back]
Note 37 Champion-v-North Norfolk District Council  UKSC 52, p43. [Back]
Note 38 Ibid., p42 [Back]
Note 39 The Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 2012, Regulation 10(3). [Back]
Note 40 R (Blewett) v. Derbyshire County Council  Env LR 29 at - [Back]
Note 41 Champion-v-North Norfolk District Council  UKSC 52, p47. [Back]
Note 42 Berkeley-v-Secretary of State for the Environment  UKHL 36, section 7 (page 7 of 11). [Back]
Note 43 Champion-v-North Norfolk District Council  UKSC 52, p45 [Back]
Note 44 Ibid., 48 [Back]
Note 45 Champion-v-North Norfolk District Council  UKSC 52, p49(45). [Back]
Note 46 Persimmon Homes Teesside Ltd-v-the Queen in the case of KP Lewis  EWCA Civ 746, p107 - 108. [Back]
Note 47 Champion-v-North Norfolk District Council  UKSC 52, p46. [Back]
Note 48 Ibid., p53. [Back]
Note 49 Hegarty-v-Department of Justice  NIQB 20, p. [Back]
Note 50 BDW Trading Ltd-v-Secretary of State for Communities and Local Government  EWCA Civ 493, p21. [Back]
Note 51 Tesco Stores Ltd-v-Dundee City Council  UKSC 13, p18. [Back]
Note 52 St James Homes Ltd-v-Secretary of State for the Environment, Transport and the Regions  EWHC Admin 30, p47 – 48. [Back]
Note 53 Refer to footnote 43, p21. [Back]
Note 54 Belfast City Council-v-Planning Appeals Commission  NIQB 17, p58 [Back]
Note 55 Tesco Stores Ltd-v-Dundee City Council  UKSC 13, p18. [Back]
Note 56 Lamont-v-Department of the Environment  NIQB 3, p – . [Back]
Note 57 Refer to footnote 12. Refer also to footnote 48, p. [Back]
Note 58 Department of the Environment (2013) Planning Policy Statement 16: Tourism. [Back]
Note 59 Mansell-v-Tonbridge and Malling Borough Council  EWCA Civ 1314, p(3). [Back]
Note 60 Huddlestone-v-Lancashire Country Council  2 All ER, page 945e. [Back]