Two Stormont departments took an “impermissible” step in securing a court order which boosted attempts to secure Northern Ireland’s first John Lewis store, appeal judges have ruled.
They backed claims by Belfast City Council that a judicial colleague was wrongly led into rubber-stamping an amended planning blueprint removing a restriction on future expansion at Sprucefield shopping centre in Co Down.
Their verdict means the Belfast Metropolitan Area Plan (BMAP) remains in draft form until any future government consensus is reached on its implementation.
The framework has been at the centre of legal dispute since it was approved by former SDLP environment minister Mark H Durkan in 2014.
Arlene Foster, the DUP’s enterprise minister at the time, challenged his authorisation of a plan limiting expansion at Sprucefield to bulky goods only.
In March last year the High Court held that Mr Durkan acted unilaterally and unlawfully in authorising BMAP without first securing backing from Executive colleagues.
Consent was later reached by newly created departments on the way forward in the litigation.
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.
Their lawyers were granted an order last November declaring that the rest of BMAP could be implemented.
But Belfast City Council challenged the resolution reached, claiming it went beyond determining the validity of Mr Durkan’s original unilateral action.
The Court of Appeal heard it had been constitutionally wrong to have a judge make the order amending BMAP.
Only the administration at Stormont should deal with changes to the planning policy, the council argued.
Ruling on the appeal, Lord Justice Weir pointed out that BMAP remains entirely unadopted due to the earlier judgment.
Instead of providing retrospective validation, the Executive decided to vary the terms of a still draft plan.
It then engaged the High Court in a process to preserve the agreed provisions as though they had been validly adopted, while also asking to have the disputed bulky goods restriction struck down, Lord Justice Weir held.
He said: “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.”
The declaration should have been limited to a finding that BMAP’s adoption had been unlawful.
Lord Justice Weir added: “It would be for government to decide how to proceed, should it wish to revisit the adoption of BMAP, with or without amendment.”