Belfast Metropolitan Area Plan (BMAP) UpdateMarch 16, 2016
The Belfast Metropolitan Area Plan (BMAP) saga extending back more than a decade is a salutary tale for the new Councils as they take over planning powers from the Department of the Environment (DoE). Not only must the new processes ensure such delays and uncertainty do not happen again, but the policy vacuum which has been created needs to be urgently addressed.
BMAP is a development plan prepared by DoE for six of the former Council areas. The concept dates back to 2000 and preparation of the plan was formally initiated in January 2001. An Issues Paper was published in December 2001 to assist and inform the consultation process which ended in March 2002. In April 2003 a report comprising a collation of the opinions expressed throughout the process was released by DoE.
Draft BMAP was published in November 2004 with a consultation closing in January 2005. DoE requested the Planning Appeals Commission (PAC) to hold a Public Inquiry and the Inquiry opened in April 2007 and formally closed in May 2008. The PAC released its reports in stages between January 2008 and January 2012. In 2013 the Department for Regional Development confirmed that the plan conformed with its policy framework.
In September 2014 the Environment Minister, Mark H Durkan (some 20 months after the final PAC reports) issued an Adoption Statement.
In October 2014 the Enterprise Minister, Arlene Foster announced her intention to seek a Judicial Review of Minister Durkan’s decision to adopt BMAP based on an alleged breach of the Ministerial Code. Under the Ministerial Code there is an obligation on each Minister to bring to the attention of the Executive, any matter which, for example, cuts across the responsibilities of two or more Ministers or is significant or controversial. Minister Durkan’s position is that he engaged fully with the Executive, circulating papers and documentation and repeatedly requesting that the matter be tabled at an Executive meeting, although this did not happen.
In January 2015 leave was granted to Minister Foster to bring the JR proceedings. The substantive JR proceedings are scheduled to be heard by the High Court on 27th May. It is to be hoped that this date is not further delayed as the continuing delay has created an unfortunate policy lacuna resulting in commercial uncertainty for landowners and investors – particularly ironic when the aim of BMAP was to create jobs, attract investment and secure economic growth and support for local communities. The uncertainty is all the more significant with the transfer of planning powers to the new super Councils on 1 April. DoE had originally assured all stakeholders that the Strategic Planning Policy Statement (SPPS) would be in place before powers transferred. This has not happened and no firm timescale for that has been set as similar issues in respect of consideration by the Executive apply.
The outcome of the JR, the arrival of the SPPS and some much needed planning policy are therefore eagerly awaited and long overdue.
On Friday 11th March 2016 Mr Justice Treacy ruled that the Environment Minister acted unilaterally and unlawfully in authorising the Belfast Metropolitan Area Plan (BMAP) without securing consent from Executive colleagues. A decision on what remedy to grant in the case will be taken at a later date.
On Friday 18th November the High Court approved an Order which further declared that the decision made by the Minister of the Environment to authorise the adoption of BMAP was unlawful and that the retail policy for Sprucefield Regional Shopping Centre contained in the adopted BMAP, namely the ‘bulky goods’ restriction, was adopted unlawfully.
The Order states that the ‘bulky goods’ restriction shall have no force or effect and should not be taken into account in informing planning decisions. The Order also states that in light of the retrospective Executive approval given to all other elements of the adopted BMAP (save for the ‘bulky goods’ restriction) the Court declines to make any order in relation to the remainder of the adopted BMAP and that it may continue to be taken into account in informing planning decisions.
We understand that an appeal has been lodged against the decision.
An appeal was made by Belfast City Council (“BCC”), a Notice Party, in relation to the terms of the Remedies Order made by Mr Justice Treacy on the 18th November 2016.
The appeal was heard on the 22nd March 2017. The essential argument of BCC was that the judicial review proceedings concerned only the validity of the adoption of BMAP by the unilateral action of the DoE Minister. BCC submitted that the declarations made on the foot of the decision by Mr Justice Treacy, that the adoption was unlawful, went beyond that issue and gave directions that sought to sever and strike down the bulky goods provisions of BMAP as having been “adopted unlawfully” while simultaneously declaring that the remainder of “the adopted BMAP may continue to be taken into account informing planning decisions”. BCC submitted that BMAP as a whole had been declared not to have been validly adopted and there was no occasion for the making of an Order by way of remedy beyond that declaration.
On the 18th May 2017 the Court of Appeal ruled that it was “no longer a matter of dispute by any principal, successor or notice party that the Minister’s decision to direct the formal adoption of BMAP was, for all the reasons clearly articulated by Treacy J, ultra vires. The purported adoption was accordingly of no force or effect; the draft BMAP remains in its entirety unadopted”.
This article has been produced for general information purposes and further advice should be sought from a professional advisor.