Belfast Telegraph

Sunday 21 September 2014

Northern Ireland's 'unlawful' Planning Bill set to be dumped

Environment Minister Mark H Durkan is poised to scrap the Planning Bill
Environment Minister Mark H Durkan is poised to scrap the Planning Bill

Speculation is increasing that Environment Minister Mark H Durkan is poised to scrap the Planning Bill – in a move that would thwart alleged DUP and Sinn Fein efforts to "power grab" planning powers.

Mr Durkan is due to give a ministerial statement to the Assembly this morning on the long-awaited Bill and it is thought he could be about to withdraw it over concerns two amendments added by the Assembly could be unlawful.

The Belfast Telegraph can reveal that the Human Rights Commission has warned the Assembly that one controversial clause, limiting the power to legally challenge planning decisions by judicial review, breaches international laws.

If this clause had been in place at the time, it could have made it impossible for members of the public to lodge legal challenges to planning decisions relating to George Best Belfast City Airport, a goldmine near Omagh and the A5 road scheme.

The Bill was partly designed to speed up planning reforms that were to be introduced with the local government reorganisation.

The eleventh hour amendment to the Planning Bill was added by the Assembly in June against the advice of then Environment Minister Alex Attwood, but was never scrutinised by Stormont's environment committee.

The amendment also gave powers to set up special economic planning zones to the office of the First and Deputy First Minister. This effectively transferred certain planning powers from the Department of the Environment to OFMDFM, and was branded a "power grab" by opponents.

At the time Mr Attwood said he had legal advice that suggested the amendments were unlawful. The Belfast Telegraph has obtained a letter written by Chief Commissioner Michael O'Flaherty to the Assembly speaker warning that the planned change to the Planning Bill breaches the UN's Aarhus Convention, which governs access to justice in environmental matters.

The convention requires that members of the public have access to a review procedure that allows them to challenge the legality of planning decisions, Mr O'Flaherty said.

The amendment also breaches the European Convention on Human Rights by denying members of the public a right to a fair hearing under Article 6 (1), he said.

Under the rule change, the time limit for judicial review would be cut from three months to six weeks.

Objectors would also only be allowed to apply for a judicial review when there was an alleged conflict with human rights law or European law.

The clause would also remove the court's ability to review the legality, rationality and reasonableness of planning decisions.

BACKGROUND

Four successful judicial reviews that might not have been possible under the proposed law change:

  • Successful challenge of decision to cap passengers at Belfast City Airport (2011)
  • Three Omagh residents awarded £10,000 over a goldmine at Cavanacaw (2012)
  • High Court rules Sammy Wilson acted unlawfully in his advice to planners (2010)
  • Decision to go ahead with £330m A5 road quashed (2013)

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