High Court of Justice in Northern Ireland Queen's Bench Division Decisions

The Grounds of the Application

(1) PPS 14 is ultra vires the powers of the DRD.

(2) The attempt to prospectively give determining weight to PPS 14 is unlawful.

(3) DRD failed to properly appraise itself in relation to draft PPS 14 by way of proper consultation or inquiry.

PPS 14

The Ministerial Statement

"This is a statement of policy, made by me pursuant to Article 4 of the Strategic Planning (Northern Ireland) Order 1999 … This statement is an expression of Government policy … Today I am publishing draft (PPS 14) that proposes a presumption against development throughout the countryside. In making the present statement I have considered the views put forward by a wide range of bodies and individuals in response to the Issues Paper published for public consultation in June 2004 … I have noted that many rural dwellers are concerned that their way of life should be protected. There is also concern that the high rate of new buildings in the countryside is unsustainable and will produce irreversible and unacceptable impacts on the environment ..

Having given careful consideration to all views and representations expressed during the policy making process to date, I have concluded that in the public interest, actions designed to minimise irreversible damage cannot be delayed. The present statement seeks to address substantial concerns that the policy direction of draft PPS 14 could be seriously frustrated and undermined by a large influx of planning applications, particularly for single dwellings, during the consultation period and before the final policy is published. At the same time, I am of course aware of my obligation to conscientiously consider all further views and representations expressed during the next phase of the overall consultation exercise initiated today …

In view of this draft PPS `Sustainable Development in the Countryside' proposes a presumption against new development in the countryside outside designated settlement limits with a limited number of exceptions …

This statement expresses my assessments as DRD Minister of the requirements of the public interest at present …

In addition I consider that in the present circumstances where there is evidence of a significant threat to the environment from new development, there is good reason to proceed with a precautionary approach pending the completion of (PPS 14) policy development process. To this end the provisions of draft PPS 14 will immediately take precedence over the existing policies listed in the draft and should be accorded substantial weight in the determination of all planning applications received after today ..

I make this statement with the approval of and having consulted the Minister with responsibility for the Department of the Environment Planning Service (DOE.)"

The Statutory Framework

"Part II

FUNCTIONS OF DEPARTMENT OF THE ENVIRONMENT WITH RESPECT TO DEVELOPMENT OF LAND

3.-(1) The Department shall formulate and co-ordinate policy (my underlining) for securing the orderly and consistent development of land and the planning of that development …

………………………………………

PART III

DEVELOPMENT PLANS

Development Plans

4.-(1) The Department may at any time make a development plan for any area or alter, repeal or replace a development plan adopted by it for any area. …………….

Publicity and consultation

5.-(1) Where the Department proposes to make, alter, repeal or replace a development plan for an area, it shall proceed in accordance with this Article, unless Article 6 (which provides a short procedure for such alterations, etc.) applies.

(Article 5 goes on to set out a number of steps which have to taken by the Department by way of publicity and consultation)

…

Publicity and consultation – short procedure for certain alterations etc.

6.-(1) Where the Department proposes to alter, repeal or replace a development plan for an area and it appears to the Department that the issues involved are not of sufficient importance to warrant the full procedures set out in Article 5, the Department may proceed instead in accordance with this Article.

(Article 6 then goes on to set out various steps that can be taken by way of a short procedure)

….

Inquiries relating to development plans

7. The Department may cause a public local inquiry to be held by the Planning Appeals Commission for the purpose of considering objections to a development plan or to the alteration, repeal or replacement of a development plan.

Part IV

PLANNING CONTROL

DEVELOPMENT AND REQUIREMENT OF PLANNING PERMISSION

Meaning of `development'

11.-(1) In this Order, subject to paragraphs (2) to (4), `development' means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land ……………….

Determination of planning applications

25.—(1) Subject to this Part, where an application is made to the Department for planning permission, the Department, in dealing with the application, shall have regard to the development plan, so far as material to the application, and to any other material considerations, and—

(a) subject to Articles 34 and 35, may grant planning permission, either unconditionally or subject to such conditions as it thinks fit; or

(b) may refuse planning permission.

(2) In determining any application for planning permission for development of any class to which Article 21(1) applies, the Department shall take into account any representations relating to that application which are received by it before the expiration of the period of 14 days from the date on which notice of the application is first published in a newspaper.

(3) Where an application for planning permission is accompanied by such a certificate as is mentioned in Article 22(1)(c) or (d), the Department—

(a) in determining the application, shall take into account any representations relating thereto which are made to it by any person who satisfies it that, in relation to any of the designated land, he is such a person as is described in Article 22(1)(c); and

(b) shall give notice of its decision on the application to every person who made representations which it was required to take into account under sub-paragraph (a). "

... No 660) (NI4))

The relevant articles read as follows:

"Interpretation

2.-(2) In this Order `the Department' means the Department for Regional Development.

(3) This Order shall be construed as one with the Planning (Northern Ireland) Order 1991.

Regional development strategy

3.-(1) The Department shall formulate, in consultation with other Northern Ireland departments, a regional development strategy ["RDS"] for Northern Ireland, that is to say a strategy for the long-term development of Northern Ireland.

General powers of the department

4. The Department shall –

(a) Provide policy guidance and advice in relation to its regional development strategy and the implementation thereof.

Departments to have regard to regional development strategy

5. In exercising any functions in relation to development in Northern Ireland –

(a) a Northern Ireland department, and

(b) a department of the Government of the United Kingdom

shall have regard to the regional development strategy.

Power to undertake surveys and studies

6.-(1) The Department may undertake, or cause to be undertaken, such surveys or studies as it may consider necessary for the purposes of its functions under this Order, including surveys or studies relating to any of the following matters …………………….

(2) The Department may, for the purpose of the exercise of any of its functions under this Order –

(a) consult with such persons as it thinks fit, and

(b) where it considers it appropriate to do so, cause a public local inquiry to be held.

(3) Without prejudice to section 23 of the Interpretation Act (Northern Ireland) 1954 the Department may make rules regulating the procedure to be followed in connection with inquiries held by or on behalf of the Department under this Order.

……………………………………………..

Schedule

. . .

3. In Article 3(of the 1991 Order) after paragraph (1) insert –

"(1A) The Department shall ensure that any such policy is consistent with the regional development strategy (this therefore amends Article 3 of the 1991 Order)"

4. In Article 4 after paragraph (1) insert

"(1A) A development plan for an area must be consistent with the regional development strategy."

"Regional development strategy

Certain policies, plans and schemes under the principal order to be in general conformity with the regional development strategy

27. In each of the following provisions of the principal order( i.e the 1991 Order)

(a) Article 3(1A) (policy under that Article to be consistent with the regional development strategy);

(b) Article 4(1A) (development plan for an area to be consistent with the regional development strategy);

. . .

for the words "consistent with" there is substituted "in general conformity with".

……………………………………………….

Development plans: statement as to general conformity with the regional development strategy

"28.-(1) The following provisions of this Article apply where the Department of the Environment proposes to make, alter or replace a development plan for an area under Part III of the principal Order; and references in those provisions are to Articles in that Part.

. . . (6) Not later than the beginning of the period of 28 days immediately before it proposes to make an Order under Article 8(1) adopting a plan, alteration or replacement plan, the Department of the Environment shall send to the Department for Regional Development a copy of –

(a) the draft Order; and

(b) the plan, alteration or replacement plan to which the Order relates.

(7) The Department for Regional Development shall consider the documents received by it under paragraph (6) and within the period of 28 days beginning with the day on which it received those documents shall –

(a) determine whether in its opinion the relevant plan is in general conformity with the regional development strategy; and

(b) give the Department of the Environment a statement in writing which –

(i) sets out that opinion; and

(ii) if that opinion is to the effect that the relevant plan is not in general conformity with the regional development strategy, gives the reasons for that opinion.

(8) The Department of the Environment shall consider any statement received under paragraph (7) before making an Order under Article 8(1)

. . .

Miscellaneous

Status of development plans

30. In Article 4 of the principal Order (development plans) after paragraph (2) there is inserted –

"(2A) Where, in making any determination under this Order, regard is to be had to the development plan, the determination shall be made in general conformity with the plan unless material considerations indicate otherwise".

Article 4 states as follows:

"Status of development plans

4.-(1) In Article 4 of the principal Order development plans, after paragraph (2) insert –

"(2A) Where, in making any determination under this Order, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise".

(2) Article 30 of the Planning (Amendment) (Northern Ireland) Order 2003 (NI 8) (status of development plan) ceases to have effect."

Regulation 12 states as follows:

"Consultation procedures

12-(1) Every draft plan or programme for which an environmental report has been prepared in accordance with regulation 11 and its accompanying environmental report ("the relevant documents") shall be made available to the consultation body and to the public in accordance with the following provisions of this regulation.

(2) As soon as reasonably practicable after the preparation, the responsible authority shall send a copy of the relevant documents to the consultation body and invite it to express its opinion on the relevant documents within a specified period.

(3) The responsible authority shall also –

(a) within 14 days of the preparation of the relevant documents, publish in accordance with paragraph (5), or secure the publication of, a notice –

(i) stating the title of the plan, programme or modification;

(ii) Stating the address (which may include a website at which a copy of the relevant documents may be inspected or from which a copy may be obtained);

(iii) Inviting expressions of opinion on the relevant documents;

(iv) Stating the address to which, and the period within which opinions must be sent; and

(b) keep a copy of the relevant documents available at its principal office for inspection by public at all reasonable times and free of charge; and

(c) publish a copy of the relevant documents on the authority's website.

(4) the periods referred to in paragraphs (2) and (3)(a)(iv) must be of such length as will ensure that those to whom the invitation is extended are given an early and effective opportunity to express their opinion on the relevant documents. "

The Applicant's case

"Planning policy statements set out the policies of the Department (of the Environment) on particular aspects of land used planning and applied to the whole of Northern Ireland".

In the preamble the second and third paragraphs state as follows:

"The Department has produced this planning policy statement, PPS 14 "Sustainable Developments in the Countryside" to assist in the implementation of the RDS. Its preparation was informed by the publication of an Issues Paper as a consultation document, the purpose of which was to provide a framework to inform and stimulate debate around issues facing the Northern Ireland countryside.

The PPS sets out planning policies for development in the countryside and embodies the Government's commitment to sustainable development.

. . . The policies of this statement will supersede the following provisions of A Planning Strategy for Rural Northern Ireland (PSRNI) which was a planning strategy for rural Northern Ireland."

Thereafter the preamble goes on to state that:

"As a consequence the PPS will also withdraw the following designations contained in existing statutory and published draft development plans.

A flow chart on page 9 of PPS 14 records the RDS at the top of a chart feeding into development plans and also a box reading "PPS 14 and other planning policy statements prepared by DRD or DOE".

"3.1 The aim of PPS 14 is:

to manage, development in the countryside in a manner consistent with achieving the strategic objectives of the regional development strategy for Northern Ireland 2005".

It was counsel's submission that this amounted to a good definition of what was formulating a planning policy.

"A presumption against development will be operated throughout the countryside with the exception of a limited number of types of development which were considered in principle to be acceptable and details of which are set out below. No other development will be permitted unless there are overriding reasons why that development is essential and could not be located in a settlement or as otherwise allocated for development in a development plan".

"53. The proposals contained within draft PPS 14 include the replacement of a number of existing planning policies such as GBCPA1 relating to the designation of Green Belts and Countryside Protection Areas. It also proposes the withdrawal of certain designations contained in existing statutory and published draft development plans including Dispersed Rural Communities, Green Belts and Countryside Policy Areas (with some exceptions). In their place Draft PPS 14 proposes an entirely new and uniform set of planning policies which would apply across the entire (sic) of Northern Ireland outside of designated settlement limits. Even if the effect of the proposals within Draft PPS 14 would be the alteration of repeal of certain aspects of planning area plans, DRD contends that it is entitled to introduce new planning policy in this fashion, by reason of its powers under Article 4 1999 Order. The obligation set out in Articles 4-7 of the 1991 Order are imposed upon the DOE in relation to its power to make, alter, repeal or replace any particular area plan in respect of which it has exercised its powers under Article 4 of the 1991 Order. It is contended that there is nothing within the provisions of the 1991 Order, as amended, which represents a repeal or limitation of the power of DRD under the 1999 Order to make planning policy in furtherance of the implementation of the RDS".

The Respondent's case

"The nature of a planning policy is to give guidance to planners as to the general approach to be taken to regularly encountered planning problems. . . I should not parse too closely the wording of a particular paragraph of a planning policy statement in an effort to discover whether a planning decision falls four square within it. The purpose of such a statement is to provide general guidance; it is not designed to provide a set of immutable rules."

"DRD has already published some of the other planning policy statements mandated by the RDS namely PPS 12: Housing in Settlements and PPS 13: Transportation and Land Use, which were published in July 2005 and February 2005 respectively.

17. DRD is satisfied that it had statutory authority under Article 4 of the 1999 Order, to bring forward Draft PPS 14. It constitutes policy guidance and advice and/or a proposal in relation to the implementation of the RDS. DRD does not accept that Article 4 of the 1999 Order is advisory only but contends that it provides the necessary statutory authority in this respect".

Conclusions

This court will not go into the question whether the contents of PPS 14 represent good planning policy or not. That is not the role of the court. Subject to his responsibility to Parliament, Ministers will be the final arbiter of what is good planning policy Nonetheless a Minister must act within a legal framework. He must not exceed the powers given to him by the planning legislation and he must have due regard to the substantive and procedural statutory norms .If there is a lack of structure in the approach to the planning legislation it can result in an absence of clear channels within which fairness can be seen to operate.

"… if the policy is a lawful policy, that is to say, if it not a policy which is defective because it goes beyond the proper role of a policy by seeking to do more than indicate the weight which should be given to relevant considerations, then the body determining an application must have regard to the policy."

In my view had the DOE been responsible for PPS14, I would have found nothing objectionable about the fact that it stated that the provisions of PPS14 would immediately take precedence over the existing policies listed in the draft and was to be accorded substantial weight in the determination of all planning applications received thereafter.

I therefore dismiss the relief sought at paragraph 2(2) of this judgment

"As Lord Diplock explained in CCSU v Minister for the Civil Service (1985) 1 AC 374, however, the question of procedural propriety has to be looked at in light of the particular circumstances in which the relevant decision was made … I have come to the conclusion that the correct inference to be drawn from the evidence is that these proposals were put forward in order to meet a situation which has become much more urgent and critical than had been envisaged only a short time before … Accordingly I have come to the conclusion that the announcement of the proposals on 12 November did not involve any procedural impropriety nor did it deny the Law Society an opportunity which it could legitimately expect in the circumstances existing last Autumn. (My emphasis)."

I therefore dismiss the relief sought at paragraph 2(3) of this judgment

Addendum

"It is … one thing to hold that … a decision .. must in principle be reviewable, and quite another to say that the grant of (a remedy) should follow as a matter of course."

"One must face up to a choice between the high ground of purist principle and the more pragmatic, utilitarian approach which our law in practice tends to adopt."

I respectfully adopt that approach and I have applied the principles set out in the authorities mentioned above in this case.