The High Court decision to quash the GAA’s planning consent for a 38,000 all seated stadium, at Casement Park, Andersonstown Road, Belfast is the culmination of a three year campaign by residents to protect their homes and neighbourhood from the inappropriate scale of this proposal.
Roger Watts of C&J Black acted on behalf of the residents through the Mooreland & Owenvarragh Residents’ Association, which represented over 170 households in the immediate vicinity of the Casement Park site in West Belfast.
David Scoffield Q.C. was retained as Senior Counsel and provided pre-action advice, as well as presenting the case in Court for the residents. The case ran for 13 days and is thought to be the longest planning judicial review, if not one of the longest judicial reviews, ever heard in Northern Ireland.
Community Places provided planning advice and assistance throughout the course of the planning application and expert evidence for the legal challenge.
Hoy Dorman Limited provided expert evidence on roads issues, in support of the case.
As the hearing was expedited, the case took approximately 8 months from our initial instruction until the Court ruling.
MORA residents have made it clear throughout these proceedings that they are not opposed to appropriate re-development of the existing sports ground. They would support a modern stadium with a capacity of 20,000-25,000 and believe this to be the most that the neighbourhood and supporting infrastructure can accommodate. Many of the residents are members of, or otherwise support, the GAA and its sporting and cultural objectives.
The £77.5m GAA stadium proposal, which was to be subvented by approximately £62.5m of public funds from the Department of Culture, Arts & Leisure, was found to be unlawful on the following grounds:-
A. In assessing the environmental and, in particular, the traffic impacts of the proposal it was impermissible for the Planners to assume or accept a fall back position or baseline position of a spectator capacity of 32,600 for the existing sports ground – both as a matter of the domestic law of Northern Ireland and European Union legal obligations. Whilst the existing sports ground has a Safety Certificate for a maximum of 31,661 spectators, the planners had failed to ask whether there was any prospect of Casement Park, in its current condition, ever hosting a game with an attendance of 32,600. The Court concluded that had the planners done so they would almost certainly have “answered it in the negative.” Given the lack of investment in and the run down state of Casement Park there was no prospect of it holding matches with this level of attendance.
It was therefore improper to assess, for example, the traffic impacts of the new stadium as only involving an additional 5,400 spectators when it was clear that this bore no resemblance to the reality of the traffic impacts that the proposal would in fact generate.
The event the GAA chose to use as the starting point for its assessment of traffic impacts had an attendance of slightly less than 19,000.
B. Police had raised a wide range of concerns in relation to 38,000 capacity crowds, traffic congestion, access for emergency services, the police resourcing required, parking etc. Their view that “capacity crowds at the new Casement Park could bring traffic chaos in their wake together with other associated risks and problems” was not taken into account. These concerns, which included ‘right to life’ issues, were not relayed to the Minister when making the final planning decision.
C. There was a further failure to comply with the Environmental Impact Assessment Regulations, as important non-sporting uses and activities such as bar and restaurant use, the provision of conferences, car-parking and community facilities were simply not assessed.
D. There was a further misrepresentation to the Minister in that he had been told that there was no evidence to suggest that best practice would not be exercised in the management of the Japanese Knotweed problem, known to exist within and along the eastern margin of the current sports ground. This was in fact, not the case as the proposed treatment of Japanese Knotweed did not and could not comply with current best practice.
E. The Environmental Statement failed to adequately set out mitigation measures for dealing with asbestos known to be within soil due to be disturbed or removed during the construction process. The Court confirmed that it is not realistic to expect an Environmental Statement to set out every scrap of environmental information and that some matters can be left over to be dealt with after planning permission is granted. However, it was not permissible to take this approach in this case because of the very real health risks created by the disturbance of asbestos and because the failure to give sufficient information about mitigation measures precluded residents from taking part in the debate about mitigation measures in relation to this important matter of concern to them, before the planning consent was granted.
The Court considered that the breaches concerning Japanese Knotweed and asbestos were of a lesser order than the others.
Most if not all of the successful points had been raised with Planning Service before the consent was granted, by the residents or by Community Places on their behalf. Moreover, this was a high profile and publicly funded project which had undergone extensive pre-application discussion between Planning Service and the developer. Therefore, the range, scale and nature of the unlawful aspects to the consideration and granting of this planning consent are a matter of particular concern.
The Court did not uphold the residents’ complaint that it was unlawful for a public inquiry not to have been held prior to consent being granted. However, given the range of matters that ought to have been considered but were not and the nature of the information that did not reach the Minister, the call for a public inquiry for any new development proposal would seem to be all the more compelling.