Central Craigavon Ltd’s Application
| Jurisdiction | Northern Ireland |
| Judge | Girvan LJ |
| Judgment Date | 07 June 2011 |
| Neutral Citation | [2011] NICA 17 |
| Year | 2011 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 07 June 2011 |
Neutral Citation No. [2011] NICA 17 Ref:
GIR8181
Judgment: approved by the Court for handing down Delivered:
07/06/11
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_______
ON APPEAL FROM THE HIGH COURT OF JUSTICE
IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
Central Craigavon Ltd’s Application [2011] NICA 17
IN THE MATTER OF AN APPLICATION BY
CENTRAL CRAIGAVON LIMITED FOR JUDICIAL REVIEW
BETWEEN:
CENTRAL CRAIGAVON LIMITED
Appellant;
-and-
THE DEPARTMENT OF THE ENVIRONMENT FOR
NORTHERN IRELAND
Respondent.
________
Before: Higgins LJ, Girvan LJ and Coghlin LJ
________
GIRVAN LJ (delivering the judgment of the court)
Introduction
[1] This is an appeal brought by Central Craigavon Limited (“the
appellant”) in respect of the judgment and order in judicial review
proceedings which the appellant instituted against the Department of the
Environment (“the DOE”). In those proceedings the appellant sought to
challenge the decision of the DOE of 15 January 2008 whereby the DOE
purported to adopt “draft Planning Policy Statement 5: Retailing, Town
Centres and Commercial Leisure Developments” (“draft PPS5”), a draft
policy statement which had previously been formulated by the Department of
Regional Development (“DRD”) purportedly in exercise of its planning
2
powers. The proceedings and the appeal arise in the context of a disputed
application for development at Sprucefield Regional Shopping Centre
(“Sprucefield”). The appellant is the landlord of Rushmere Shopping Centre
in Craigavon and considers that it would be detrimentally affected by a major
expansion of Sprucefield.
[2] The appellant’s challenge at first instance to the DOE’s adoption of
draft PPS5 was based on four key grounds. Firstly, it contended that the DRD
had no lawful power to formulate and produce PPS5 having regard to its
restricted powers in the field of planning law. This unlawfulness was not
remedied by the DOE’s purported taking over and adoption of draft PPS5.
Secondly, in the formulation of draft PPS5 the DOE had not complied with
the mandatory environmental assessment requirements of EU law or the
domestic law regulations giving effect to the Directive. Thirdly, the DOE had
failed to comply with the requirements of the Planning (Northern Ireland)
Order 1991 for the development plan process. Fourthly, the Department and
the Minister had adopted draft PPS5 without the required Executive approval
of the policy. In its appeal the appellant does not pursue its third ground of
challenge which was rejected by the trial judge. In this appeal the appellant
does challenge the trial judge’s rejection of its first and second grounds of
challenge. In relation to the fourth ground of challenge the judge found for
the appellant, finding a breach of the Ministerial Code, but considered that it
was inappropriate to quash the impugned decision adopting the policy. The
appellant challenges the judge’s refusal to grant relief on that ground.
[3] The DOE on its part did not appeal against the trial judge’s finding
against the Department of a breach of the Ministerial Code. It does seek to
uphold the trial judge’s approach to the question of the remedy. After the
trial judge gave his decision in the case a letter was sent by the DOE solicitors
on 11 August 2010 to the appellant’s solicitors indicating that the DOE had
decided not to give draft PPS5 any weight until such time as it had been
approved by the Executive Committee. This being so, the DOE contends that
the fourth issue is academic. We did not in the course of the hearing give a
ruling on that issue instead permitting the parties to make submissions to the
court on the issue while leaving open the question whether the court would
decline to rule on the point because of the departmental decision that the
matter would go before the Executive Committee.
Background
[4] In June 1996 the DOE published Planning Policy Statement 5: Retailing
in Town Centres (“the original PPS5”). At that time it had responsibility for
strategic and other planning policy issues. Paragraph 35 of the original PPS5
deals with regional shopping centres and identifies Sprucfield as the only
purpose built out of town regional shopping centre in Northern Ireland. It
provides that the Department would continue to control the scale and nature
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