Northern Ireland’s environment minister has scrapped proposals to overhaul planning arrangements in opposition to changes introduced by the DUP and Sinn Fein.
It followed legal advice on steps sought by the two largest parties which are designed to make the system more business friendly and limit the right of people to challenge planning decisions in court.
They would potentially have given the first and deputy first ministers the power to establish special economic zones and limited the grounds on which objectors could secure judicial reviews of those major development decisions.
Environment Minister Mark Durkan said: “This is not only an attempt to grab existing planning powers from my department, but also an attempt to dis-empower future local government.”
The Planning Bill has been making its way through the Stormont Assembly. But Mr Durkan has received legal advice that amendments sought by OFMDFM were in breach of the European Convention on Human Rights.
“I have grave reservations about the amendments to the Planning Bill in respect of ESPZ’s (Economically Significant Planning Zones) and the restriction of the right to judicial review for legal, procedural and evidential reasons, “ the SDLP MLA said.
“Therefore, after very careful and lengthy consideration I have decided not to move the Planning Bill to further consideration stage either now or in the future.”
The minister said it was not appropriate or sensible to bring forward provisions which run the risk of exposing Northern Ireland to European action over breaches to its provisions.
He claimed the OFMDFM amendments had not been subject to the rigours of full public consultation.
Mr Durkan said judicial reviews at present were relatively rare.
“Whilst the Executive and, indeed, any minister responsible for planning may not always welcome such challenges, it is fair to say that such a process is a fundamental right of citizens, and I could go a step further and say that the potential threat of judicial review has been one of the key reasons that the planning system has remained fair and objective,” he added.
Over the past three years there have been fewer than 20 judicial reviews of the 44,000 decisions made by planners.
Mr Durkan added: “That’s a tiny fraction of the total number of decisions made. It seems to me that restricting the right of citizens to challenge planning decisions is not only incompatible with our obligations under the European Convention on Human Rights but also represents taking a hammer to crack a very small nut.”
Mr Durkan said most significant and high profile planning judicial reviews of recent years will be unaffected by these amendments, which acknowledge that a right of appeal to the High Court must remain where there is a question about the compatibility of a decision or determination with EU law.
Such issues of EU law have been key grounds for many of the judicial review challenges to high profile planning decisions of recent years.
The minister said other grounds would be affected, for example decisions made by Government outside its legal powers or where the decision was plainly irrational.
He said an existing law could have been activated as an alternative to the new amendments.
“However, it is now clear that the intent of the amendments on ESPZs was not to introduce new planning powers, but simply to make OFMDFM a new planning authority in Northern Ireland,” Mr Durkan added.
“Bearing all this in mind I can see no good reason to introduce ESPZs and to vest such planning powers in another department. This could only introduce confusion into the planning system.”
DUP MLA Peter Weir said the minister’s decision was anti-democratic.
“Defying the democratic will of the assembly severely damages the credibility of the SDLP,” he added.
“Despite a majority of nationalists and unionists being in favour of this legislation, Mr Durkan is allowing party politics to cloud his judgment and defy the will of the assembly.
“As a party that often lectures others about democratic politics, this is rank hypocrisy for the SDLP.”