Andrew McKeown BL

About this case:

• Court:
  Court of Appeal
• Judge:
  Sir Declan Morgan

Coulters Hill Residents Ltd (CHR) had applied for leave to apply for judicial review of the decision of the Planning Appeals Commission (PAC) to allow an appeal against an enforcement notice issued by Ards and North Down Borough Council about mixed-use processing and quarrying on the site of Fishquarter Quarry, Kircubbin, Co Down.

Background

In April 2018, the Council issued an enforcement notice under the Planning Act (Northern Ireland) 2011 s.133 in respect of lands at Fishquarter Quarry. An appeal against the enforcement notice was lodged.

In 1967, planning permission was granted for use of land at Fishquarter for quarrying purposes. In 1981, a planning officer concluded that the quarry was inactive. In June 2016, complaints were made to the Council about quarrying at the site. Inspection confirmed that excavation and breaking up of rock for onward shipment from the site for sale were taking place. On becoming aware of the 1967 permission, the Council considered that it could not be regarded as abandoned, having regard to the decision of the House of Lords in Pioneer Aggregates Ltd v Secretary of State for the Environment [1985] AC 132.

The Council’s case before the PAC was that the 1967 permission was for quarrying, meaning only the winning and working of minerals. To “win” a mineral is to make it available to be removed from the land and to “work” a mineral is, initially, to remove it from its position in the land (English Clays Lovering Pochin v Plymouth Corporation [1974] 2 All ER 239). The Council submitted that the treatment or processing of minerals fell outside the scope of winning and working, and hence of quarrying.

The developer, who was experienced in quarrying, explained that processing was standard practice in other quarries. The Commissioner concluded that the extracting and processing were interdependent and functionally integrated activities. The developer’s appeal succeeded in respect of processing.

CHR sought leave to issue judicial review proceedings in respect of that decision.

Court of Appeal

CHR is a limited company with its stated object being to challenge excess development within the Council area. CHR sought to be represented in these proceedings by Gordon Duff, one of its eight shareholders/directors, described as “a prolific personal litigant”, being registered director of a number of companies, all of which have the words “Rural Integrity” in the registered names, which have instituted more than 30 sets of proceedings challenging planning decisions.

The Court of Appeal examined Mr Duff’s entitlement to act on behalf of a company in Rural Integrity (Lisburn 01) Ltd’s Application [2020] NICA 12. It noted that it was clear that Mr Duff examined the way in which he could conduct his affairs in relation to environmental litigation and determined that he should do so by way of this legal personality, rather than as a natural person which would expose him to the personal risk of costs.

The judges said that the use of the company format has the advantage that the liability of the members of the company is limited by the terms of the articles of association and the degree of investment that each of the members has made. One disadvantage is the constraint on representation. The Rules of the Court of Judicature Ord.5 r.6 provides that a body corporate may not begin or carry on any proceedings otherwise than by a solicitor. An exception is made where an employee may represent the company if authorised to begin and carry on the proceedings on its behalf and where the court grants leave. The company was not in a position to pay the £10,000 security for costs ordered by the trial judge in that case. The Court offered Mr Duff the opportunity to conduct the litigation on his own behalf. Mr Duff declined that opportunity, and the appeal was dismissed.

In the present matter, Mr Duff was again offered this, which he declined. He indicated, however, that CHR would be in a position to provide the sum of £10,000 by way of security for costs. Having regard to the fact that Mr Duff had acted for the company in the court below, that he was authorised to do so, and that CHR was in a position to provide security for costs (at the maximum level that would have been payable in an Aarhus case), the Court gave leave for Mr Duff to represent CHR.

The trial judge had found that the Commissioner’s conclusion was an example of the presumptive expertise of the PAC which the court should properly recognise. There was no material upon which the court could properly question much less reject the approach of the appointed Commissioner.

The appellate court, comprised of the Lord Chief Justice Sir Declan Morgan, Mr Justice Paul Maguire and Mr Justice Adrian Colton, said that if Mr Duff wished to challenge the validity of the 1967 planning permission, he should do so directly. He may join the Council if he contends that they failed to act because they believed in error that there was a valid planning permission for the use of the land for quarrying purposes. Such an application would require proper grounds to be lodged and appropriate notification to those affected. CHR is not entitled to conduct that challenge before the PAC in respect of this enforcement notice.

The judges found the CHR’s complaint was in reality directed at the Council because of its failure to issue enforcement proceedings against the developer for the use of the land for quarrying purposes. That is not a matter for determination by the PAC.

Conclusion

The Court of Appeal refused the renewed application to issue judicial review proceedings.