About this case:

• Citation:
  [2022] NIQB 40
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Michael Humphreys

In a post script, Mr Justice Michael Humphreys also rebuked counsel over an expert witness who said the planning permission was “unlawful”, which demonstrated a “complete lack of understanding of the role of an expert witness in our legal system”.

Background

The proposed redevelopment of Casement Park in Belfast by the Ulster GAA has been the subject of much scrutiny and debate since its announcement in 2009. Planning permission was first granted in January 2014 but was ultimately quashed by the same applicant in this case, an association made up of residents who live in close proximity to Casement Park called MORA.

Another application for planning permission was submitted in 2017 and granted by the then minister, Nichola Mallon, subject to a series of conditions and a planning agreement pursuant to section 76 of the Planning (Northern Ireland) Act 2011.

The application sought to demolish all existing structures on the site and construct a new 34,186-seater stadium. 1,305 letters of objection were received, alongside 1,584 letters of support for the development.

MORA commenced judicial review proceedings seeking to quash the grant of planning permission on two grounds. Firstly, it argued that the minister acted ultra vires by failing to refer the matter to the Executive Committee for consideration.

The second set of grounds sought to impugn the permission on the basis of a series of alleged errors in the planning process.

The s.76 agreement

The Department of Infrastructure (as the owner), Ulster GAA (as the operator), the Central Council of the GAA and the Department for Communities all entered into the s.76 agreement, which outlined certain procedures and plans for the proposed site.

This agreement included requirements that, prior to the commencement of operations, a suitably qualified stadium manager would be appointed, and any major events (over 3,100 spectators) would not occur unless the dedicated off-site parking and park and ride locations were secured.

It also outlined the anticipated number of yearly concerts and matches, and noted that there would be options for residents’ representatives to field the views of members of the public affected by the operation of the stadium and share these with the group.

Constitutional ground of challenge

MORA contended that the decision to grant the permission fell foul of section 28A of the Northern Ireland Act 1998 (NIA) and the Ministerial Code, as the minister was obliged to refer the question to the Executive Committee for consideration.

The respondent, however, argued that the new section 20(7) in NIA intended to remove the requirement to seek the approval of the Executive Committee for planning decisions.

This is an area of some debate, because the new section of the Act has not yet been reflected in the Ministerial Code. This issue was recently addressed by Mr Justice David Scoffield in Re Safe Electricity A&T Limited [2021] NIQB 93.

In the present case, the respondent argued that the conflict between the statutory provisions should be resolved by an application of the doctrine of implied repeal where a later statutory provision takes precedence over an earlier one.

They also contended that the role of the court is to give effect to the intention of the legislature by reference to the natural and ordinary meaning of the words of the statute. The wording in section 20(7) is clear and unambiguous; planning decisions may be taken without recourse to the Executive Committee.

Therefore, the provisions of the Code which require cross-cutting decisions to be referred to the Executive should be read subject to section 20(7), as being inapplicable to planning decisions.

In determining this issue, the court followed the Safe Electricity precedent. The judge found that the decision was cross-cutting and should have been brought before the Executive Committee.

However, this failure was not in contravention of the Ministerial Code, due to the carve out for planning permission introduced by the new provisions in the Northern Ireland Act. Next, the court considered whether the planning permission itself had grounds to be quashed.

Planning grounds of challenge

The applicant had a myriad of wide-ranging arguments against the planning permission in this case.

They argued that the “ongoing failure to publish or provide a full copy of the s.76 agreement” was unlawful as being in breach of the constitutional principle of transparency and a breach of the Environmental Impact Regulations 2004.

This “hopeless” argument was rejected, as they had received a copy of the agreement.

Next, they argued that they should have been consulted before the s.76 agreement was made. The court found that the duty to consult in s.76 is limited to consultation with the appropriate council, and any wider duty to consult was inconceivable.

The applicant also had multiple opportunities to make representations and comment on the planning application, as pre-application community consultation lasted for 32 weeks.
The applicant also argued that the respondent must show a need for a s.76 agreement. This was rejected, as the use of a s.76 agreement is merely a “question of judgment”.

Various other arguments attacking the validity of the agreement and were also rejected by the court. Accordingly, the court found that the s.76 agreement was valid and enforceable.

Conclusion

None of the planning grounds were established by the applicant, and the grounds of challenge were found to be without merit. The court therefore followed the approach in Safe Electricity and declined to grant any relief. The application for judicial review was dismissed.