Newry Chamber of Commerce and Trade's Application
| Jurisdiction | Northern Ireland |
| Judge | Treacy J |
| Judgment Date | 10 July 2015 |
| Neutral Citation | [2015] NIQB 65 |
| Date | 10 July 2015 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2015 |
1
Neutral Citation No. [2015] NIQB 65 Ref: TRE9718
Judgment: approved by the Court for handing down Delivered: 10/07/2015
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
Newry Chamber of Commerce and Trade’s Application [2015] NIQB 65
IN THE MATTER OF AN APPLICATION BY NEWRY CHAMBER OF
COMMERCE AND TRADE FOR JUDICIAL REVIEW
and
IN THE MATTER OF A DECISION BY THE DEPARTMENT OF
ENVIRONMENT FOR NORTHERN IRELAND (PLANNING SERVICE) ON
19 AUGUST 2014 TO APPROVE PLANNING APPLICATION REF: P/2009/0163/F
________
TREACY J
INDEX
Section:
Para No:
Page No:
• Introduction ......................................................................
1–2
2
• Background .......................................................................
3–40
2–7
• Order 53 Statement ..........................................................
41–43
7–16
• Legal Principles ................................................................
44
16–17
• Ground 1 – Failure to comply with the Habitats
Regulations .......................................................................
45–70
17–23
• Ground 2 – Failure to comply with the EIA
Regulations .......................................................................
71–76
24–25
• Ground 4 – Failure to conduct adequate inquiry into
retail impact on Newry City Centre .....................
77–94
25–29
• Ground 5 – Irrational approach to consideration of
economic benefits ............................................................
95–106
29–32
• Ground 6 – Failure properly to advertise proposals
pursuant to the Planning (NI) Order 1991 ...................
107–119
32–36
• Ground 7 – Failure to refer the application to the
Executive Committee of the Assembly ........................
120–137
36–40
• Conclusion .........................................................................
138
40
2
Introduction
[1] By this application the applicant challenges the grant of full planning
permission on 14 August 2014 by the respondent in relation to land at Carnbane
Way Newry (“the land”) for the “comprehensive mixed use development to include
1 No. food store, 70 No. light industrial/business units, 1 No. gatehouse, 1 No. coffee
shop, residential use (14 units), car parking, general landscaping and general site
works” (“the Permission”).
[2] The applicant is a company limited by guarantee. Its membership is drawn
from the business community in Newry whose interests it represents. Its activity has
included promoting the physical development and regeneration of the City and its
commercial centre. The applicant, with other traders, strongly objected to the
proposals, on grounds including their conflict with Planning Policy Statement 5
(Retailing and Town Centres), in particular their likely impact on the vitality and
viability of Newry City Centre.
Background
[3] The relevant factual background and the history of the consideration of the
planning application are set out at length in the affidavit of Philip Stinson, Principal
Planning Officer within the DOE, Planning and Local Government Group. Between
paras 4-49 he rehearses the decision making process and the circumstances in which
the Department reversed its earlier position and concluded that permission should
be granted for the Planning Application.
[4] Planning Application reference P/2009/0163/F (“the planning application”)
was received by the Department on 12 February 2009. Its description was amended
on 19 February 2009. The planning applicant was the Hill Partnership. The
application described the development in the following terms:
“Comprehensive mixed use development to include: 1
No. food store and automated petrol filling station, 1 no.
10 screen cinema complex, 5 No. restaurant units, 4 No.
office blocks, 66 No. light industrial/business units, 1 No.
coffee shop, residential use (29 Units), landscaped
parkland, car parking, general landscaping and general
site works.”
[5] A positive EIA determination was made on 19 February 2009. The application
was accompanied by a number of environmental reports and the planning applicant
requested this to be treated as the environmental statement, subject to the
submission of a non-technical summary to fulfil the requirements of Schedule 4 of
the Planning (Environmental Impact Assessment) (NI) Regulations 1999. The
non-technical summary was submitted on 18 March 2009 to complete the
environmental statement.
3
[6] The application was advertised in the Newry Reporter and the Armagh &
Down Observer on 5 March 2009, the Mourne Observer and the Rathfriland Outlook
on 4 March 2009 in accordance with statutory requirements. The description of the
development used in the advertisements was that contained in the planning
application. A separate advertisement under Regulation 12 the Planning
(Environmental Impact Assessment) Regulations (Northern Ireland) 1999 was placed
in the same newspapers on 29 April 2009 and 30 April 2009 and additionally in the
Crossmaglen Examiner on 28 April 2009.
[7] The application was considered by the Department to be a major planning
application for the purposes of Article 31 of the Planning (NI) Order 1991. It
considered that the application would, if permitted involve a substantial departure
from the development plan for the area to which it relates, affect the whole of a
neighbourhood and consist of or include the construction, formation, laying out, or
alteration of a means of access to a trunk road or of any other development of land
within 67 metres of the middle of such a road, or of the nearest part of a special road.
The Department therefore, on 7 April 2009, served Notice under Article 31 of the
Order on the Hill Partnership. Article 31 was thereafter applied to the said
application.
[8] A retail impact assessment was received by the Department on 15 July 2009.
[9] The Department received an Economic Impact Assessment on 21 October
2009 prepared by PriceWaterhouseCoopers on behalf of the planning applicant. The
Department then undertook consultation with DRD Economics Branch (on
23 October 2013) who provided comments on the assessment on 22 February 2010.
Subsequently PriceWaterhouseCoopers provided a response to the comments made
by DRD Economics Branch on 3 March 2010.
[10] The Strategic Planning Division (‘SPD’) in a Development Management
Report (‘DMR’) on the 26th May 2010 recommended that the application be refused.
This was endorsed by the Management Board with a recommendation to refuse the
application forwarded to the then Minister for his consideration on 28 May 2010.
The recommendation was based on the grounds that the proposal would have a
detrimental retail impact on the vitality and viability of Newry city centre by
undermining its convenience shopping function, there was a viable alternative site
within the draft town centre boundary, there would be a loss of investment in
Newry City Centre and prematurity as the site was within an area designated as an
LLPA within the draft Banbridge Newry and Mourne Area Plan 2015 which the
proposal would adversely impact upon.
[11] The Minister requested on 9 July 2010 that the application be deferred until
such time when the Department was in a better position to advise on the availability
of an alternative site located within the draft Newry city centre.
[12] SPD prepared an addendum to the DMR on 16 March 2011 the purpose of
which was to provide an update on the alternative site, highlight potential
cumulative retail impact and outline the changes to the planning policy context since
the previous submission to the Minister of 28 May 2010 and provide a
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