BMAP: back to the drawing board

Following a ruling by the Court of Appeal that “impermissible” steps were taken in securing an amendment to the Belfast Metropolitan Area Plan (BMAP), the planning blueprint reverts to its draft form awaiting political consensus.

A key element to secure planning confidence in Northern Ireland remains in limbo after the Court of Appeal overruled attempts by two newly created Stormont departments to move forward with the contentious BMAP.

Although widely considered as crucial to investor confidence and local development plans, BMAP, which covers Belfast City, Carrickfergus Borough, Castlereagh Borough, Lisburn City, Newtownabbey Borough and North Down Borough Council, was first developed as a concept back in 2000.

The contention around BMAP mostly centres on restrictions on future expansion at the Sprucefield regional shopping centre in County Down, where interest had been acknowledged for the creation of Northern Ireland’s first John Lewis store.

Draft BMAP was originally published in 2004 and following a public inquiry Environment Minister Mark H Durkan issued an adoption statement in 2014. However, then Enterprise Minister, Arlene Foster sought and was granted a judicial review of Durkan’s decision stating that it breached the Ministerial Code because he did not engage with the wider Executive.

Foster was opposed to the element of BMAP which prevented expansion at Sprucefield beyond the sale of bulky goods, essentially blocking the creation of a John Lewis store. In March the High Court ruled that Durkan acted unilaterally and unlawfully in authorising BMAP.

Earlier this year recent Economy and Infrastructure Ministers Simon Hamilton and Chris Hazzard, respectively, agreed a proposal that would see BMAP adopted without the bulky goods restriction and their lawyers were granted an order allowing the rest of BMAP to be implemented.

This however was challenged by Belfast City Council, who argued that BMAP as a whole had been declared not to have been validly adopted.

On 18 May 2017, the Court of Appeal ruled that it was “no longer a matter of dispute by any principal, successor or notice party that the Minister’s decision to direct the formal adoption of BMAP was, for all the reasons clearly articulated by Treacy J, ultra vires. The purported adoption was accordingly of no force or effect; the draft BMAP remains in its entirety unadopted.”

Lord Justice Weir added: “We consider that this approach was impermissible and that the successors to the principal parties led (the judge) into error by pressing upon him the draft order for which they both contended.

“It would be for government to decide how to proceed, should it wish to revisit the adoption of BMAP, with or without amendment.”

Gary McGhee, Partner and Head of the Planning Law Team at Carson McDowell believes that there is still a hope that BMAP can be adopted once again but stresses the need for a functioning Executive.

“It’s important to note that the judgments were not critical of the content of BMAP but the process by which it was adopted
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“At a time when we don’t have a functioning Executive, investors from beyond these shores with regionally significant planning applications understandably ask who will be responsible for determining their planning applications? That has been an ongoing issue, but to now have the planning context of Northern Ireland’s capital city in a state of flux merely adds another layer of uncertainty which does little to enhance investor confidence.”

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