The planning tribunal rejected Moviment Graffitti’s request to be admitted to a case over the construction of a petrol station in a field by making a selective reading of the law. The tribunal’s decision was then overturned by the Court of Appeal.
The case draws further attention to the tribunal’s poor track record, which has been the subject of special reportage on this website.
The planning case itself involves a permit granted by the Planning Authority for the construction of a petrol station as well as car wash, retail outlet, parking area, and office. The site is a large field on the outskirts of Burmarrad.
The planning tribunal hears legal challenges to decisions taken by the Planning Authority as well as the Environment and Resources Authority.
Moviment Graffitti requested to admitted to a case appealing against the Planning Authority’s approval of the petrol station. (One of the substantive arguments against the permit eventually put forward is that there is already another larger petrol station along the same stretch of road in Burmarrad.)
In its request to be admitted to the lawsuit, the NGO invoked the legal provision that holds that anyone can appeal against a decision by the Planning Authority to approve a development application if it is a “development or an installation which is subject to an environmental impact assessment (EIA) or an integrated pollution prevention and control (IPPC) permit.” A petrol station falls under these categories.
Yet the tribunal rejected the NGO’s request in a decision that made convoluted – and ultimately incoherent – legal argumentation. The main flaw of the decision lay in a selective reading of the law: the tribunal said that the wording “access to a review procedure” meant that anyone could have “access to the proceedings, including the sittings in front of this tribunal and all submissions” in the case. It added that “it clearly emerges that this right is limited to [cases] in which proceedings of appeal have commenced but it does not extend to the right to appeal or that one can be admitted to an appeal.”
Such interpretation flies in the face of the import (or meaning) of the legal provision in its entirety, something that was confirmed in the Court of Appeal judgement last March that overturned the tribunal’s decision. The entire sentence reads that “all persons having sufficient interest shall have access to a review procedure before the Tribunal to challenge the substantive or procedural legality of any decision, act or omission…”
The words “to challenge the substantive or procedural legality of any decision” makes the meaning unequivocal. It provides “persons having sufficient interest” the power to challenge planning permits, not only to have access to any proceedings initiated by any other party.
Moviment Graffitti has since been admitted to the case after the Court of Appeal overturned the tribunal’s decision. The case is ongoing.
The case draws further attention to the planning tribunal’s track record. The tribunal’s decisions are regularly overturned or renounced by the Court of Appeal.
Most people who mount legal challenges against development permits in front of the tribunal tend to come out feeling aggrieved by the decision. Yet most do not go on to appeal against the tribunal’s decision in the Court of Appeal, where they have a greater chance of prevailing, instead giving up after typically spending many thousands in legal costs.
In an extensive legal analysis of the law that regulates the tribunal and patterns of its decision-making on key points – particularly suspension of commencement of works during the course of proceedings – this website found that the tribunal falls way short of constitutional standards. The analysis has been published as part of the Justice on Trial series.
