The High Court was wrongly drawn into making an order that boosted attempts to secure the first John Lewis store in Northern Ireland, senior judges heard today.
Lawyers for Belfast City Council claimed judicial “rubber-stamping” of an agreement reached between two Stormont departments on a major new planning blueprint should be quashed.
They are appealing the outcome of a legal action which resulted in the lifting of a restriction on future expansion at Sprucefield shopping centre in Co Down to bulky goods only.
In November last year a judge declared that the rest of the Belfast Metropolitan Area Plan (BMAP) could be implemented.
It followed an earlier ruling that former SDLP Environment Minister Mark H Durkan acted unilaterally and unlawfully in authorising BMAP without securing consent from Executive colleagues.
Mr Durkan’s approval of the planning framework adopted in 2014 had been challenged by the DUP’s Arlene Foster, the Stormont Enterprise Minister at the time.
But consent was later reached by newly created Departments on the way forward in the legal action.
Simon Hamilton, the DUP Economy Minister before power-sharing collapsed, and Sinn Fein Minister for Infrastructure Chris Hazzard, agreed on a proposal to have BMAP adopted without the bulky goods restriction.
In a further twist to the saga, however, Belfast City Council is now challenging the resolution reached.
Stewart Beattie QC argued in the Court of Appeal today that it was constitutionally wrong to have a judge make the order amending BMAP.
Only the administration at Stormont should deal with changes to the planning policy, he contended.
The barrister said: “This is an issue to do with the democratic process and how the Executive deals with matters.
“It should get on with political decisions, it should not involve the court in rubber-stamping BMAP.”
He also claimed it could set a precedent for other local authorities to mount legal challenges over planning decisions.
During the hearing Lord Justice Weir repeatedly questioned why the High Court judge had been “prevailed upon” to make the order.
In a reference to the amount of litigation over Sprucefield, he also commented: “The amount of ink spilled on this case by the various parties is prodigious, even by the standards of the Northern Ireland Bar.”
Pressed on why the courts were being drawn into planning policy, counsel who brought the original challenge on behalf of the Enterprise Minister said it had been to provide certainty for the public.
David Scoffield QC added that it was to ensure the bulky goods restrictions at Sprucefield, adopted without Executive approval, was not allowed to remain in place.
Tony McGleenan QC, who represented Mr Durkan in the original case, contended that interfering with the order would “unwind” agreement reached between the departments.
“We may have no Assembly for some period; there are too many imponderables,” he added. Reserving judgment on the appeal, Lord Justice Weatherup pledged to give a decision as soon as possible