Planning Portal

Northern Area Plan 2016: DNAP SEA Judicial Review Cases

Published on Tue, 2 Sep 2008
Latest News about the Draft Northern Area Plan and Strategic Environmental Assessment Judicial Review Cases

Background

While the draft Northern Area Plan (DNAP) was published in May 2005, progress on taking it forward to an Independent Examination was delayed because of a judicial challenge from Seaport (NI) Limited (formerly Seaport Investments Ltd) in relation to the Plan’s Strategic Environmental Assessment (SEA) as required by the Environmental Assessment of Plans and Programmes (Northern Ireland) Regulations 2004 (“EAPP Regulations”) and Directive 2001/42/EC (“the Directive”).
The final judgement on this challenge, which was handed down on 13 November 2007, did not quash either the draft Plan or the EAPP Regulations.
However, court declarations were made regarding the improper transposition of certain requirements of “the Directive” and that the Environmental Report published with the draft Plan was not in substantial compliance with the “EAPP Regulations” and “ the Directive”.

The Court of Appeal

The Department lodged an appeal challenging the Court judgment on the transposition issues which declared that:
  • the designation of the Department of Environment (DOE) as ‘the consultation body’ under Regulation 4 of the 2004 Regulations does not properly transpose Articles 5.4 and 6.3 of the Directive, where DOE is also the responsible body that promotes the plan or programme;
  • the absence of appropriate timeframes in Regulation 12 of the 2004 Regulations does not properly transpose the requirements of Article 6.2 of the SEA Directive.
The appeal of the SEA Judgment in relation to above transposition issues was heard by the Court of Appeal on 2 and 3 June 2008. Following consideration of submissions by the Department and Seaport Investments, the Court of Appeal decided to refer the matter to the European Court of Justice (ECJ).
The Department has been advised that it could take up to 2 years before the case is heard in the European Court.
Judicial Review of determination of non- feasibility to undertake an SEA for the Draft Northern Area Plan
The Department issued a determination of non-feasibility for DNAP on 7 November 2007 in respect of the obligation to carry out a strategic environmental assessment of the DNAP pursuant to “the Directive” and the “EAPP Regulations”.
On 28 May 2008, the Department received notification of an application by Seaport (NI) Limited (formerly Seaport Investments Ltd) for leave to apply for judicial review into the determination of non feasibility for DNAP. A leave hearing for this application for judicial review took place on 27th June 2008. At this hearing, Mr Justice Weatherup granted leave and indicated that the case should be heard in early October 2008.
As a result of this judicial review , the Department considers that progress towards an Independent Examination for DNAP should be put on hold until the outcome of the challenge is known.
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