NI High Court: Belfast developer pays twice after planning permission quashed
The High Court granted an order of certiorari to quash planning permission for a petrol station in Belfast, ordering the applicant to pay one third of the legal costs on top of the £325,000 building costs incurred to date.
The court was not swayed by the arguments of the notice party, who “hastily” built on a site whose planning permission was ultimately challenged.
The judge noted that “the extent of the works undertaken, whilst relevant, is not the primary consideration; and a developer plainly cannot be permitted to effectively render toothless the supervisory jurisdiction of the court simply by means of proceeding at pace with development works”.
The applicants, two companies with an interest in Beckett’s Bar and Restaurant on the Stewartstown Road, Belfast, challenged a grant for planning permission by Belfast City Council.
The applicants contended that the council did not consider road access and parking congestion when making their decision.
On 26 August 2021, the council accepted that its decision was flawed and consented to it being quashed.
The Hoey Family Pension Fund (the notice party in these proceedings) did not consent to the planning permission being quashed and argued that 50 per cent of the works on site had already been completed, on foot of the planning permission.
A remedies hearing was convened on 8 October 2021. There were three issues to be addressed:
- whether the impugned permission should be quashed;
- whether the notice party should be restrained by way of injunction from undertaking further work at the site pending a redetermination of the planning application by the Council (or give an undertaking to this effect); and
- the issue of costs.
The planning permission
Planning permission was granted for the reconstruction of a petrol station and an ancillary retail unit, which had been damaged by fire, on a site adjoined to the applicants’ bar.
There have been issues with parking at this location, and the applicants alleged that due to the creeping intensification of the notice party’s site, there had been an ongoing issue with customers at the temporary petrol station making use of the car park of their bar and restaurant without permission.
Based on the applicants’ case, the total planned development on the site would require 47 car parking spaces (excluding spaces at the petrol pumps); whereas there were 17 car parking spaces prior to the fire and only 17 proposed with the new development.
The applicants further said that this had a detrimental effect on their business, as their customers now had no car parking spaces left. The notice party contended that the development would amount only to a “modest increase” in floorspace in order to reflect modern retail requirements.
However, the applicants’ key objection was that the proposals were not a ‘like-for-like’ replacement, as had been suggested by the Department for Infrastructure Roads Section at one point, and were instead a 40 per cent floorspace increase which would have a knock-on impact on parking.
The notice party claimed that they entered into a contract in the region of £960,000 for demolition of the remaining fire damaged structures. A few days later, work implementing the planning permission began, and evidence before the court was that the notice party had incurred costs of approximately £325,000 to date. They did not become aware of any challenge to their planning permission decision until 11 weeks into the build.
Mr Hoey made the “common sense and forceful point” that, during this period, the works which had been commenced on site were visible from the road and that, therefore, the applicants could not have been unaware of their commencement.
Much of the case discussion centred around the extent of the work having been completed. Mr Hoey claimed that more than 60 per cent of the work was completed by the time of the hearing, while the applicants alleged this was closer to 30 per cent.
The applicants relied on a surveyor’s report for this lower figure, however, the court was slow to accept this determination, finding that it contained an “obviously rudimentary assessment”.
The applicants also sought an injunction preventing further works on the site, pending the Council’s redetermination of the planning application. However, the court did not adjudicate on this point, as the notice party agreed to give an undertaking in respect of this, which involved an agreement to only complete the “shell construction phase” and nothing beyond that, by November 12 2021.
The court rejected an argument based around delay in issuing proceedings, as proceedings were brought within the 3 month window, albeit on the last day possible. Rather, the court accepted that “the notice party in this case proceeded with undue, or at least unwise, haste”. The notice party would, or ought to, have been aware that there was a three-month window within which proceedings could be commenced.
No costs were awarded against the council. The applicants sought the costs of the proceedings against the notice party. That is because, they submitted, the many hearings arose because, and solely because, the notice party was unwilling to allow the case to be settled following the quashing of the planning permission.
Notice parties typically enjoy ‘cost neutral’ proceedings, but the judge noted that an exception to this applies where the notice party has unreasonably added to the costs of the proceedings in a significant way, or is the only party arguing for a particular outcome, as to which they are unsuccessful.
However, the court did weigh this against the applicants’ delay in initiating proceedings, which did not comply with the High Court’s Pre-Action Protocol in relation to judicial review: “Any failure to comply properly with the PAP may have (inter alia) adverse costs implications for the default party or its representatives.”
Had the applicants acted sooner, less work and fewer costs may have accrued. The court noted that a delay had occurred, despite the fact that the applicants could see the works in plain view. Further, the judge noted, earlier proceedings would also have robbed the notice party of their main defence here; that work had been carried out before they were notified.
Taking all of these matters into account, the judge determined that the applicants should be entitled to some element of their costs from the notice party, the appropriate amount being one-third of their costs for the proceedings.