How will Northern Ireland's planning system progress with the 'New Decade, New Approach' agreement?

The ‘New Decade, New Approach’ agreement (the Agreement) published by the UK and Irish governments was endorsed by Northern Ireland’s political parties. It means ministers are now back in charge of each department. 

Having ministers back in place should give developers and investors a sigh of relief. As before,The Department for Infrastructure (DfI) can now make final decisions on regionally significant planning applications. 

What does the Agreement say about infrastructure? 

The UK government has committed to infrastructure funding to enable the NI Executive to invest in a range of potential capital projects. These include:

   
• Essential sewage investment (Living With Water Programme)
   
• 'Better Connecting Dublin and Belfast's strategy
   
• A5/A6 roads
   
• York Street Interchange
   
• Narrow Water bridge
   
• Medical School in Derry/Londonderry, subject to the NI Executive’s approval of the project.

Up to £75 million has been promised up to 2022 for the A5 road scheme in the Agreement. With Nichola Mallon now in place as the DfI Minister, it’s expected that major infrastructure projects, like the A5, will rise to the top of her portfolio. 

Speaking on the first day of her ministerial post, she said, “Having a modern and sustainable water, drainage and transport infrastructure is essential if we are to grow our economy and improve the lives of everyone” . This recognition of the need for urgent investment in wastewater infrastructure will be welcome news for developers and local authorities working to keep up with demand for growth. 

The Agreement also sets out that the NI Executive will advance with plans to complete both the Regional and Sub Regional Stadia Programmes, including Casement Park. Deidre Hargey, the new Minister for the Department for Communities, has already attended a meeting to discuss the future plans for the Casement Park project. It looks like major applications that have been in the pipeline for a long time will regain momentum.

There is also support in the Agreement for city deal packages for Derry & Strabane and Belfast and the bids being developed by Mid-Ulster, Armagh City, Banbridge and Craigavon, and Fermanagh and Omagh Councils. The Irish government has also committed to jointly funding cross border investment and to work with the NI Executive and UK government to achieve greater connections on the island – by road, rail and air. 

Many challenges still remain, not least the backlog of planning decisions. Nonetheless, having Ministers back in the NI Executive is certainly progress towards having final decisions on many regionally significant projects across Northern Ireland. 

What does the Agreement say about the environment? 

The NI political parties recognise the need for a coordinated approach to the challenge of climate change. To that end:

   
• The Executive’s strategies to reduce carbon emissions will be reviewed in light of the Paris Climate Change Accord and the climate crisis.
   
• A new Energy Strategy will set ambitious targets and actions for a fair and fitting transition to a zero-carbon society.
   
• The Executive should bring forward a Climate Change Act to give environmental targets a strong legal underpinning.
   
• The Executive will establish an Independent Environmental Protection Agency to oversee this work and ensure targets are met.
   
• The Economic Strategy will support clean and inclusive growth and create jobs as part of a Green New Deal
   
• The Executive will create a plan to eliminate plastic pollution.
   
• RHI will be closed down and replaced by a scheme that effectively cuts carbon emissions.

Having this new agency in place to ensure compliance with environmental targets is significant given that the UK government is working towards creating a new independent agency after Brexit. The Office of Environmental Protection would replace the supervision provided by the EU, which could potentially extend to Northern Ireland. 

The ambitious targets and focus on a carbon neutral society reflects the approach of other governments. As Northern Ireland is three years behind the curve, these matters are expected to be prioritised and dealt with as soon as possible.   

Edwin Poots has been appointed as the new Minister for the Department for Agriculture, Environment and Rural Affairs (DAERA) and stated on his first week in office: “My focus will be on ensuring we have sustainable agri-food, fisheries, forestry and industrial sectors; prioritising a clean, healthy environment, benefiting people, nature and the economy and enabling a thriving rural economy”. He also stated that reducing Northern Ireland’s carbon footprint was his number one priority.

Innovation and technology that reduce emissions and boost farming efficiency could become integral if the agricultural sector is to become more sustainable. 
DfI Minister Mallon has decided to travel by e-car and stated that she would like to increase e-charging points. What we are likely to see is an emphasis on more sustainable transport and infrastructure given the tone of the Agreement and the minister’s vision.

Context of backlog of planning decisions

The consequences of the Northern Ireland Court of Appeal decision in Buick’s application as Chairperson of NOARC 21 [2018] NICA 26 had major implications for NI decision making in the absence of an executive. 

DfI’s Permanent Secretary approved an energy from waste project at Hightown Quarry in North Belfast. A local objector group, "NoArc21", brought an application for judicial review against the decision, fronted by its chairperson, Colin Buick. Unusually for a planning related judicial review, the challenge focused solely on a fundamental constitutional law issue – the absence of a minister. As a result, no civil servant could make the decision to approve the application.

The Court of Appeal ruled that civil servants couldn’t approve the decisions that would normally be put before a minister. With no minister in place, decisions were put on hold.
 
Although the UK government enacted legislation under the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 to support NI departments by overseeing ‘ministerial’ decisions, a backlog of planning applications remain. 

Following Buick, the High Court quashed the decision to proceed with the A5 road scheme upgrade, because the DfI approved the case in the absence of a minister. The High Court also overturned the approval of the North-South interconnector for the same reason. 

The Agreement is only the first step towards running an effective executive but all eyes are now on Stormont to find out what lies ahead for the future of planning in Northern Ireland. 

Read the full Agreement.

TLT’s Belfast-based Planning, Environment & Clean Energy team advises on all aspects of planning and environmental law in Northern Ireland and are qualified in Northern Ireland, England & Wales and the Republic of Ireland. 

For more information, contact Andrew Ryan or Sarah Mulholland.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.