The High Court has quashed the planning consent granted to Oaklee Homes Group on 4th March 2015. Roger Watts of C & J Black acted for the estate of Terence O’Hare, which brought the application.
Counsel for the applicants was David Scoffield QC.
Expert planning evidence was given, on behalf of the applicant, by Michael Gordon of Turley Associates.
The planning consent concerned part of a 12.64 hectare site which had been identified for Social housing under the Belfast Metropolitan Area Plan (“BMAP”). Key site requirements for the zone included a concept statement to facilitate the comprehensive development of the site to be submitted and agreed with the Department, with a minimum of 240 dwellings to be provided for social housing.
The contentious feature of this development was that Belfast City Council, on selling its part of the zoned site to Oaklee Housing Group, retained a 1 metre wide “ransom strip” between the land sold and the neighbouring land in the zone owned by the O’Hare Estate. As noted by the Judge, Belfast City Council kept the strip so that “it could extract ransom value from those whose land formed part of the BMAP Zone and who wished to have their land developed”.
The Applicants argued that the retention of the ransom strip results an undesirable fragmentation of the zone and prejudices comprehensive development contrary to BMAP and planning policy, in particular policy QD2 of PS7, whereby a proposal for housing resulting in “unsatisfactory piecemeal” development will not be permitted, even on land identified for residential use in a development plan.
Paragraph 4.52 of PPS7 notes that comprehensive planning of new and extended housing areas is considered to be of vital importance and the piecemeal development may result in the undesirable fragmentation of a new neighbourhood and lead to a failure of secure proper phasing and development with associated infrastructure and facilities.
Paragraph 4.53 of PPS7 the Department encourages early land pooling to facilitate comprehensive development and “where this cannot be achieved and the comprehensive development of the site will be prejudiced, the Department will refuse the application.”
As part of the planning process the Department asked Oaklee to amend their planning application to show the access road extending to the boundary of the O’Hare’s land. Oaklee indicated that they were not in a positon to do that as they did not own the intervening land and they also did not accept that their proposal prejudiced comprehensive development.
The Department referred the decision to the Minister and presented him with 2 options:
- the Department reasserts its view that the boundary of the site must be extended to the neighbouring land and that if the applicant was unwilling or unable to do so then the application should be refused.
- accept Oaklee’s argument that this request was unnecessary (although this was contrary to the Department’s stated requirements and would leave the objector’s land inaccessible) and to grant consent.
The Minister opted for the second option and granted the planning consent. The Minister’s reasons for this choice have not been made public.
During the course of the Judicial Review proceedings the Department conceded that the decision making process was flawed, as proper consideration had not been given to material planning policies. It also subsequently emerged that proper consideration had not been given to road issues.
Belfast City Council, as notice party, maintained that it had acted appropriately in retaining the ransom strip and that seeking value for releasing that strip to the land owners behind was part of its duty as a Local Authority to obtain best value for its land. As the Department conceded that the planning process was flawed on other grounds the Court did not rule on this contention or on the proper application of the BMAP key Site Requirements or PPS7.
The Court’s decision focuses on the issue of remedies, on which there was a full hearing, and in particular the argument by Oaklee and Belfast City Council that the planning consent should not be quashed, particularly on the basis of prejudice to Oaklee in relation to its grant in aid, its contractual position with Belfast City Council and its contractors and delay by the applicants in bringing the application.
The Court came to the clear view that it should not depart from the normal positon, that is where a decision has been unlawfully arrived at it should be quashed. In so doing the Court noted:-
- that the provision of social housing was a matter of considerable public importance, given the social needs in West Belfast;
- there had been a substantial failure, going to the root of the Planning Authority’s functions;
- it was still feasible for the Planning Authority to decide the matter afresh;
- the issue of comprehensive development should not be resolved by an unlawful decision;
- a Declaration or other similar relief would leave the impugned planning consent in place and the Court should provide the appropriate relief;
- the applicants have a legitimate expectation that decisions affecting their interest should be taken lawfully; and
- Oaklee were aware of the arguments put forward by the applicants and the risk of a Judicial Review and prejudice to them, therefore, had to be viewed in that light.
The Court dealt with two other points:-
- it noted that the remedy of remitting the matter to the decision maker, as allowed by section 21 of the Judicature (NI) 1978, was principally intended for cases were the Court considered it was open to the decision maker simply to reconsider the decision and substitute a new one for the old one. However, that will not be the case where planning consents are involved as they confer legal rights which continue in law unless and until set aside or they expire; and
- the court gave as its view that Oaklee’s planning application should be reconsidered by the Department and not Belfast City Council, because of Belfast City Council’s own interest in the outcome.
It is unfortunate that this case necessarily involved the quashing of a planning consent for social housing but, as is recorded by the Court in the decision, the granting of the 92 social units was at the expense of jeopardising the provision of a further 148 dwellings for social housing, which BMAP and Planning Policy required to be provided.
The case was bought with the benefit of a Protected Costs Order under the 2013 Regulations and costs were awarded in favour of the applicant.