BMAP Appeal court ruling: back to the drawing board
The Belfast Metropolitan Area Plan (BMAP), whose many policies are to provide guidance in the formulation and determination of planning applications in respect of the greater Belfast Area was first published nearly 13 years ago. BMAP has been subjected to a further set back following a recent Court of Appeal decision.
The nature and extent of the planning policies to be applied to Sprucefield Regional Shopping Centre (“Sprucefield”), have been central to several legal challenges to BMAP. Sprucefield is one of only three Regional Shopping Centres in Northern Ireland, the others being Belfast and Londonderry with Sprucefield being the only one of those which is “out of town”.
The Planning Appeals Commission raised doubts not only as to certain proposed terms including minimum unit sizes and “bulky goods” restrictions but also, and more fundamentally, as to whether it was appropriate to include a policy for what is in policy terms a regional facility within a development plan for a portion of the region just because Sprucefield falls within the geographical limits of BMAP. This concern was raised in a report to the Department of the Environment in respect of BMAP following lengthy public hearings on the document.
The then Department of the Environment (DoE) Minister announced on 11 January 2013 that he was ready to have BMAP formally adopted and that it would include the bulky goods restriction on future retail developments at Sprucefield. The then Department of Enterprise Trade and Investment Minister did not agree, presumably on the basis that such a restriction would affect the number and nature of potential retail uses and occupiers at Sprucefield, for example, the provision of a John Lewis store.
The First Minister and Deputy First Minister then became involved and jointly determined that the draft BMAP Retail Strategy should be considered by the Executive. The matter went backwards and forwards inconclusively for months on end, until, despite no agreement having been reached as to the exclusion or inclusion of the bulky goods restriction, on 29 August 2014 the DoE Minister unilaterally decided to and directed his Department to have the BMAP formally adopted which was purportedly done by Order of 3 September 2014. Thereafter he informed the Executive that he had taken this step and refused in subsequent correspondence to alter his position.
What followed was a lengthy Judicial Review challenge in the High Court. Treacy J gave judgment in favour of the DETI Minister, holding for the several detailed reasons set out by him that the DoE Minister had acted ultra vires in purporting to have BMAP adopted. The judge then indicated that he would hear the parties as to the appropriate relief and the matter was adjourned for that purpose.
It was the outcome of that remedies hearing that was the subject of the Court of Appeal Hearing.
Consent was later reached by newly created Departments on the way forward in the litigation.
Simon Hamilton, the DUP Economy Minister before power-sharing collapsed, and Sinn Féin Minister for Infrastructure (who by then had taken over DoE Planning Functions), Chris Hazzard, agreed on a proposal to have BMAP adopted without the bulky goods restriction.
Their lawyers were granted an order last November declaring that the rest of BMAP could be implemented. Belfast City Council challenged the resolution reached, claiming it went beyond determining the validity of Mr Durkan’s original unilateral action.
The Court of Appeal heard it had been constitutionally wrong to have a judge make the order amending BMAP. Instead of providing retrospective validation, the Executive decided to vary the terms of a still draft plan. It then engaged the High Court in a process to preserve the agreed provisions as though they had been validly adopted, while also asking to have the disputed bulky goods restriction struck down.
The declaration should have been limited to a finding that BMAP’s adoption had been unlawful.
Lord Justice Weir said: “It would be for government to decide how to proceed, should it wish to revisit the adoption of BMAP, with or without amendment.”
BMAP is now reverted to being regarded as a draft document and as such it is only one of several material considerations when determining a planning application. For those developers who had secured zoning or positive policy determinations in BMAP, this creates uncertainty. This, when combined with the uncertainties over the Stormont executive creates a policy vacuum. It’s not clear whether the Executive will seek to risk further meddling in BMAP or will try to side step the issue and let the Local Development Plan process take over.
The Belfast Local Development Plan and Lisburn and Castlereagh Local Development Plan which are in the course of being prepared may overtake and supersede BMAP. Both Belfast City Council and Lisburn and Castlereagh City Council have published and consulted upon their preferred options papers and draft plans are awaited.
It seems likely that further arguments will be made at the Examination in Public of the Local Development Plans before the Planning Appeals Commission as to whether a Local Development Plan is the appropriate place to set out regional development policy.
It is recommended that developers and retailers make their views known in responding to any draft Local Development Plans.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.