About this case:

• Citation:
  [2021] NIQB 104
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Michael Humphreys

The court was unsympathetic to the applicant, Martin Tracey, who had been delayed while trying to secure legal aid, and had resorted to judicial review when there were other options available to him, such as an open forum via the Planning Appeals Commission (PAC).

Background

In November 2017, the proposed notice party, Dalradian Gold Limited, submitted an application for planning permission in relation to the proposed development. Over 40,000 representations have been made in relation to the application. Given that the application is one for major development of regional significance, the decision maker is the Department for Infrastructure, the proposed respondent.

On 29 June 2020, the minister for infrastructure announced that a public inquiry would be held which would consider the evidence and views of all stakeholders and the community and which would “robustly scrutinise the information provided”.

At the time of the decision, the applicant had already lodged five separate objections to the application for planning permission.

Application for leave

The application for leave to apply for judicial review sought to challenge two decisions made by the proposed respondent:

1. The failure to put in place a mechanism to investigate the risk to the applicant’s life, health and family life posed by the Dalradian proposal; and
2. The appointment of Golder Associates UK Limited by the Department to review Dalradian’s waste management plan, as being a conflict of interest.

The proposed respondent raised the issue of delay, as Golder was instructed on 12 May 2020 and judicial review proceedings were not initiated until 26 October 2020, meaning the delay in question was a period of over 9 weeks past the deadline.

The applicant became aware of the instruction of Golder and the alleged conflict of interest when contacted by a newspaper, shortly before an article appeared in the Irish News on 9 June 2020.

The applicant stated, “I was immediately concerned and confirmed I would seek legal advice” and that he instructed his solicitors to initiate pre action correspondence.

However, the court found that there was no explanation given as to the time lapse between 28 July and 7 September, during which the relevant time limit expired.

Further, the court cautioned against the expectation that applications for public funding alone would give rise to a ‘good reason’ for delay, quoting Re Fionda (A Minor) [2018] NIQB 51:

Bias

In support of his claim that the appointment of Golder could be impeached on the ground of apparent bias, the applicant relied on Porter v Magill [2001] UKHL 67 and Re Duffy [2008] UKHL 4. Porter involved certification by a local government auditor of sums due to Westminster City Council by certain councillors and officers who had been found guilty of wilful misconduct. Lord Hope reviewed the authorities on apparent bias and concluded:

In Re Duffy, the court quashed appointments to the Commission on the basis that the proposed appointees could appear to be biased in their decision-making role.

The court here noted that each of these cases concerned the apparent bias of a decision maker. Mr Justice Michael Humphreys found that it would be “quite a different proposition to say that the appointment of an expert witness to review a waste management plan, and provide evidence to a public inquiry, could be quashed on the grounds of perceived bias”.

No authority was cited to the court which suggested that a judicial review court (exercising supervisory jurisdiction) should intervene in the appointment of an expert witness by a public body. The proposed respondent had considered the previous connections between Golder and Dalradian and was content that there was no conflict of interest.

The court also emphasised that “if there is an issue in relation to the independence of Golder, the correct forum to explore that is the PAC inquiry”.

Conclusion

The applicant’s case attempted to impeach the decision of the proposed respondent to instruct Golder, based on Wednesbury unreasonableness principles. The evidence adduced by the applicant demonstrated only antecedent dealings between Golder and the proposed notice party, and it was ‘simply unarguable’ to contend that these antecedents meant that no reasonable government department could have instructed Golder to review the applicant’s waste management plan.

Finally, the court noted that judicial review is a remedy of last resort. The applicant can seek to undermine the evidence of Golder at a public inquiry by arguing that it ought not to be admitted or that little weight should be attached to it. This would be the appropriate forum to make such an argument, not through judicial review proceedings.