About this case:

• Judgment:
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The application was in relation to a decision of the Department of the Environment refusing to issue a Stop Notice to the owners of the bed of Lough Neagh and several businesses involved in sand extraction from Lough Neagh.

Excavation from Lough Neagh

Up to 1.5 million tons of sand is extracted from Lough Neagh each year, a practice which has been proceeding for 80 years without planning permission.

The lough is a Special Protection Area, a Ramsar site and an Area of Special Scientific Interest. Any application for planning permission would require an environment impact assessment and a habitats assessment.

In September 2014, the Department notified the Shaftesbury Estate of Lough Neagh Limited as owners of the bed of Lough Neagh, and other sand traders that the dredging of sand was unauthorised and that the activity should cease.

Operations did not cease, and in May 2015 the Department issued an Enforcement Notice, an Enforcement Report and an EA Determination Sheet to the Shaftesbury Estate and the sand traders. This required the cessation of the working of minerals on 30 June 2015, unless an appeal was lodged beforehand.

The Enforcement Report concluded that the operations were unauthorised and were unacceptable and that, with the presence of doubt over the potential impacts of the operations on a European site and on the environment, the operations were not considered compliant with the EIA Directive and the Habitats Directive.

The Decision not to issue a Stop Notice

Stop Notices may be issued under section 151 of the Planning Act (Northern Ireland) 2011 where the Department “considered it expedient that any relevant activity should cease before the expiry of the period for compliance with an Enforcement Notice”.

In November 2015, the minister’s decision referred to:

In relation to the recommendation for a Stop Notice it was stated that it should not be issued because it would not be a proportionate response without evidence that the dredging, which has been going on since long before the site’s designations, had any impact on the environmental features of the lough.

As such, the Minister stated that it would not be in the wider public interest to risk such potential economic harm prior to some understanding of the environmental situation.

Nevertheless, the Minister stated that he would “review the situation as soon as the relevant information is available”.

In the High Court, Justice Maguire concluded that the response of the Department in not issuing a Stop Notice did not involve a breach of the Directives or Regulations and was within the range of lawful responses available and that no grounds for Judicial Review had been established.

Court of Appeal

The grounds of appeal were:

Delivering the judgment of the three-judge Court, Lord Justice Weatherup found that the Minister adopted the wrong approach in stating that there was “no evidence that the dredging … is having any impact on the environmental features of the lough”.

In fact, it was acknowledged by the Department that these operations were likely to have a significant effect on the environment – but that it was not known what that effect would be.

As such, the precautionary principle applied, operating on the basis that there should be no planning permission until established that there is no unacceptable impact on the environment.

The test for the issue of a Stop Notice as stated in the Planning Act (Northern Ireland) 2011 was whether it is considered “expedient” that operations should cease; and in R (Ardagh Glass Ltd) v Chester City Council it was stated at first instance that the test of ‘expediency’ suggested the balancing of the advantages and disadvantages of a course of action.

The Minister balanced the absence of evidence of environmental impact against the potential economic harm occasioned by the cessation of operations.

The Court of Appeal did not accept that the economic factors should have been irrelevant to the decision whether to issue a Stop Notice, as this was within the Minister’s discretion.

That being said, given the repeated finding that the operations are likely to have significant impact on the environment; the decision maker could not simply put in the balance the absence of evidence of harm. Such an approach to require evidence of harm would be the negation of the precautionary principle.

In all the circumstances, the Court of Appeal held that the decision should be quashed; and the matter was referred back to the Department so that a determination may be made as soon as possible on whether or not to issue a Stop Notice.