Information Leaflet 11: Applications raising matters relating to National Security
Applicant believes a certificate is required in relation to his application
An applicant who believes his application may be one requiring a certificate to be issued by the SoS under Article 123B will engage in pre-application discussions with the Department’s Planning Service to reach a view on whether the Planning Service’s consideration of the application in the normal manner is likely to require the public disclosure of information relating to matters of national security or the measures taken or to be taken to ensure the security of any premises or property and the public disclosure of that information would be contrary to the national interest.
Where the applicant is satisfied that the foregoing would NOT be the case, the application will be submitted in the normal way to the appropriate divisional planning office and will be processed in the same manner as other applications.
However, where the applicant considers that there would be public disclosure of information that would be contrary to the national interest, he will submit the application (without the ‘closed evidence’) to the Department (Planning Service Headquarters) and simultaneously request a certificate from the SoS under Article 123B of the 1991 Order.
Upon receipt of the application the Department will validate and advertise the application in the normal way to enable it to assess whether there are any objections or representations (necessary to determine whether a public inquiry can be dispensed with where a certificate is given).
The validation and advertising of the application by the Department normally ‘starts the clock’ on an application for the purpose of time periods specified in Article 11 of the Planning (General Development) Order (Northern Ireland) 1993 (the GDO) and elsewhere, after which an applicant can lodge a non-determination appeal (Article 33 of the 1991 Order) with the Planning Appeals Commission who will then determine the application. It is considered extremely unlikely that an applicant seeking a certificate under Article 123B would lodge such an appeal but in any event, the Planning (Application of Subordinate Legislation to the Crown) Order (Northern Ireland) 2006 (at Articles 2 – 6) has amended all relevant provisions relating to such periods to provide that the period does not start until the Department has been notified of the Secretary of State’s decision on the request for a certificate. Moreover, where a certificate is issued by the SoS the right of appeal under Article 33 of the 1991 Order no longer applies (Article 123B (4).
The request for a certificate must be submitted to the SoS in writing and must contain:
- a copy of the application submitted to the Department;
- a written statement setting out the grounds on which it is considered the certificate should be issued;
- an explanation of the information, the public disclosure of which would, in the view of the applicant, be contrary to the national interest.
The SoS will:
- acknowledge receipt of the request;
- notify the Department of the request and the date by which representations must be received.
The Department will provide the SoS by that date (unless it is extended by the SoS) with documentation relevant to the request including the application and any representations made in relation to it.
The SoS will inform the Department and the applicant of his decision. In doing so he is not required to give reasons for his decision where that would result in the public disclosure of information that would in his view be contrary to the national interest.
Should the Secretary of State refuse to issue a certificate, the applicant will have to consider whether to withdraw his application. Where he decides not to do so, the application will be referred to the relevant divisional planning office for processing to be completed in the normal way.
Where the Secretary of State issues a certificate and there are objections and representations in relation to the application the Department will arrange an inquiry for the purpose of determining it.
The procedure at an inquiry required as a consequence of a certificate issued under Article 123B is provided for in the Planning (Inquiry Procedure) Rules (Northern Ireland) 2006 (S.R. 2006 No. 213).
It is anticipated that in these circumstances the applicant will request the Secretary of State to direct under Article 123A (2) of the 1991 Order that at the inquiry, “evidence of the description indicated in the direction shall only be heard or, as the case may be, be open to inspection at that inquiry or examination by such persons or persons of such descriptions as he may specify in the direction”. The procedure to be followed by the Secretary of State before he gives a direction and the functions of ‘appointed representatives’ are provided in the Planning (National Security Directions and Appointed Representatives) Rules (Northern Ireland) 2006 (S.R. 2006 No. 215).
Provision is made in the Certificate Rules that where a document is to be provided in writing it may be done electronically - see relevant definitions and provisions in Rule 1(3)-(5).