Friday 7 February 2014
COURT ALLOWS CHALLENGE TO GRANT OF PLANNING PERMISSION FOR ATHLETIC STORES BUILDING
Summary of Judgment
Mr Justice Treacy, sitting today in the High Court in Belfast, allowed an application by the Ulster Architectural Heritage Society (“UAHS”) for a judicial review of the grant of planning permission to demolish a 19th century warehouse, formerly occupied by the Athletic Stores, in Queen Street Belfast and to construct a seven storey residential/retail development on the site.
In January 2010 planning permission including demolition consent was granted with the proposed new building being a nine storey block comprising retail and residential use. This permission was quashed on judicial review. The agents for the developer had submitted documents which claimed there were significant structural defects in the building and concluded that “on economic grounds it is beyond dispute that the building should be demolished and replaced”. On 1 July 2010 a revised development proposal was submitted which proposed demolition plus replacement by a seven storey building with ground floor retail units, basement car parking and 58 residential apartments.
On 2 June 2011 the demolition consent application and the redevelopment application were listed for consideration by Belfast City Council Planning Department. A request was made that the applications be deferred for consideration at a meeting with the UAHS. On 27 July the UAHS submitted a report to the Department of the Environment (“the Department”) and the developer proposing a façade retention option.
In November 2011 the Principal Planning Officer sent a report to the Minister recommending approval of the applications. In reaching her decision she took into account notes of the meeting with the UAHS, representations from UAHS including the proposal for façade retention, the response from the owner’s agents to this proposal and the outcome of the Officer’s internal inspection of the building. On 12 April 2012 the Minister gave the Principal Planning Officer authority to issue approvals for both the demolition and redevelopment applications and they were issued on 3 May 2012.
The UAHS submitted an application for judicial review of this decision contending that it was unlawful and should be quashed. It claimed that the Department’s decision to grant the planning consents was in breach of planning policy, in breach of its own stated assessment criteria and in breach of the UAHS’s legitimate expectation that such policy would be adhered to.
In considering the application, Mr Justice Treacy said that in exercising its supervisory function the judicial review court is only empowered to review whether the Department applied its policy lawfully and fairly and not to interfere with its expert planning judgment. He noted, however, that where there is a presumption in the policy the Department are obliged to have regard to that and cannot in their decision undermine it: Presumptions in policy are there to protect the overriding objectives of the policy itself and to undermine them would nullify the policy.”
The judge held that the Principal Planning Officer had erred by considering there was no presumption in favour of retention of buildings in conservation areas. Her report of November 2011 had stated that none of the options presented were economically viable but that the Department was satisfied that genuine efforts had been made to retain the building, that the proposal may result in community benefits, that the proposed development could contribute to economic regeneration in the area and that there were substantial structural defects with the site. It concluded, however, that on balance the decision to grant the demolition permission was well founded and should not be departed from.
Mr Justice Treacy commented that planning permission may only be granted by the Department whose duty is to ensure land use in the public interest adding that one of the public interests defined in planning policy is the preservation of the built heritage:
“Conservation areas are designated as such because taking the buildings together, they form an area of particular architectural or historical interest. There is a presumption in the policy that any building which adds to this interest factor should be retained. When weighing up an application for development, and particularly for demolition consent in a conservation area, the Department must have regard to the presumption in favour of retaining. Against this presumption, it must weigh all other material considerations. The Department enjoys discretion as to the weight to be given to these other considerations.”
The judge referred to a report from the planning case officer dated 25 May 2011 which set out the outcome of a group meeting earlier that day. He said that the group decision gave “determining” weight to the fact that the proposals for retention and repair were not economically viable ie the fact that the repair options submitted by the owner were insufficient to create a profit for the developer was considered sufficient to outweigh the presumption in favour of retaining the building.
Mr Justice Treacy held that where the Department is obliged to have regard to a presumption, and there are two options available to it, one which respects the presumption and one which does not, the existence of a presumption-respecting option is a very material consideration and one which must be considered and given its full presumptive weight. He said that key documents which led to the ultimate decision overlooked the existence of the presumption and none gave any or proper consideration to the presumption-respecting option that was open to the Department.
The judge considered that the Department had not applied the planning and conservation policy lawfully and fairly as it failed to properly take into account a very relevant consideration. He allowed the application.
NOTES TO EDITORS
1. This summary should be read together with the judgment and should not be read in isolation. Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the Court Service website (www.courtsni.gov.uk).
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