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Newry Chamber of Commerce’s application for judicial review [2015] NIQB 65

DATE: 10 Jul 2015

In this case, the Northern Ireland High Court (Treacy J.) dismissed a judicial review challenge by the Newry Chamber of Commerce and Trade to the Department of Environment’s grant of planning permission to the Hill Partnership for a large-scale retail-led redevelopment (including an 80,000sqft food store, 70 light industrial business units, 14 residential units and associated development). 

The first two grounds alleged a failure to comply with the Habitats Directive and EIA Directive on the grounds that, after the screening out of the development from the need for appropriate assessment and the publication of the  Environmental Statement accompanying the application,  but before the grant of planning permission for the development, three other schemes were granted planning permission and there had been no consideration of the potential for in-combination effects on the Carlingford Lough SPA.  Treacy J. dismissed these grounds, holding that there had been no credible evidence before the decision-maker at the time when the permission was granted that the three other permissions could have potential in-combination effects with the development and that the applicant’s ex post facto evidence alleging such effects was of no assistance since it was not before the decision-maker. 

The next two grounds attacked the retail impact assessment and economic analysis undertaken by the Department of Environment. Treacy J. rejected the contention that the Department’s conclusions had been irrational. 

The penultimate ground alleged that the advertisement of the development had not been in accordance with the advertising requirements of the Planning (Northern Ireland) Order 1991 since there had been no mention of a bridge over the River Newry which formed part of the development. Treacy J. held that there was no legal requirement for the advertisement to mention every element of a proposed development; only the primary elements needed to be mentioned, and the bridge was not a primary element of the scheme. In any event, there was no evidence of any prejudice arising from the failure to mention the bridge. 

The final ground alleged a failure to comply with s.20 of the Northern Ireland Act 1998 on the basis that the decision should have been referred to the Executive Committee of the Northern Ireland Assembly on the basis that it fell within the category of “significant or controversial matters that are clearly outside the scope of the agreed programme referred to in paragraph 20 of Strand One of the Belfast Agreement”. Rejecting this ground, Treacy J. held that the fact that the planning application had been the subject of significant local objections did not make it “controversial” on a Northern Ireland level and that, in any event, the application fell within the scope of the Northern Ireland Executive’s current Programme for Government 2011-2014, which said that “applications with job creation potential” would be “given additional weight”

Treacy J. also accepted the Hill Partnership’s submission that the non-EU grounds should in any event be dismissed on grounds of delay, notwithstanding that leave for judicial review had previously been granted by consent. 

The judgment can be accessed by clicking here

Scott Lyness appeared with William Orbinson QC of the Bar Library for the applicant, Newry Chamber of Commerce and Trade, instructed by Carson McDowell LLP. 

David Elvin QC appeared with Philip McAteer of the Bar Library for the respondent, the Department of Environment, instructed by the Departmental Solicitor. 

John Litton QC and Charles Banner appeared for the Notice Party, the Hill Partnership, instructed by Arthur Cox LLP.