BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just Β£1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
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 >> Alexander v Causeway Coast and Glens Borough Council [2018] NIQB 55 (21 June 2018) URL: http://www.bailii.org/nie/cases/NIHC/QB/2018/55.html Cite as: [2018] NIQB 55 |
||
[New search] [Printable RTF version] [Help]
Ref: McC10664
Neutral Citation No: [2018] NIQB 55
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Delivered: 21/06/2018
McCLOSKEY J
Preface
The hearing of this judicial review challenge, which acquired certain organic and unpredictable elements as it progressed, was conducted over a period of several days, ending on 13 June 2018. Having regard to the full history, coupled with the position of the developer and the developing situation on the subject site, an acute need for certainty and finality has emerged. While regrettable instances of non-compliance with the Court's directions and the Judicial Review Practice Note delayed the initiation of the hearings, considerable expedition has still proved possible.
Introduction
The challenge
(a) Error of Law re "fall back": the Council erred in relying upon a Certificate of Lawful Use or Development ("the Statutory Certificate") regarding a concrete blockworks plant on around 50% of the site, as this land use had expired through extinguishment or abandonment.
(b) By reason and in consequence of (a), the Council erred in law in relying upon and purporting to give effect to Planning Policy Statement 4 ("PPS4"), as there was no "established" economic development.
(c) The Council misconstrued and/or misapplied Planning Policy Statement 16 ("PPS16") by focusing on the question of whether the site, rather than the area (see TSM6), had the capacity to absorb the proposed development.
(d) Disregard of a material consideration, namely the visual impact of the proposed development on the surrounding landscape, in contravention of policies TSM6 and TSM7 of PPS16.
(e) Misconstruction and/or misapplication of Planning Policy Statement 3 ("PPS3"), specifically AMP2 thereof, regarding the traffic impact of the proposed development; and, hence, disregard of a material consideration; and/or acting irrationally.
(f) An outright failure to have regard to two material considerations namely policies CTY13 and CTY14 enshrined in Planning Policy Statement 21 "Sustainable Development in the Countryside" ("PPS21").
(g) Contravention of planning policy, namely Planning Policy Statement 11 "Planning and Waste" ("PPS11"), specifically Policy WM5 thereof, by failing to require an odour assessment.
(h) EIA error of law and/or irrationality in the Council's "screening" assessment/decision that the planning application did not entail "EIA Development" within the compass of the Planning (Environmental Impact Assessment) Regulations (NI) 2017 (the "EIA Regulations") given the hydrological link between the site and sites designated under the Conservation (Natural Habitats) Regulations (NI) 1995 (the "Habitats Regulations") and the absence of any Construction Environmental Management Plan (the "CEM Plan").
(i) Material information, namely aerial photographs and photomontages of the site, was not considered by all members of the Council's planning committee (the "PC").
The impugned decision
"Site of proposed development: Portrush block yard, Craigahulliar Quarry, 45 Craigahulliar Road, Portrush
Description of proposal: Demolition of existing sheds. Proposed caravan park including sites for 51 touring caravans, 49 static caravans, 18 camping cabins, managers and amenity caravans, access roads and landscaping, improvement of Ballymacrea Road (including new public footpath) to improve site access and carriageway improvements at numbers 39, 90 metres west of 59D, 59C/59G and 67 Ballymacrea Road and at the Ballymacrea/Ballybogey Roads junction
Applicant: Blairs Caravans Limited
Agent: GM Design Associates Limited."
The development approval was granted subject to a detailed code of conditions.
Some key dates and events
(a) Historically, the site was used for basalt quarrying for some 150 years.
(b) In the 1960s the larger, composite area which includes the subject site, was effectively subdivided. Quarrying on the site was discontinued and, following substantial alterations to levels and the construction of a hardened surface, the land use became the manufacture and storage of concrete blocks which continued for some 45 years.
(c) While full planning permission for renewed quarrying was granted in December 1974, this was not implemented and later expired.
(d) On 14 May 2008 the Department of the Environment ("the Department") certified, under Article 83(a) of the Planning (NI) Order 1991 that " the concrete manufacturing and storage works have been in operation in excess of ten years. The operations are therefore immune from enforcement action and can only be regularised by the granting of this certificate of lawful development". The statutory certificate was granted to Cemex (NI) Limited ("Cemex").
(e) In April 2012 the subject site was marketed and was subsequently purchased by the developer noted above.
(f) On 22 March 2013 the developer's application for planning approval culminating in the impugned decision was made to the Department of the Environment (the "Department").
(g) On 30 June 2015 the Council, which had by statute assumed the decision making function of the Department, granted the planning permission sought.
(h) In September 2015 this applicant challenged the aforementioned decision by judicial review and, on 08 February 2016, an order quashing such decision was made by consent of the parties.
(i) During the period which followed the Council was engaged in the exercise of remaking the decision.
(j) On 27 September 2017, nine members of the Council's Planning Committee (the "PC") which has a membership of 13, visited the subject site, accompanied by Council planning officers.
(k) At its public meeting later on the same date, the Council's PC resolved to approve the planning application, eight members voting in favour, four against and one abstaining.
(l) On 11 December 2017 these proceedings were initiated and, following an inter-partes leave hearing, by order dated 16 March 2018 leave to apply for judicial review was granted. The ensuing substantive hearing was spread across several dates: 11 May and 01, 04 06, 07 and 13 June 2018.
The Planning History, or "fall back", Ground
"The property is situated beside Craigahulliar landfill site which is owned and operated by Coleraine Borough Council. The property comprises of [sic] a former concrete block plant with associated warehousing and outbuildings together with an area of land that was previously quarried."
[Emphasis added.]
"With the cessation of block making in 2011, the site was closed."
Some three months later, in a letter dated 24 May 2013 to the Department's Area Planning Office, the developer's agents outlined the history of the site in essentially the same terms and then stated:
"The manufacture and storage of concrete blocks on a very large area, however, including all of the north western part of the quarry as approved in 1974 continued up until recently."
[My emphasis.]
The author then proffered two reasons for contending that in law no abandonment had accrued. First
".. the site remains in a condition and with all the buildings necessary to allow the commencement of the approved operation at any time."
Second:
"Also only a short period has passed since the last operator ceased business on the application site."
The author also employed the description "an established, very large, vacant industrial site in an unsightly condition."
"The main considerations in the determination of this application relates to planning history and fall-back; principle of the development (PPS4/PPS16/SPPS); traffic/road issues; impact on amenity; flooding and land drainage; compatibility of development with adjacent land uses (PPS11); impact on designated sites; and other matters."
The report then outlines the relevant policy framework. There is no suggestion on behalf of the applicant of any omission or error in this respect.
"This certificate means that a concrete block yard could, at any time, begin operating within this site without the need for a planning application. This is a material consideration in assessing the proposed caravan site."
The author then adverts to one of the objections, namely a contention that as the certified use had "subsequently ceased", there is "no fall-back position". Acknowledging (correctly) that this raises an issue of law, the author then refers to certain decided cases and a planning law text. Next, he states:
"However, as the objector has raised the issue of a fall-back position, there is a need to consider if the use as a block yard, established through the [statutory certificate], has been abandoned."
"[The] tests include the physical condition of the building; the length of time for which the building had not been used; whether it had been used for any other purpose; and the owner's intentions. The buildings still remain and the physical condition, when the planning application was submitted, was that of a block yard. A satellite image of the land shows blocks still on site in July 2011. The application was submitted in early 2013
It does not appear that the land has been used for any other purpose, other than importing spoil onto the site in accordance with the previous permission and prior to the quashing of this decision, which is still on site. The owner's intention was to change the use of a block yard to a caravan park, which is the subject of this application. Having regard to these factors, it is not considered that the previous use has been abandoned."
[My emphasis.]
In the "Errata" annex which accompanied the PPO's report, the following was added:
"Were operations to resume, it is the official's planning judgement that enforcement action would not be appropriate given the history of the site and the factors considered above."
"The [Gambone**] case makes clear that once the question of whether or not the fall-back matter is material to the decision has been concluded, which is accepted here, the question for the decision maker is what weight should be attached to it the weight which might be attached to the fall-back position will vary materially from case to case and will be particularly fact sensitive."
(**As regards Gambone: see [25] infra.)
The text continues:
"In this case, officials are of the opinion that, should the concrete block yard use resume, that [sic] this industrial use in the countryside, with HGVs coming to and from the site, is likely to have a greater impact on the countryside and its environs than a tourism use of a holiday park. Therefore significant weight is apportioned to the fall-back position of the planning history as a material consideration .
Given the foregoing, the Council's position cannot be considered to fall foul of the Wednesbury unreasonable test."
[Emphasis added.]
The penultimate sentence, which I have highlighted, is contained in the body of the report. However, in the 'Errata' supplement it is deleted. This section of the report ends with the omnibus conclusion:
"Therefore, having regard to the planning history, it is considered there is a fall-back position of a concrete block yard to lawfully operate at this site."
In a later passage the author adds that the block yard use " is established and can recommence at any time".
" a large scale land engineering exercise had been undertaken by the owner .. to prepare the ground for the caravan site. The works entailed raising the levels of the site and creating the discrete groupings where the caravans would sit
Block making requires large level areas for the machinery to lay the blocks onto
The removal of [a large area of hard standing] through the land forming exercise would leave the land in a condition where block making could not have been resumed as planning permission would have been required to remove the imported material and re-lay the level surface."
These assertions, which are contentious, form a significant part of the evidential foundation for the contention that the concrete block making land use had been extinguished. Mr Worthington further suggests that the possibility of "extinguishment" was nowhere considered in the PPO's report.
(a) On 12 September 2017 the PPO's report was published on the Council's 'Planning Portal'.
(b) The same report was published on the Council's website and distributed to PC members by email on 13 September 2017.
(c) The visit to the subject site by nine of the 13 PC members was conducted on the morning of 27 September 2017 when those in attendance, who included two Council planning officers, (per the contemporaneous record) " walked to the access and there was an overview given that there will be works to the existing site access and road works to the Ballymacrea Road including passing bays ... the location of the passing bays was clarified with Members ".
(d) On the afternoon of the same date the planning approval application was presented to the PC, at its scheduled public meeting by the PPO and the Senior Planning Officer (Mr Wilson SPO).
"Issues raised included fall-back position, traffic volume, impact on road safety, visual impact and landscaping .. jobs, economic benefit to wider area, need for accommodation .. environmental improvement .. traffic incidents, speed limit, road safety and passing bays."
The questions canvassed by PC members included:
".. fall-back position, nature of objections and peak times for refuse vehicles driving near the site location."
By a vote of eight to four, with one abstention, the PC resolved to adopt the PPO's recommendation that planning approval be granted.
"I think that when a man ceases to use a site for a particular purpose and lets it remain unused for a considerable time, then the proper inference may be that he has abandoned the former use. Once abandoned, he cannot start to use the site again, unless he gets planning permission: and this is so, even though the new use is the same as the previous one
The material time is when he starts on the new use
The question in all such cases is simply this, has the cessation of use (followed by non-use) been merely temporary or did it amount to an abandonment?"
What are the tools to be applied in answering this fundamental question: Lord Denning MR continues at 420H:
"Abandonment depends on the circumstances. If the land has remained unused for a considerable time, in such circumstances that a reasonable man might conclude that the previous use had been abandoned, then the Tribunal may hold it to have been abandoned."
[My emphasis.]
"The status of a fallback development as a material consideration in a planning decision is not a novel concept. It is very familiar. Three things can be said about it:
(1) Here, as in other aspects of the law of planning, the court must resist a prescriptive or formulaic approach, and must keep in mind the scope for a lawful exercise of planning judgment by a decision-maker.
(2) The relevant law as to a 'real prospect' of a fallback development being implemented was applied by this court in Samuel Smith Old Brewery (see, in particular, paragraphs 17 to 30 of Sullivan L.J.'s judgment, with which the Master of the Rolls and Toulson L.J. agreed; and the judgment of Supperstone J. in R. (on the application of Kverndal) v London Borough of Hounslow Council [2015] EWHC 3084 (Admin), at paragraphs 17 and 42 to 53). As Sullivan L.J. said in his judgment in Samuel Smith Old Brewery, in this context a 'real' prospect is the antithesis of one that is 'merely theoretical' (paragraph 20). The basic principle is that ' for a prospect to be a real prospect, it does not have to be probable or likely: a possibility will suffice' (paragraph 21). Previous decisions at first instance, including Ahern and Brentwood Borough Council v Secretary of State for the Environment [1996] 72 P. & C.R. 61 must be read with care in the light of that statement of the law, and bearing in mind, as Sullivan L.J. emphasized, ' 'fall back' cases tend to be very fact-specific" (ibid.). The role of planning judgment is vital. And '[it] is important not to constrain what is, or should be, in each case the exercise of a broad planning discretion, based on the individual circumstances of that case, by seeking to constrain appeal decisions within judicial formulations that are not enactments of general application but are themselves simply the judge's response to the facts of the case before the court' (paragraph 22).
(3) Therefore, when the court is considering whether a decision-maker has properly identified a 'real prospect' of a fallback development being carried out should planning permission for the proposed development be refused, there is no rule of law that, in every case, the 'real prospect' will depend, for example, on the site having been allocated for the alternative development in the development plan or planning permission having been granted for that development, or on there being a firm design for the alternative scheme, or on the landowner or developer having said precisely how he would make use of any permitted development rights available to him under the GPDO. In some cases that degree of clarity and commitment may be necessary; in others, not. This will always be a matter for the decision-maker's planning judgment in the particular circumstances of the case in hand."
In a later passage Lindblom LJ added, at [42]:
"(3) Where the line is drawn between an officer's advice that is significantly or seriously misleading misleading in a material way and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council [2016] EWCA Civ 795), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council [2017] EWCA Civ 152 ). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council [2017] EWCA Civ 427). But unless there is some distinct and material defect in the officer's advice, the court will not interfere."
"Existing use rights may be lost when there is a material change in use to another use: this is because the reversion to the former use will normally itself involve development requiring planning permission. It makes no difference that the change is from a use which was itself instituted with the benefit of planning permission, because that permission is spent when the development authorised by it has occurred."
It is convenient to highlight at this juncture another principle, namely that there is no distinction to be made between a land use authorised by a grant of planning permission and one which has the benefit of a statutory certificate, each being capable in law of being abandoned: see M&M v Secretary of State for Communities and Local Government [2007] 2 P and CR18. The applicable test as regards this discrete issue, in my view, is whether the historical land use under scrutiny was lawfully permitted, by whatever means. In passing, from this it would appear to follow logically that an unlawful historical land use cannot be reckoned in any "fall back" debate.
"25. The fallback argument is in truth no more or less than an approach to material considerations in circumstances where there are, or may be, the opportunity to use land in a particular way, the effects of which will need to be taken into account by the decision-maker. That involves a two-stage approach. The first stage of that approach is to decide whether or not the way in which the land may be developed is a matter which amounts to a material consideration. It will amount to a material consideration on the authorities, in my view, where there is a greater than theoretical possibility that that development might take place. It could be development for which there is already planning permission, or it could be development that is already in situ. It can also be development which by virtue of the operation of legal entitlements, such as the General Permitted Development Order, could take place."
Continuing, the Judge identified a second stage of the intellectual exercise to be performed, at [26]:
"26. Once the question of whether or not it is material to the decision has been concluded, applying that threshold of theoretical possibility, the question which then arises for the decision-maker is as to what weight should be attached to it. The weight which might be attached to it will vary materially from case to case and will be particularly fact sensitive."
The familiar concept of evaluative planning judgement and its doctrinal relative, Wednesbury unreasonableness (or irrationality), shine brightly in this passage. What emerges with particular clarity in this case and others is that the second stage evaluative judgement (how much weight?) falls to be made only where there is a realistic possibility that the alternative land use in question will be undertaken. This question will, self-evidently, demand a negative answer in any case where the assessment is that the alternative use is, as a matter of law, defunct. I consider that evaluative judgement infiltrates both stages of this exercise.
"Main issue fall-back position legal cases fight is abandoned Planning required for Block so no fall back even if fall back, Block only covers half site fall back in error ."
In the solicitor's notes, under the banner of "Question Session", one finds the following:
"Fall back officer report
View reasonable man realistic proposition restarted
Abandonment is fact specific with no intention to resume -
Reasonable man with knowledge of circumstances ..
REAL NOT THEORETICAL . POSSIBLE
BLOCK MAKING COULD RESUME "
[No emphasis supplied]
The Traffic and Roads Ground
"The Council erred in fact and failed to make adequate enquiry in considering that the proposed development would not prejudice road safety or significantly inconvenience the flow of traffic."
The components of this ground are the asserted lack of provision of projected traffic figures/volumes; erroneous information concerning the projected number of occupants per vehicle; the absence of baseline figures for current traffic volumes; the non-viability of the vehicle passing bays at certain points due to insufficient road breadth; and inadequate sight lines.
"Planning permission will only be granted for a development proposal involving direct access, or in the intensification of the use of an existing access, onto a public road where:
(a) Such access will not prejudice road safety or significantly inconvenience the flow of traffic ."
Among the non-exhaustive list of factors to be reckoned is "the standard of the existing road network together with the speed and volume of traffic using the adjacent public road and any expected increase". The "justification and amplification" paragraph states inter alia:
"The planning system has an important role to play in promoting road safety and ensuring the efficient use of the public road network. New developments will often affect the public road network surrounding it and it is part of the function of planning control to seek to avoid or mitigate adverse impacts. In assessing development proposals the Department will therefore seek to ensure that access arrangements for development proposals are safe and will not unduly interfere with the movement of traffic."
"There is nothing in the Traffic Statement which should have provided DFI Roads with comfort that the traffic impacts of the development would be acceptable. This was not rectified by further submissions following the original quashing of the application and similarly DFI Roads did not request any further information
As the Transport Statement is not fit for purpose, it contravenes Policy AMP6 ."
Mr Black then develops his critique of the inadequate visibility splays and forward sight distance vis-ΰ-vis the proposed access to the subject site. Having reproduced in his affidavits what the Court has already considered (above), namely the contents of his earlier report, Mr Black makes the following omnibus conclusion:
".. the proposal is unsafe, does not comply with current design standards and information necessary to inform the decision making process has not been provided."
".. would have required a forward site distance on the Ballymacrea Road at the proposed site access which simply could not have been achieved."
"The expert statutory consultee with respect to roads was ultimately satisfied after extensive consideration that Policy AMP2 of PPS3 was satisfied and the Respondent's decision to accept its recommendation was entirely reasonable. It certainly was not Wednesbury unreasonable."
The court's attention was also drawn to the extensive, indeed protracted, interaction between the Council and the road authority and the number of consultation exchanges, 17 in total.
(i) The proposed visibility splays are sufficient for "the estimated traffic speeds of 37 mph ", being compatible with the standards enshrined in Development Control Advice Note 15 ("DCAN15").
(ii) The four proposed passing bays and the aforementioned junction improvements ".. are all contained within the public maintained verge and will assist in accommodating any additional traffic generated by this proposal".
(iii) DFI Roads " has confirmed that if two cars towing caravans meet, then they may need to pull up onto the grass verge to pass one another but the passing bays are an acceptable mitigation measure".
(iv) DFI Roads had considered everything submitted on behalf of the developer.
This section of the PPO's report ends in the following omnibus terms:
"DFI Roads has been consulted as the competent authority on road safety and traffic flows and it raises no objection. Therefore, having regard to the proposal as a caravan park, the previous use as a concrete block yard and the existing landfill site, that the proposal improves an existing access, and the current speeds and increase in traffic, it is considered that the access will not prejudice road safety or significantly inconvenience traffic flows
The proposal is therefore consistent with the requirements of Policy AMP2 of PPS3."
"I refer to the most recent document 'Transport Assessment' added to this application. It would seem absurd to assume that the assessment document content is factually correct? The agent has indicated that every section of the form is 'not applicable', which suggests that the proposed application will not generate any traffic movements whatsoever. I would challenge the content of this document and request CCGH Planning to question the accuracy of the information provided. Could you also please arrange an open file appointment for me at your earliest convenience."
By a letter dated 22 December 2016 the case officer concerned acknowledged a variety of objections, including that expressed in the applicant's above-mentioned letter. This was followed by a letter (correctly dated 04 January 2017) from the DFI Roads Divisional Manager which, duly deconstructed, conveys the authority's opinion that the measures proposed "will assist in accommodating" or "will accommodate" the "traffic generated by this proposal".
"Describe below the transport impacts of the development. For example, consideration should be given to the effect on transport infrastructure, possible increased risks of accidents, busier junctions "
The reply was "N/A". The same reply was made to the final request, which invited a description of "What measures will be taken to influence travel to and from the site and within it?"
"Transport NI has considered the report
Transport NI remain satisfied with the proposal and our opinion to recommend approval."
This terminology follows closely the response made to the immediately preceding consultation request.
"Road safety concerns. Difficult to understand stated speed at 37 mph. Previous reports showed 44 and 45 mph 70 metre splay not provided 700 900 traffic movements per day anticipated passing points are not adequate impossible for caravans to pass danger to cyclists [danger to pedestrians] .. visibility splay was 50 metres and should have been 90 metres .. carriageway too narrow where caravans meet transport NI requested a 90 metres visibility splay for dwelling. A caravan waiting here will obstruct this visibility splay using verge for passing will bring muck onto road and make it more dangerous."
Notably one of the road authority's representatives acknowledged, per the minute:
"Cannot insist that a TAF was fully completed. Yet would have been helpful."
The evidence demonstrates that the minutes of this meeting were forwarded to the road authority's Case Officer, who replied on 06 March 2017:
"Transport NI has noted the content of the minute and would advise that our previous consultation responses remain unchanged."
"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 not. 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."
(Re SOS Application [2003] NIJB 252, at [19], emphasis added.]
I consider that, as a matter of principle, this passage must apply equally in the context of substantive hearings. The second question which could, without objection, be considered first is whether the information or factor in question is, as a matter of law, material.
"[31] I consider that the 'Tameside' principle must also have some purchase in the context of executive decisions entailing deprivation of liberty. In a passage familiar to all judicial review practitioners, Lord Diplock stated:
'The question for the Court is did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?'
(Secretary of State for Education and Science v Tameside MBC [1977] AC 104 at 1065B.) Similarly, in R v Secretary of State for the Home Department, Ex parte Venables [1998] AC 407, the Court of Appeal, having emphasised the "essential" requirement that the decision maker be "fully informed of all the material facts and circumstances", at 455G, considered that he " did not adequately inform himself of the full facts and circumstances of the case" (at 456E). And in Naraynsingh v Commissioner of Police [2004] UKPC 20, the Privy Council highlighted, at [21], that:
'Substantially more in the way of investigation was required than was undertaken here.'
[32] The context of this statement was a successful challenge to a police decision revoking the claimant's firearms licence. Interestingly, the Commissioners formulated this requirement through the lens of a procedurally fair decision making process, holding that a fair procedure demanded that further inquiries be made by the decision making agency in circumstances where a series of questions arose and further information was obviously available. The failure to acquit this discrete duty had the consequence that the Doody requirement of giving the subject a fair opportunity to respond to the case against him could not be fulfilled. If ever there is an example of how principles of public law overlap and interlock, this must surely be it.
[33] It may be said that the Tameside principle has been restrictedly construed and applied in practice. It seems uncontroversial to suggest that it is inextricably linked with the entrenched principle of public law that every decision maker take into account all material facts and considerations. In R (Khatun) v Newham LBC [2004] EWCA Civ 55, which involved a challenge to a Council's homelessness policy, Laws LJ formulated a specific question to be addressed in that litigation context, at [33]:
'Even though there is no free-standing right to be heard, does the decision-maker's duty to have regard to relevant considerations nevertheless require him to ascertain and take into account the affected person's views about the subject matter? More pointedly in the present context, does the policy, by denying the applicant the opportunity to view the property and comment, disable the council from the process of accurate decision-makingfrom an appreciation of all the factors relevant to its decision as to the suitability of the offered property?'
Having considered the familiar jurisprudential sources, namely Re Findlay [1985] AC 318, 3333 354 and Creednz v Governor General [1981] 1 NZLR 172, Laws LJ stated, at [35]:
'In my judgment the CREEDNZ Inc case (via the decision in In re Findlay ) does not only support the proposition that where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such.'
His Lordship found support for this doctrinal approach in another familiar passage in the decided cases, that of Neill LJ in R v Kensington and Chelsea LBC, ex parte Bayani [1990] 22 HLR 406, at 415.
[34] This restrictive approach, as I have termed it, finds expression in more recent jurisprudence, in particular the decision of the Divisional Court in R (Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662 (Admin), at [100]. The effect of these two decisions is to erect a relatively high cross bar for litigants who seek to establish that a decision involving the exercise of public law powers is vitiated by a failure on the part of the decision making agency to undertake certain enquiries."
"[35] I consider that there is clear scope for further examination of this doctrinal approach at a higher level, stimulated by at least three juridical considerations. The first is whether the Tameside principle which, after all, emanates from the highest court in the legal system, has been inappropriately emasculated. The second is whether the restrictive approach which I have described is compatible with the entrenched requirement of public law that a decision maker take into account all material facts and considerations. The third is whether this approach is compatible with the calibration of the Wednesbury principle which has been one of the hallmarks of the evolution of public law in recent years. The fourth is whether the broad and intrinsically flexible public law doctrine of procedural irregularity, most frequently (but not invariably) exposed in cases involving complaints of procedural unfairness, is adequately accommodated in the restrictive approach. The common law being nothing if not organic and resourceful it remains to be seen whether the superior courts take up this gauntlet in an appropriate future case."
The Visual Impact and Site Levels Issue
The PPS4 Ground
"Economic growth is considered the Executive's top strategic priority in its first Programme for Government, in order to raise the quality of life for the people of Northern Ireland, through increasing economic opportunities for all, on a socially and environmentally sustainable basis. The Executive considers it essential to create a vibrant economy, to produce employment and wealth for the future, if a cohesive, inclusive and just society is to be achieved
The planning system has a key role to play in achieving a vibrant economy. It seeks to promote sustainable economic development through supportive planning policies, zoning land for development, identifying and protecting development opportunities and integrating employment generation with essential supporting provision in terms of housing and infrastructure
The key aim of this PPS is to facilitate the economic development needs of the Region in ways consistent with protection of the environment and the principles of sustainable development."
[My emphasis.]
The outworkings of this overarching policy strategy are contained in what follows.
"A proposal for the redevelopment of an established economic development use in the countryside for industrial or business purposes (or a sui generis employment use) will be permitted where it is demonstrated that all the following criteria can be met: (a) the scale and nature of the proposal does not harm the rural character or appearance of the local area and there is only a proportionate increase in the site area; (b) there would be environmental benefits as a result of the redevelopment; (c) the redevelopment scheme deals comprehensively with the full extent of the existing site or in the case of partial redevelopment addresses the implications for the remainder of the site; and (d) the overall visual impact of replacement buildings is not significantly greater than that of the buildings to be replaced. The redevelopment of an established storage or distribution site for continuing storage or distribution use will also be permitted subject to the above criteria. However, the redevelopment of an established industrial or business site for storage or distribution purposes will only be permitted in exceptional circumstances. On occasion, proposals may come forward for the alternative use of economic development sites in the countryside. Proposals for the redevelopment of sites for tourism, outdoor sport and recreation or local community facilities will be viewed sympathetically where all the above criteria can be met and where the proposal does not involve land forming all or part of an existing industrial estate."
Under the rubric of "Justification and Amplification", it is stated:
"5.15 The Northern Ireland countryside contains some major developed sites presently or formerly in industrial or business use. Whether they are redundant or in continuing use, the complete or partial redevelopment of these sites may offer the opportunity for environmental improvement 23 and the promotion of job creation without adding to their impact on the amenity of the countryside.
5.16 The design and layout of new development will need to be considered as well as its footprint. The location of the new buildings should be decided having regard to the character of the area, the main features of the landscape and the need to integrate the new development with its surroundings."
"In land use terms, the land is considered to formerly be an industrial use which is considered under PPS4 'economic development'".
I have highlighted the word "formerly" since, via the mechanism of the "Errata" supplement, this was removed. The report continues:
"This land does not form part or all of an industrial estate and the redevelopment for proposals to a use other than for economic development is limited. However, tourism is one of the uses that is considered to be acceptable, with policy PED4 stating that proposals for the redevelopment of economic development sites for tourism will be viewed sympathetically, provided this does not involve an existing industrial estate and the following criteria can be met "
This is followed by a rehearsal of the four criteria enshrined in PED4.
"The existing site is almost entirely covered in hard standing, with several buildings. This proposal would be a more sympathetic use than a concrete block yard. The proposal would soften the large mass of hard standing with grass, landscaping and open space which will result in environmental benefits."
[Emphasis added.]
The author's assessment of compliance with the third of the four specified criteria was couched in positive terms and this is not contentious. As regards the fourth criteria on, the report states:
"The impact of the new buildings is not significantly greater than the existing. The site is reasonably screened which helps aid the visual integration of the proposal. A significant proportion of the site, particularly to the north, next to Ballymacrea Road will be used for touring caravans. This will assist in reducing the visual impact as the use will likely be transitory with limited occupancy off season."
The overarching conclusion was that the development proposal was "consistent with" the policy.
"The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained .
Policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context."
[Emphasis added.]
This doctrinal approach falls within the embrace of a more general principle, namely that the interpretation of every document, in whatever litigation context, is a question of law for the court. See In Re McFarland [2004] UKHL 17 at [25] per Lord Steyn.
"A portion of this site (just over half) has been subject to [the statutory certificate] "
I consider that the discrete section of the report addressing the policy in question falls to be read and evaluated in conjunction with what preceded and followed it. Furthermore, it was not argued, correctly in my view, that Policy PED4 requires that the whole of the subject site be, or have been, devoted to an industrial activity. Accordingly I reject this submission.
"The photograph montage highlights the negative and intrusive aspect that tiered caravans rising some 60 feet in elevation will have on the adjacent Area of Outstanding Natural Beauty, landscape and residence of Craigahulliar."
It is of course a fact that, by virtue of the manner and timing of the presentation of this photographic evidence itself a matter of some controversy - the PC did not have the benefit of the PPO's considered views or response. However, the simple reality is that by dint of this strategy, the applicant placed before the PC something which is now said to be a worse than "doomsday" depiction of (in the wording of the policy) the "overall visual impact" of the proposed development.
The PPS16 Ground
"The location, siting, size, design, layout and landscaping of the holiday park proposal must be based on an overall design concept that respects the surrounding landscape, rural character and site context ."
[My Emphasis.]
Next, the PPO expressed his opinion that the surrounding landscape, rural character and site context had indeed been respected. This was followed by a recitation of the two criteria enshrined in Policy TSM6, the first being that
" the site is located in an area that has the capacity to absorb the holiday park development, without adverse impact on visual amenity and rural character "
The report then states:
"The site is assessed in its local context in this regard along with the Regional and Local Landscape Character Assessments" ("RLCA")."
This was followed by consideration of the RLCA, in the course of which the PPO opined that
" the site is sufficiently far removed from this part of the coastline to have any significant impact or effect on the seascape character."
The PPO then turned to consider the natural and historical interest of "the area", identifying (inter alia) rugged cliffs, sandy bays, the North Coast and the Bush Valley. Consideration was also given to the "Causeway Coast" and the related AONB. The PPO then focused on the site itself, adverting to the issues of tree planting and screening. The report continues:
"Having regard to the previous land use, and the hard industrial nature of this, and both the RCLA and LCA assessments, the landscape at this site has the capacity to absorb the holiday park development, without adverse impact on visual amenity and rural character."
The PPS21 Ground
" to conserve and enhance the environment, whilst improving the quality of life of the rural communities and developing the rural economy [to] develop an attractive and prosperous rural area, based on a balanced and integrated approach to the development of town, village and countryside, in order to sustain a strong and vibrant rural community, contributing to the overall wellbeing of the Region as a whole."
The reader is reminded as in many of these planning policies that developing a sustainable economy is "as to the heart of the Programme for Government", the text continues:
"Planning and other environmental policies must play their part in facilitating economic development but not at the expense of the region's rich natural assets and not at the expense of the natural and built environment."
This is followed by a passage which is familiar in both tone and content in the world of planning law:
"An approach which strikes a balance between the need to protect the environment whilst simultaneously sustaining a strong and vibrant rural community [is required]."
".. must be sited and designed to integrate sympathetically with their surroundings and to meet other planning and environmental considerations including those for drainage, access and road safety."
The first of the two discrete policies invoked on behalf of the applicant Policy CTY13 bears the title "Integration and Design of Buildings in the Countryside". This policy rehearses in somewhat greater detail the integration principle contained in the Policy TT1 excerpt reproduced above. It seems uncontroversial to suggest that there is a close association between integration and visual impact. Themes such as sympathetic blend and incongruous appearance are prominent. Importance is attached to the siting and design of proposed new buildings. The applicant places particular emphasis on the following passage:
"New buildings that would read as sky line development or occupy a top of slope/ridge location or otherwise be a prominent feature in the landscape will be unacceptable."
"The RDS promotes a sustainable approach to the provision of tourism infrastructure. The principle of development proposed must be considered having regard to the Northern Area Plan, the (Strategic Planning Policy Statement) and relevant Planning Policy Statements specified above."
[Emphasis added.]
The "relevant Planning Policy Statements specified above" are PPS4, PPS11, PPS16 and the SPPS (supra): there is no acknowledgment, nor any ensuing consideration, of PPS21.
"[Policies CTY13 and 14 of PPS21] relate to the integration and rural character of new buildings in the countryside. This proposal does not include any new buildings but rather a change in the use of the land to a caravan park. The issues of integration and rural character are addressed in paragraphs 8.22 8.30 of the [PPO's report]. It would have been superfluous to make explicit reference to Policies CTY13 and 14 as the proposal does not include 'new buildings'. That said, the point it addressed in paragraph 9.1 of the [PPO's report]."
The relevant passage in the PPO's report to the Council's PC states:
"As the proposal complies with PPS16, satisfactorily integrates into the countryside and does not affect the rural character, it does not conflict with Policy CTY of PPS21."
"This ground primarily relies upon the earlier ground asserting that the Respondent has erred in its consideration of PPS16. For the reasons set out above that is not correct and as such the Respondent's consideration of PPS21 was not infected by an unlawful consideration of PPS16
PPS21, CTY13 and 14, expressly refer to permission for 'a building'. PPS16 expressly supersedes CTY1 and expressly references the relevance of tourist policies in PPS21. There are only two: CTY4 and CTY11."
The relevant passage in PPS16 is found in the Preamble and states that from its operative date (June 2013)
" the policies of this Statement will supersede . [inter alia] Policy CTY1 of PPS21 as it relates to the tourism policies of PSRNI. Policies in PPS21 offering scope for tourism development in the countryside are not duplicated in PPS16 and will be applied as appropriate to individual proposals."
[My emphasis.]
The passage highlighted above formed the centrepiece of Mr Beattie's oral submissions.
"'Building' includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building
'Erection' in relation to buildings includes extension, alteration and re-election."
There is no statutory definition of "structure".
"69. The term 'building' in s.336(1) TCPA 1990 has a wide definition which includes 'any structure or erection'. This definition has been interpreted by the courts to include structures which would not ordinarily be described as buildings. In Skerritts an Inspector held that the erection of a 40m by 17m by 5m high marquee for an eight-month period was the erection of a building. In Hall Hunter v First Secretary of State [2007] 2 P. & C.R. 5 the erection of polytunnels was also the erection of a building. Both decisions were upheld by the Courts."
While not binding as a matter of precedent, I have no quibble with this formulation. Thus I accept that the court must be alert to avoid an unduly narrow or excessively technical approach to the question of what constitutes a "building".
The PPS11 Ground
" seeks to promote the highest environmental standards in developing proposals for waste management facilities and includes guidance on the issues likely to be considered in the determination of planning applications. In addition, it explains the relationship between the planning system and authorities responsible for the regulation and management of waste."
Policy WM5 is one of the freestanding policies within PPS11. It addresses the discrete topic of "Development in the vicinity of waste management facilities". This short policy begins:
"Proposals involving the development of land in the vicinity of existing or approved waste management facilities and waste water treatment works will only be permitted where all of the following criteria are met:
- It will not prejudice or unduly restrict activities permitted to be carried out within the waste management facility and
- It will not give rise to unacceptable adverse impacts in terms of people, transportation systems or the environment."
The rationale is explained in these terms:
"Waste management facilities carry out an important function in the treatment and disposal of waste and will be approved in appropriate locations. However, such facilities often undertake complex operations that can impact adversely on the environment. While environmental standards are continually improving, nevertheless there may be potential risks at individual sites, for example in relation to odour, wind blown litter or birds
The potential adverse impact of existing or approved facilities upon neighbouring land uses will be a material consideration in the determination of planning applications for the development of that land. Planning control must consider the acceptability of development in proximity to potential sources of pollution. Consideration will therefore need to be given to the sensitivity of development proposed in the vicinity of waste management facilities and WWTWs*, particularly sensitive uses such as residential development or areas of public use."
[* Waste water treatment works]
"The proposed and existing uses will share an existing access onto a private route from the Ballymacrea Road. There will then be a separate access into the proposed caravan site which is segregated by an acoustic barrier in the form of a large earth bund, which would also be planted this .. provides protection from noise impacts/HGVs using the private access route
Policy WM5 requires the consideration of odour. It should be noted that the current landfill site has a management licence issued by NIEA which has a management condition in relation to odour. Furthermore, the landfill site has a 'landfill engine' with the operator sucking gases produced within the landfill to produce power."
This section of the report also adverts to the Council's Environmental Health Department ("EHD") consultation response in favourable terms. The text of this response was:
"EH would have considered the potential for odours but we are aware that the current landfill site would have a management licence issued by NIEA where there would be a management condition in relation to odour. Further the landfill site has a 'landfill engine' where Council are sucking gases produced within the landfill to produce power we have no further comments."
In thus responding this consultee was reaffirming the stance which it had adopted when previously consulted in the context of the process culminating in the first, later quashed, planning permission. Both the PPO's report and the Council's affidavit evidence make clear that reliance was placed upon the last mentioned consultation response.
The EIA Challenge
"The EIA determination sheet identifies likely significant effects of the proposal as including 'traffic impact hydrology and water impacts [and] landscape visual impacts' . as set out in relation to the grounds above, the Council did not have sufficient or adequate information to properly assess the proposal for EIA screening purposes."
The submissions of Mr Shaw highlighted two matters, namely visual impact and highway impact.
" make a determination as to whether a proposed development is or is not EIA development (a 'screening determination')."
"EIA Development" per regulation 2(1) is defined as (inter alia):
"Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location "
It is common case that what was proposed by the developer in this instance was "Schedule 2 development". Accordingly, the test which the Council's officials had to apply was that of " . likely to have significant effects (etc) ." The second starting point is that this test, by its very nature, calls for the formation of an evaluative judgement on the part of the decision maker concerned. Thus the Wednesbury principle is engaged. The contrary was not argued.
"The straightforward position is that under the regulations an EIA is required if a non-exempt development of a Schedule 2 description 'would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location'. It is only significant effects that bring a development within the scope of the EIA regime; minor environmental effects do not do so, though all such effects may fall to be taken into account in the normal way as material considerations (cf. the observations of Sullivan J in Milne e.g. at para 113, in relation to the details to be included in an *401 environmental statement where an EIA is required). It is for the authority to judge whether a development would be likely to have significant effects. The authority must make an informed judgment, on the basis of the information available to it and having regard to any gaps in that information and to any uncertainties that may exist, as to the likelihood of significant environmental effects. The gaps and uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effects. Everything depends on the circumstances of the individual case."
Second, Dyson LJ, delivering the main judgment of the Court, stated at [39]:
"39 I accept that the authority must have sufficient information about the impact of the project to be able to make an informed judgment as to whether it is likely to have a significant effect on the environment. But this does not mean that all uncertainties have to be resolved or that a decision that an EIA is not required can only be made after a detailed and comprehensive assessment has been made of every aspect of the matter. As the judge said, the uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effect. It is possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken. Everything depends on the circumstances of the individual case."
It seems to me that each of the passages reproduced above reinforces my characterisation of the exercise as one of formation of an evaluative judgment.
"It is considered that the environmental effects from the development would be limited to the site and immediate surrounding area. The proposal is not located directly within any environmentally sensitive locations. It adjoins Craigahulliar ASSI. The development is not considered to be unusually complex or have any potentially hazardous environmental effects. The consultation with NIEA, Rivers Agency, TNI (DFI Roads) and Environmental Health has not identified any adverse environmental effects from the proposal which will result in significant environmental harm. Therefore it is considered that the development proposal will not have a significant environmental impact."
In this context, Mr Beattie was keen to highlight that, although not recommended by any of the statutory consultees, the Council, on its own initiative, included among the conditions of planning permission the following [13]:
"A Construction Environmental Management Plan (CEMP) shall be finalised and agreed in writing with the Council at least 8 weeks prior to works commencing. This plan shall set out details of the construction activities; objectives of protection of the ASSI; and all the mitigation and avoidance measures to be employed to ensure protection of the ASSI
Reason: to protect the integrity of the geological features of Craigahulliar ASSI."
It is convenient to insert here the detail that the evidence includes confirmation of due compliance with this condition.
"Article 6
1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.
2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted."
"Whether, or in what circumstances, mitigation measures can be considered when carrying screening for appropriate assessment under Article 6(3) of the Habitats Directive?"
The CJEU explained, at [25], that Article 6 divides measures into three categories, namely conservation measures, preventive measures and compensatory measures. It highlighted that Article 6 makes no mention of the concept of mitigating measures. The Court, at [26], described these as "measures that are intended to avoid or reject the harmful effects of the envisaged project on the site concerned". Next, the Court highlighted the distinction between the preliminary, screening stage and the second, later stage of appropriate assessment: see [27]. It answered the question referred in the following terms, at [40]:
" Article 6(3) of the Habitats Directive must be interpreted as meaning that, in order to determine whether it is necessary to carry out, subsequently, an appropriate assessment of the implications, for a site concerned of a plan or project, 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 that site."
[Emphasis added.]
" had failed to take into account the presence of a water course which runs through the site which discharges into the sea at East Strand and into the Skerries and Causeway SAC."
In the reconsideration exercise giving rise to the impugned grant of planning permission, the Council determined, on 02 March 2016, that the proposal would not be likely to have a significant effect on the features of any protected European habitats site. The Council's affidavit evidence explains further:
"Condition 13 required a . [CEMP]. Whilst the consultees did not require this measure the Respondent decided that it wanted this in place to ensure that the water course and on site works were managed and controlled."
"It is the conclusion of this report that the proposed development is unlikely to have any negative impact on the ecology of the site. With replacement of extensive hard standings with native woodland planting and 'softening' generally of a derelict former industrial site there will be an overall positive impact of the development."
The same consultants prepared a separate Article 6(3) report which focused specifically upon the previous decision making lacuna which had stimulated the High Court's quashing order. The context is neatly explained thus:
"The proposal site is not situated within any Natura 2000 site. However, it is situated upstream of and hence indirectly connected to the Coastal SCI/SACs.
['Site of Community Importance' and 'Special Area of Conservation'.]
"Therefore, should the project give rise to sources of adverse environmental impact, there is the potential for such sources to give rise to indirect impacts on these Natura 2000 sites."
"During any construction works a number of activities may be undertaken on site, some of which may have the potential to give rise to noise and to modify hydrological regimes and affect the water quality in the receiving environment. A review of the project reporting to date and all allied documents (including mitigation proposals) indicates that the following significant construction impacts are not likely to arise:
- Potential for contamination of receiving water bodies from construction run off (from silt and potential contaminates present);
- Potential for contamination of receiving water bodies via mobilisation through the ground water of potential contaminates present.
In consequence, no likely significant effects upon Natura 2000 sites are likely from construction works."
In the immediately succeeding passage the report makes the same assessment in respect of the operation of the site. The words "including mitigation proposals" are highlighted as these form the evidential basis of the contention that there has been a breach of the Sweetman principle. Finally, in the "Conclusions" section the report states:
"This assessment has concluded that no likely significant effects upon Natura 2000 sites are likely to arise should the project succeed. Mitigation proposed in respect of drainage and foul sewerage is suitable for purpose "
[Emphasis added.]
"Having considered the nature, scale, timing, duration and location of the project it is concluded that further assessment is not required because it would not have a likely significant effect on the selection features, conservation objectives or status of any European site."
Second, this assessment is clearly neither conditional upon nor informed by any possible mitigation measure. Furthermore, the discrete passages of the Corvus report forcing on possible indirect impacts on "hydrological regimes" do not elaborate upon or particularise "mitigation proposals". The third element of this discrete equation is that mitigation proposals feature nowhere in the PPO's report to the Council's PC.
The "Eleventh Hour" issue
"The Council erred in law and failed to have proper regard to information submitted a few days before the Planning Committee Meeting and therefore failed to have regard to material considerations
Two days before . the applicant provided further information to local councillors. The information included aerial photographs of motor homes and caravans trying to pass each other on the access road to the site, as well as photomontages depicting views of the site with and without the proposed development
However, it seems clear from comments of a Planning Committee member (who ultimately withdrew himself from the decision making process) reported in the local press that not all members of the Planning Committee received and considered this relevant information
Accordingly, the Council failed to have regard to all material considerations before taking the impugned decision."
"[The Councillor] says he withdrew from today's planning meeting due to sustained lobbying which he felt compromised the integrity of the planning process. [He stated] '.. additional information from applicants or objectors is always better going to planning officers with a request to disseminate to members of the planning committee. That avenue ensures rigorous impartiality and that all councillors receive the same information information relating to planning matters was passed to some members in some cases hand delivered, while others did not catch site [sic] of same.'"
Omnibus Conclusion
