NEW legislation being fast-tracked through the Assembly, intended to provide greater certainty to the planning process and limit the grounds for future legal challenge, risks creating more uncertainty and potential for legal challenge.
The Executive Committee (Functions) Bill initially proposed by the Infrastructure Minister has already passed the second stage of the Assembly with little scrutiny or consultation, and could have unintended consequences on planning and inward investment for years to come.
Ministers are currently required, in accordance with the Good Friday Agreement, the Northern Ireland Act and the Ministerial Code, to bring any cross-cutting decision or any decision that is significant or controversial (and not included in the programme for government) before the Executive Committee.
This was a central issue in the judicial review brought by Colin Buick about the arc21 residual waste project.
Prior to this decision, major planning applications to be determined by the Minister for Infrastructure were not considered cross-cutting and therefore were not brought before the Executive. By their nature, almost all major planning applications determined by the Department for Infrastructurewill be “significant and controversial”.
In addition, the Department for Agriculture, Environment and Rural Affairs is a consultee for all planning applications, meaning that every planning application will be “cross-cutting”.
Considering the Buick decision, all planning applications to be determined by DfI would be required to come before the Executive Committee.
Ministers were concerned that the Buick decision would make the committee a de-facto planning authority, leaving the minister unable to make decisions in relation to functions which under planning legislation are the responsibility of DfI. For these reasons, the new Bill which passed the second stage of the Assembly on July 6 and could soon become law.
The amendments to the Northern Ireland Act introduced by the proposed Bill remove the requirement to bring any decision on a planning application by the DFI or DFI Minister before the Executive, no matter how controversial or significant, and regardless of how many other departments that decision would affect.
In a post conflict society planning applications may be received for politically controversial developments which are the very type of “significant and controversial” matters which the authors of the Good Friday Agreement envisaged would come before the Executive. Intentional or not, the draft legislation represents a significant constitutional shift where the DFI minister is in effect given more power and less Executive scrutiny than their Ministerial colleagues.
The Ministerial Code, which underpins the Stormont institutions, will also need to be amended to reflect any amendments to the Northern Ireland Act following this Bill. Such changes need to come before the Assembly, and it is not clear when or how the Ministerial Code will be amended.
By extension, any amendment will mean that the Infrastructure Minister will not be subject to large swathes of the Ministerial Code when exercising functions in respect of planning applications. In contrast, other ministers, such as the Daera minister, when exercising similar judgements in respect of the suitability of a marine development, which require an Environmental Impact Assessment and Habitats Regulations Assessment may be required to refer a Marine Licence to the Executive and comply fully with the Ministerial Code.
The proposed changes may give rise to unintended and unhelpful consequences. There are many major investment projects which require multiple consents from multiple departments such as planning permission from DfI, environmental consents from Daera and energy consents from the Department for the Economy.
A developer could face the refusal of an environmental consent brought before the Executive after securing planning permission from the DfI and having invested considerable money in commencing development. Clearly such uncertainty will deter much needed investment at a time when we need it most.
The Bill also proposes further clarification to what is meant by “cross cutting” and will apply to ministerial decisions outside of planning. The legislation proposes to limit referral to the Executive to decisions where a matter is “more than incidental” to the exercise of another minister’s functions. No real clarification is provided as to what is meant by “more than incidental”. The proposed wording creates more confusion and is likely to lead to further litigation not less.
The proposed amendments to the Northern Ireland Act were designed to close an avenue of legal challenge and to provide greater clarity and certainty in the planning decision making process.
But they create further uncertainty and will be the subject of legal challenge at a time when Northern Ireland needs to focus on infrastructure investment and driving forward economic development.
Maria O’Loan is a consultant at Tughans in Belfast (https://www.tughans.com)
