A planning ‘power grab’ by Peter Robinson and Martin McGuinness’s department is unlawful, one of the UK’s leading planning law experts has said.
In June, the DUP and Sinn Fein tabled last-minute amendments to the planning bill which would allow the Office of the First Minister and Deputy First Minister (OFMDFM) to designate any area of Northern Ireland as an area where they would oversee relaxed planning regulations.
Despite fierce criticism from rival parties, the combined votes of DUP and Sinn Fein MLAs saw the amendments incorporated into the Act, which has yet to be further debated by the Assembly.
As well as giving OFMDFM power to designate a zone in which it could then relax planning regulation, the amendments also radically curtailed the ability of those who object to a planning decision to challenge it in court. The DUP and Sinn Fein claimed that the changes were necessary to boost the economy.
Now, the News Letter has obtained the legal advice given to the Department of the Environment (DoE), which currently handles planning, about the proposals.
The 13-page document, drawn up by London QC David Elvin, points out legal difficulties with both of the OFMDFM proposals.
The advice, given in June and revised in early July, said: “The Assembly lacks legislative competence to make the clause 3A [about economically significant planning zones] amendments since they would breach EU law in respect at least of the Habitats and EUA Directives (and possibly others) and so fall within s. 6(2)(d) as being incompatible with EU law.”
It went on: “The Assembly also lacks legislative competence to make the clause 12A [restricting judicial reviews] amendments since the restriction of judicial review would mean that article 6 ECHR rights could not be met and thus fall within s. 6(2)(c) as being incompatible with the ECHR.”
It added that the failure to consult the public about the last-minute amendments “may not give rise to a basis for legal challenge but it fails to meet the requirements of best practice in OFMDFM’s own Practical Guide to Policy Making in Northern Ireland and is inconsistent with the consultation which has taken place on the Bill generally”.
The lawyer warned that the proposals “as they currently stand, are in breach of EU law”.
On the restrictions to judicial reviews, the legal advice said: “Our view is that the exclusion proposed in terms of the grounds of challenges would amount to incompatibility with the ECHR and thus fail the legislative competence requirements of s. 6 of the Northern Ireland Act 1998.”
However, it said that the restriction of judicial reviews to a period of six weeks after a planning decision was taken was probably lawful.
It added: “Apart from the legal issues, it is not clear why OFMDFM is not complying with its own guidance on consultation consistently with its approach to the bill generally, which leads to the conclusion it is not following best practice and is not acting in a consistent or open manner.”
SDLP environment minister Mark H Durkan should use his power to not progress the Planning Bill to thwart the “attempted power grab by Sinn Fein and the DUP”, UUP leader Mike Nesbitt has said.
In June, the chairwoman of the Assembly’s Environment Committee, Alliance MLA Anna Lo, made a similar call.
Mr Nesbitt said: “These amendments would give very significant planning powers to the Office of the First Minister and Deputy First Minister — why would such powers be taken away from the planning department? There is also a serious concern about the amendment that would seriously restrict the opportunity to challenge decisions through the legal process. Instead of improving the democratic process and protecting the rights of individuals they are diminishing that democracy – the system would be more akin to totalitarianism.”