Flash briefing - Northern Ireland High Court rules on the status of emerging local development plans in determining planning applications

INTRODUCTION

The High Court in Belfast recently delivered its judgment in An Application by Glebe Homes Limited [2024] NIKB 42 which is of relevance to all developers and development consultants as various Councils in Northern Ireland move to adopt their draft Plan Strategies.

The crux of the case centred upon the status of Lisburn and Castlereagh City Council’s (“LCCC”) draft Plan Strategy at the time a decision was taken to refuse planning permission for two dwellings in Hillsborough – an application which had been in the system since 2018. Planning permission had previously been granted twice, however, subsequently quashed on both occasions via judicial review proceedings.

FACTS

At the time the planning application was lodged, the relevant planning policy for infill/ribbon development was CTY8 of PPS 21: Sustainable Development in the Countryside. This policy continued to apply whilst LCCC prepared its new local development plan. However, LCCC’s draft Plan Strategy (“dPS”) was adopted two days prior to the determination of the application. The proposed development was considered to be contrary to the infill/ribbon development policy contained within the Plan Strategy and was therefore refused.

Glebe Homes brought a challenge to LCCC’s decision on the basis that it failed to properly consider the original policy imposed by PPS 21. Mr Justice Humphreys, whilst dismissing the leave application on the basis of alternative remedy (an appeal to the Planning Appeals Commission was available), did consider the merits of the challenge and concluded:

“[34] It is therefore clear that even when a decision maker is considering an application in light of an extant plan, the policies in an emerging plan can be taken into account and, indeed, may have determinative weight. This will particularly be so when the emerging plan is at an advanced stage of the process and no objections have been lodged to the particular proposal under consideration.

[35] It is therefore inaccurate to suggest that the decision on the instant application would have been different on 25 September 2023, the day before the LDP was adopted, than it was on 28 September. By November 2022 the PAC had reported on the LDP and by June 2023 the DfI had issued its direction to adopt. The planning committee met and considered the application on 4 September, prior to the LDP adoption, but when the plan process was at a very advanced stage.” (Emphasis added)

Mr Justice Humphreys concluded that the “…LDP therefore has statutory primacy subject to other material considerations” and “…the draft Plan Strategy was, by that time, at a very advanced stage, having been subject to the rigours of a PAC examination and was subject to a DfI direction to adopt. The policy in question had not been the subject of any objection. The decision to proceed on this basis is unimpeachable.” (Emphasis added)

IMPLICATIONS

This is an important judgment as it confirms that if the preparation of a plan is at an advanced stage, has been through the process of independent examination, has not been subject to objection and has been subject to a Department for Infrastructure direction to adopt, an emerging plan “may have determinative weight” – this is something which needs to be considered by all developers in the preparation of planning applications in Northern Ireland and is a reminder that planning applications are determined upon the basis of the policy pertaining at the time of determination and not necessarily at the time of submission of the application.

If you would like any further information or advice, please contact Faye Phillips from our Planning & Environmental team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.