Why Drumahoe residential development was refused planning permission

The Reserved Matters application was heard following an outline approval by the Planning Appeals Commission.

The application for the 7.68-hectare site was deferred from the Planning Committee meeting on December 4, 2019, for officers to consider late representation made to DFI (department for Infrastructure) regarding what was said to be unauthorised EIA (Environmental Impact Assessment) development on the site.

In November 2017 Council re-determined the application under EIA Regulations and determined that an Environmental Statement was required as unauthorised works on-site had taken place.

This included, it was said, the breaking up and removal of hard surface areas, infilling and land raising and council considered that the proposed development could have likely significant effects on the environment and on the River Faughan and tributaries.

An agent for the applicant however said the works had to be carried out for safety reasons to secure the site after a personal injury claim and they were instructed to do so by insurers.

Senior Planning Officer Sarah Barrett Senior Planning Officer told Members that ‘Officers are concerned that due to the lack of information in the Environmental Statement regarding the flood event in 2017, that it has not been demonstrated that there was no pollution impact on the River Faughan.’

Four reasons for refusal were given by the officer and councillors were told that the ‘proposal has failed on all three legal principles tests and council could not lawfully grant permission for this unauthorised EIA Development.’

Dean Blackwood, a retired chartered town planner and Chair and Director of the River Faughan Anglers Ltd, spoke on behalf of the objectors.

He said: “River Faughan Anglers (RFA) welcomes this council’s late acknowledgement that fundamental matters of environmental law were not addressed when this application was first recommended for approval on December 4, 2019. This failure put Members in a position that, if they had approved this application back then, they would have acted unlawfully.”

Mr Blackwood added that the intervention by the River Faughan Anglers ‘was to prevent Members from making an unlawful decision’.

Mr Blackwood informed Members that the ‘RFA raised the matter of unauthorised EIA development with officials on at least five occasions during the processing of this case’.

Concluding, Mr Blackwood said: “The risks for this council, the public purse and the environment remain high if Members need to rely on the public to highlight fundamental failures of planning and law.”

Chris Bryson spoke to the Committee on behalf of the applicant, explaining that work on the site had been undertaken for safety reasons.

“Despite the best efforts of the applicant to secure the site, antisocial elements accessed the site”, he said. 

He added that there was a personal injury claim against the applicant. 

“Following the settlement of that claim, the applicant’s insurers required that the site be made safe hence the proprietary works referred to in draft refusals one, two and three.”

He added: “The developer has not gained any advantage, financial or otherwise from carrying out the foundation removal and site proprietary works. The principle of development on site has already been approved and the works in question would have been needed in any event. The issue is one of timing due to site safety and the claim against the site owner.”

DUP Alderman Derek Hussey asked the applicant’s agent: “Safety seems to be an issue here, why was it not achieved by a proper boundary barrier?”

Mr Ryan explained: “I’ve been advised by the applicant they have had to replace the fence and indeed the locks a number of times on the site as they have been broken off over the years so it has not been possible to keep it trespasser free since this application has been submitted over seven years ago.”

Independent Councillor Paul Gallagher raised his concerns about the legalities of the case.

“There was an agreement from the outset that the legal principles haven’t been met, there are principles in case law,” he said. “If we were to go forward today and approve this, are we, as a committee, in breach of case law?”

Derry City and Strabane Council solicitor Philip Kingston explained: “You have the officer’s views in relation to the matter and the legal principles that are set out in relation to that but the decision-makers in respect of that are still the committee and therefore it is the committee who must make its final decision in relation to this and in relation to the interpretation of the law.

“The officer’s view in relation to this matter is that the legal tests are not met and if Members are of the same view in relation to that then they accept the officer’s recommendation in relation to the matter but formally it must be the Members who ultimately make that decision. 

“If they are going to go against the officer’s recommendation in relation to the matter then they need to set out how they believe the legal tests, in this case, are met and the officer’s view in relation to that are wrong.”

Alderman McClintock spoke about how the site had lay derelict for up to 20 years adding: “From a local point of view I want to see it developed but developed in a safe way. The worry that goes through my head is this a site that could ever be developed if it’s all based on the River Faughan?”

Committee Chair Philip McKinney counselled Members: “We must consider the legal concerns raised by Cllr Gallagher and the advice we received from the legal team before we would make a decision.”

Proposing to accept the officer’s recommendation to refuse planning approval, Councillor Gallagher said: “It’s clear that a lot of the work was unauthorised, I know we have heard some mitigation for that but it was unauthorised. Therefore, we are in breach of the law in granting permission.”

Seconding the proposal Sinn Féin Councillor Christopher Jackson added: “This was a difficult decision for the Committee. I think we all acknowledge the need for housing right across our city and district. 

“The principle for housing has been established on this site but what hasn’t been demonstrated enough is the protections that have been offered for a specially designated site, namely the River Faughan. 

“The applicant alluded to it and the application itself meets a lot of policy tests so in a normal site this would be a very good application and a very welcome application. However, the unique thing about this application is that it is running adjacent to the River Faughan and only a few weeks ago we as a council signed up to the Rights of Nature and that should have a bearing on the decisions we are taking as a council.

“I haven’t received enough information to give the guarantees that adequate protection is being given to the River Faughan and on that basis, I am happy to second the proposal.”

The committee voted in favour of the officer’s recommendation to refuse planning permission with 10 for, 2 against and 1 abstention.