Row looming as First Ministers prepare to seize control of axed Planning Bill
Peter Robinson and Martin McGuinness are preparing to take control of the Planning Bill axed by Environment Minister Mark H Durkan, according to senior Stormont sources.
Sinn Fein and the DUP have enough votes on the Executive to push through the about-turn on the controversial legislation and bring it back to the Assembly.
But the move would be dangerous new ground for the Executive and could result in more court challenges over ministerial authority.
It might also result in the SDLP triggering a petition of concern to thwart the Bill by preventing cross-community support.
Nonetheless, the First Minister and Deputy First Minister are believed to be considering taking over responsibility for the Bill themselves, or passing it on Enterprise Minister Arlene Foster.
The row is set to be on the agenda for the next Executive meeting after Mr Robinson and Mr McGuinness obtained legal advice from Attorney General John Larkin challenging Mr Durkan's decision to abandon the legislation.
A DUP source said: "The fact is Mr Durkan has left himself wide open on this one and very vulnerable to attack from Sinn Fein. The Attorney General has made his view on this clear and has effectively dismissed the advice given to Mr Durkan."
The minister, however, countered by saying he noted that the Attorney General's opinion "runs contrary" to the legal advice he received "from one of the top QCs in the UK, who specialises in planning, environmental and public law, and other legal opinion on the amendments received from the Northern Ireland Human Rights Commission and the Non Government Organisation sector".
"I am considering this opinion and will take the necessary time to do this carefully and diligently," Mr Durkan added.
The row goes back to the last Assembly session when MLAs passed amendments giving Robinson and McGuinness powers to establish special economic planning zones – for major projects like the John Lewis store – but also limiting the grounds on which objectors could secure court challenges.
The step change in planning legislation had been signalled in the "economic pact" negotiated by Mr Robinson and Mr McGuinness with David Cameron, with amendments then supported by a majority of both unionist and nationalist MLAs.
The then minister Alex Attwood, however, slammed the move as a "power grab" amid fears that economic considerations in relation to planning verdicts would outweigh environmental concerns, leading to Mr Durkan's controversial abandonment of the Bill last week.
He told MLAs he had been advised by senior counsel that any attempt to limit the right of an individual to to go to court would break the European Convention on Human Rights – although Mr Larkin warned: "This view, with respect, is mistaken."
Referring to the envisaged creation of the new planning zones, he said nothing in the amendments "does anything in breach of any provision of the Habitats Directive, the Wild Birds Directive and Environmental Impact Assessment directive...
"Undoubtedly the power conferred on OFMDFM...to create an economically significant planning zone would have to be exercised in a manner compatible with community law
"It appears to be assumed (in the legal opinion obtained by Minister Durkan) that the power conferred... will not be exercised compatibly with community law; there is simply no basis for this assumption."
Mr Durkan accused Mr Robinson and Mr McGuinness of attempting to make themselves into a new planning authority for Northern Ireland and rejected claims that by failing to consult his Executive colleagues he had broken the ministerial code.
Mr Durkan also argued: "The planning system is now much better placed to support economic development and provide greater certainty on outcomes and time frames for managing applications."