In Re Nicholson's Application for Judicial Review [2003] NIQB 30 a prisoner sought to challenge a penalty of cellular confinement. He was released on licence before the penalty was served. The court was satisfied that the issues arising in the judicial review application were academic. In deciding whether the case should be allowed to proceed the court considered the matter in accordance with the principles outlined in Salem . The court did not permit the matter to proceed. It was clearly influenced by the fact that the case would require a detailed examination of disputed facts and it was felt that the case was not one which should proceed because it was highly fact specific. It also came to the view that the resolution of the issues that arose would be unlikely to provide guidance to the Prison Service in future cases. Even if it was felt that such cases were likely to arise in the future the court came to the view that it was by no means probable that authoritative guidance could be derived from the present case.
How should these principles be applied to the facts of this case?
It seems to me from the above that the principles are fairly clear.
At the outset it is important to understand that this is not a dispute about whether in law permitted development rights are provided for certain types of development. The issue is whether or not in the specific circumstances of this case the temporary development carried out by InfraStrata at the site came within the permitted development regime and whether it ought to have been the subject of planning enforcement action.
It seems to me that this challenge is heavily fact specific. When one examines the affidavit evidence in the case, together with the Order 53 statement of facts and grounds, the resolution of the dispute will involve a consideration of factual matters which are in dispute.
The starting point for the applicant is that the development is not permitted because it involves the "construction, formation, laying out or alteration" of a means of access on to a classified road. The court has been provided with a series of plans and photographs which purport to demonstrate that in fact the work carried out by the notice party involve such an alteration. Thus there was a dispute about whether or not the works constituted an alteration of the site access, there was a dispute about the height of security fencing, a dispute about the extent of consent to the removal or lopping of trees, the placement of security lighting, the erection of CCTV apparatus and the nature of drilling fluids being used.
All of these matters were in dispute.
In response to the complaints made by the applicant the respondent opened a number of "enforcement cases" and inspected the site on a number of occasions having considered the evidence submitted on behalf of the applicant.
A flavour of this dispute is evident from paragraphs 59 to 65 of the first affidavit sworn by Mr Paul Duffy who is the Head of Planning at Mid and East Antrim Borough Council. I propose to set this out in full:
The affidavit continues in similar vein in respect of allegations concerning importation of stone, unauthorised portacabin, unauthorised lopping of branches and trees, unauthorised fencing, CCTV, omission of sand layer and security lights.
I have set out paragraphs 59 to 65 in full because at the hearing the applicant placed considerable emphasis on the respondent's reliance on Parts 5 and 10 of the Schedule to support the submission that this did concern important issues of law in how the Council exercises its planning powers. Mr Jones strongly argued on behalf of the applicant that the Council's reliance on the exceptions permitted by Article 3(5) of the GPDO as permitted by Parts 5 and 10 of the Schedule raises a legal issue as to how the respondents seek to defend the matter. This did not form part of the Order 53 statement but I accept that the applicant is entitled to raise these issues since they have been relied on by the respondent.
However I have come to the firm conclusion that any resolution of the issue will involve detailed consideration of highly specific factual matters. The dispute may fairly be characterised as one of mixed law and fact. The key issue however would be the determination of the factual dispute pertaining to "on the ground" activities at the site, many of which are disputed.
Returning to Salem this is not a case in which a discrete point of statutory construction arises which does not involve detailed consideration of facts.
As to the public importance of the issues raised it is significant that the Department for Infrastructure has consulted on proposals to remove permitted development rights for mineral exploration development which would include the type of development under challenge in this case in the future. The result of these proposals, if accepted, would be that future exploration of the type involved in this case would require the submission of a full planning application. This consultation is doubtless a response to the controversy surrounding developments of the type under challenge in this case which is the subject matter of considerable protest and debate.
In my view a determination in this case will not affect the principle of whether or not such permitted development should be available to such development. The outcome of the consultation is not yet published and the timescale for any final decision remains unknown. The applicant argues that the outcome of these proceedings "may influence" the outcome of the consultation. Given the fact specific nature of this application I am not persuaded that this is so. Indeed if the public issue concerns what approach should be taken to temporary mineral exploration in planning terms in the future then the consultation process is the best forum for consideration of that issue and not the highly specific fact enquiry which will be required to determine this case.
The applicant also argues that this matter should be heard because of three ongoing criminal cases with regard to alleged incidents involving protestors at the Woodburn site.
The applicant exhibits correspondence from the solicitors acting for these persons. The height of the correspondence is a letter from solicitors acting for two of the protestors dated 30 March 2017 in the following terms:
The applicant submits that it is in the interests of the good administration of justice that the public law issues arising in this matter should be decided in this court rather than as a collateral issue in the criminal courts.
I am not persuaded that this issue is sufficient to persuade the court to hear this matter.
None of the defendants are notice parties to this application nor have they sought to intervene. They have not sought to challenge the legality of the actions of either the notice party or the respondent by way of judicial review.
The court does not know the detail of the offences with which they are charged. I make the obvious observation that members of the public are entitled to engage in lawful protest and can only be subject to criminal sanctions if they actually act unlawfully for example by way of assault or criminal damage. I simply do not have the material before me which would justify a conclusion that this matter ought to be heard for the purposes of determining any issue in relation to the criminal proceedings to which I have been referred. Whether or not the charges should proceed is a matter for the PPS and whether, if they do proceed, they are made out is a matter for the relevant Magistrates' Court. I simply do not know how a finding that the respondent may have acted unlawfully would provide a defence for unidentified charges. I have no idea what is alleged against the defendants as part of the protest and how the respondent's decision was relevant to that conduct. I simply do not know whether or not the prosecution has been premised on the validity of any alleged decision by the respondent.
Returning again to Salem is this a situation "where a large number of similar cases exist or are anticipated"?
There is no real evidence before me on this point. So far as the courts are concerned certainly there are no large number of cases before it. As to whether such a number can be anticipated I am told by Mr Orbinson from the Bar that this is the only case of its type which has resulted in a legal challenge. The only other case involving a permitted development concerned a situation where the Minister actually removed such a right. As far as the courts are concerned therefore any legal challenges are extremely rare. Mr Jones points out that there is no actual evidence on this point. He refers me to the responses to the public consultation which suggests that exploration for non-energy minerals is on a much smaller scale than that carried out for petroleum exploration which might suggest that it is on a large scale. However there is nothing in the consultation documentation that assists the court in coming to a conclusion on the extent or number of any such developments. The significance of the consultation is a recognition of the public concern about the potential impacts of petroleum exploration and whether they should have permitted development rights. Having considered all the material before me I am not persuaded that there is a large number of similar cases either in existence or which are anticipated which will require the court to resolve the issues in the near future. In this regard I emphasise that the issue that requires resolution in this case is a highly fact specific one and will not decide the bigger public issue as to whether or not exploration of this type should benefit from permitted development. That issue is not before this court and in any event the proper forum it seems to me for that issue is the public consultation exercise currently under way.
Conclusion
The court therefore concludes:
(a) That the proceedings are effectively academic as regards the parties inter se.
(b) That this is not a case in which the court should exercise its discretion to hear the application because of a good reason in the public interest for doing so.
Accordingly the application for judicial review is dismissed.