High Court of Justice in Northern Ireland Queen's Bench Division Decisions

The Planning Application

(a) the claim that the proposal was contrary to various planning proposals including the Regional Development Strategy ("RDS") Planning Policy Statement PPS5, the Lisburn Area Plan 2001; and the Rural Strategy for Northern Ireland;

(b) alleged detrimental impact to Lisburn City Centre, Belfast City Centre and other centres;

(c) alleged increased traffic and associated traffic problems;

(d) the fact that the proposal was out of keeping with its semi-rural environment with detriment to the landscape; and

(e) prematurity on the ground that the decision was in advance of a redraft of PPS5 and the publication of the Belfast Metropolitan Area Plan ("BMAP").

The view was taken that given the scale and nature of the proposal and the impact of the various planning policies in play the proposal would impact on a number of centres within the catchment area. The site was technically still in a green belt zone as defined by the Lisburn Area Plan 2001 and the Belfast Urban Area Plan. Officials within the Department considered that the proposal was a substantial departure from the development plans for the area.

(i) involve a substantial departure from the development plan for the area to which it related;

(ii) be of significance to the whole or a substantial part of Northern Ireland;

(iii) affect the whole of a neighbour; and

(iv) consist of or include the construction, formation, laying out or alteration of a means of access to a trunk road or of any other development of land within 67 metres of the middle of such a road or the nearest part of a special road.

By notice made under article 31 the Department applied art. 31 to the application.

The Departmental Opinion

The Garvey Report

"It is recommended that a Notice of Opinion to refuse outline planning permission should be issued on the grounds that

(1) The proposal is contrary to the Joint Ministerial Statement of 31 January 2005 on the grounds of prematurity, and the Draft Belfast Metropolitan Area Plan has reached an advanced stage of preparation and the effect of an approval for this proposal at Sprucefield Regional Shopping Centre, because of its scale and nature, would be prejudicial to the outcome of the plan process by pre-determining decisions about the scale and location of new development which ought properly to be taken through the development plan process, particularly in view of the statutory obligation that development plans be in general conformity with the Regional Development Strategy.

(2) The proposed development would be contrary to Planning Policy Statement 5 (PPS5): Retailing and Town Centres, in that the proposals would, if permitted, have an adverse impact on the vitality and viability of Belfast City Centre, Lisburn City Centre, Craigavon town centre and Banbridge town centre and thereby undermining their comparison shopping function."

(i) in Belfast City Centre 9% - 12%;

(ii) in Lisburn 13.69% - 14.66%;

(iii) in Banbridge town centre 12.56% - 13.4%;

(iv) in Craigavon town centre 10.67% - 11.9%; and

(v) in existing Sprucefield 6.2% - 11.54%;

Ms Garvey considered the degree of impact to be significant in the context of the information available on the vitality and viability of the centres.

"8.80 Article 31(2) empowers the Department to ask the Planning Appeals Commission to hold a public local inquiry for the purpose of considering representations on the application. The alternative is to serve a Notice of Opinion on the applicant indicating the decision which the Department proposes to make on the application.

8.81 The key test for the Department in deciding the process route is whether a public local inquiry is necessary to provide a forum for presentation and consideration of objections rising from the representations received and which need to be assessed to allow the Department to determine the application. In this case, it is considered on balance that an article 31 public inquiry is not required to consider representations on the application and that a Notice of Opinion should be issued at this stage." (Italics added).

"9.1 It is accepted that the proposal complies with regional policy in relation to development along the Belfast/Dublin corridor and would result in a significant inward investment and job creation. It also is accepted that certain regional policies are supportive of development of this type and that the proposal does not fail all the tests in PPS5 paragraph 39 as detailed above.

9.2 However, determining weight must be given to the policy failures which also are detailed in section 8 of this report. The likely significant adverse impact on the proposal on the vitality and viability of Belfast City Centre, Lisburn, Banbridge and Craigavon and the undermining of their comparison shopping function leads to the conclusion that a refusal of permission should be issued.

9.3 The proposal is premature in terms of paragraphs 20(a) and 20(b) of the Joint Ministerial Statement and should be refused for this reason.

9.4 There are no other issues of concern arising from the consideration of the application to date. "

Planning Service's Management Board Assessment

"(iv) a major planning application for retail development (to include a John Lewis store) at Sprucefield near Lisburn."

The Ministerial Decision

"The site is very substantial and contains several retail outlets and its use could by no means be classified as only being bulky goods.

I have considered both the planning points and the clear under-performance of Sprucefield. There are economic and social development aspects to the application regarding its location, the future redevelopment of the Maze site as well as employment prospects which are positive.

Given the applicant (the developer) is also a major developer in the city centre and the major proposed retailer (John Lewis) has clearly stated it is Sprucefield or no other site in Northern Ireland, it seems to me that the aims of the developer have to be consistent with seeking success of both city centre developments as well as Sprucefield.

The site is clearly not isolated as the visit indicated. The site is the designated regional site in Northern Ireland and it deserves to succeed. To do this it needs to grow in users. Do we want a John Lewis store in Northern Ireland and would the location of Sprucefield be the best location for the store and is it consistent with the use of the site. John Lewis says yes to the first question I say yes to the second question.

I presume the normal developer contribution to required infra-structure will be obtained to assist both in moving round the overall site as well as entering and leaving in an orderly fashion. It cannot be ignored that the developer is bringing to Sprucefield and hence Northern Ireland a major new entrant to retail which has attraction for both Northern Ireland and trade from the south. The new entrant will increase competition and choice in the retail sector for Northern Irish citizens.

As for the other retail outlets planned as part of the application it is not for me as Planning Minister to stipulate, but for the whole ministerial team to highlight the desire in attracting as many other entrants into the retail sector in Northern Ireland as possible. That Sprucefield should have a broader base of outlets has clearly been agreed in the past given the mix there presently. I cannot ignore this as Planning Minister.

Taking into consideration the wider issues in addition and supplementary to the planning issues relating to Sprucefield and those who have already invested there I genuinely believe it is in the interests of the people of Northern Ireland that this application be approved."

"2. The Minister stated that his main purpose in reaching his decision had been to seek the best decision for Northern Ireland and that he had done so by giving different weight to some of the aspects of the application compared to that attached by the Planning Service. He also referred to looking at wider aspects than could be considered by the Planning Service. He said that he would write to Stephen Peover to confirm his further thoughts.

3. Ann Garvey confirmed to the Minister how the application would now proceed to a Notice of Opinion and that third parties will be made aware of the NOP. The only aspect of the application that is reserved is landscaping; Ann confirmed that further work will be carried out to the roads layout and discussed the car parking arrangements when the proposal is built. The final version of the NOP may take two weeks to prepare as the Roads Service will need to provide conditions for the NOP. After discussion, the Minister agreed to Brian Kirk's suggestion that a press conference would be required due to the level of interest."

"I have read the planning reports in full and have carefully considered the advice and recommendation from Planning Service. While I fully understand and acknowledge the planning context in which that recommendation was formed as set out in the detailed reports, and while, in what is a finally balanced judgment, there are one or two instances where I would attach different weight, principally in the areas of under-performance of Sprucefield and the retail impact of the proposal, I consider that there are countervailing and overriding factors, as noted in my minute of 22 May to the Secretary of State which have led me to a different conclusion on the application. Ministerial colleagues endorsed this conclusion when we met on 23 May 2005.

In addition to the planning considerations the overriding arguments turn on economic and social gains from the development and the benefit of attracting a greater range of choice in retailing into Northern Ireland even though I understand that the name of the high profile tenant for the department store cannot be given weight in terms of planning policy. In considering these arguments I am mindful of the policy context and of the matter set out in the Planning Service Report, particularly in relation to prematurity and the draft Belfast Metropolitan Area Plan. It is clear to me however, that there is a time limited opportunity to realise these benefits and it is my considered opinion that, exceptionally, a significant investment proposal of this nature should not be lost to Northern Ireland at this time. As I have already said, therefore, I approve the application.

In doing so I recognise that it would be an option for me to have the issues considered at a public inquiry. The need for such an inquiry was addressed in the Planning Services submission which concluded, in the context of a recommendation to refuse, that it was not required. I have also considered the issue again in light of my conclusion and I am satisfied that a public inquiry is not necessary to inform my decision to approve."

The Minister's Announcement and Interview Comments

"Environment Minister, Jeff Rooker, today announced his intention to grant planning permission for a major development at Sprucefield, which is expected to include the John Lewis Department Store as anchor tenant.

Jeff Rooker said:

'I am convinced that a decision to approve is in the best interests of the people of Northern Ireland. There are very positive economic and social benefits associated with this proposal in the overall public interest. John Lewis is a major name in retailing and its entry into the Northern Ireland retail sector represents further choice for the Northern Ireland consumer and compliments the retail experience on offer in other centres.

I am also convinced that this proposal will allow the Sprucefield Regional Shopping Centre to better fulfil its regional role. It is uniquely situated in terms of the strategic transport network and will attract shoppers from a wide geographical area. I was also mindful of the broad base of outlets already approved at Sprucefield.'"

? We have been able to secure John Lewis Partnerships involvement in Northern Ireland against stiff opposition from Dublin. Be under no illusions, if they had not come here they would have gone south and that would have been very bad news for us all.

? The JLP brand name will help us attract even more shoppers from across the border – we will be upgrading the road between Dundalk and Newry to a dual carriageway over the next three years to make it easier to get here. The road upgrade effectively gives us a motorway from Dublin to Belfast.

It was anticipated that the Minister would be pressed about Belfast's opposition to the further development of the Sprucefield area and that he would be accused of damaging Belfast City Centre and Lisburn City Centre. The bullet point lines to be taken were stated thus:

? We are offering shoppers more choice, just as the new Victoria Square development in Belfast City Centre will offer even more choice when it is complete, including House of Fraser, another major company giving us a vote of confidence. And let's remember, there are other exciting opportunities for Belfast, not least in the Titanic Quarter.

? Would the public really understand if we lost the JLP to Dublin. I find it hard to believe Belfast would want that instead of having to travel 100 miles to Dublin to visit John Lewis shops, the development is on their doorstep. Not only that with road improvements giving us what will be virtually a motorway from Dublin to Belfast we'll be able to attract shoppers not just to Sprucefield but to Belfast as well giving a boast to the overall economy here. Isn't that one of things we are all supposed to be working for.

(a) "I'll just state briefly just to make an announcement regarding a planning application, as has been said on one of the new ministerial teams that planning's in my remit amongst a host of other issues and one of the big issues that come on my desk following the general election was the issue at Sprucefield and the application for development there which contains a John Lewis store and I'm just taking the opportunity today to make the announcement that I've decided that that planning application should be approved and go ahead and I sincerely believe that it is in the wider interests of the people of Northern Ireland that we have that development bringing a major new entrant quality in both the goods and strapulations(?) (sic) a different kind of employment practice in many ways, it's the largest workers' co-op I think in the country although there may be others that might dispute that and John Lewis has got an excellent track record. Now the developer is an extremely large developer and of course he is also associated with developing in the centre of Belfast and has got economic imperative to make sure of every success in all their developments. There's an interest of course of a brand new entrant into the retail marketing in Northern Ireland which I think is important bringing greater consumer choice and a degree of competition which I think is always to be welcome. There are many issues relating to the site itself, I visited the site, I'm not a expert either on planning or on retailing but basically the decision is there to be made and rather than sit on it it seemed to me overall an absolute no-brainer given the economic social implications of the possibility of as I say a major new entrant into Northern Ireland but it might possibly be lost if decisions were made in another direction. That wouldn't suit anybody…"

(b) "… The paperwork is quite voluminous, it's balanced, on balance I came down in favour of the decision to see that this entrant into the market in Northern Ireland had the opportunity to the site that they chose. I mean, this is their choice as it were, not the Government's, so there will be all kinds of assessments relating to other areas whether it be Lisburn itself or indeed Belfast itself. On the other hand, one can never be absolutely certain when you've got a brand new entrant into the market of such substance that John Lewis hopefully bringing in as the developer (sic) I think has made clear as well that their intention is to make sure they get as many new entrants into the retail market in Northern Ireland as possible on that site so it isn't a question of displacement so, all in all there is a big push for an environment in jobs, quality consumer choice and competition which far outweighs any of the possible downsides that can arise so these things have to be weighed up."

(c) "I freely admit the argument was in a narrow planning sense was not to go ahead, was to refuse it."

(d) "You've got to take it in the round on the one hand, you've got a developer with a customer and in that sense a large retailer that wants to come to Northern Ireland. No. 1, they have chosen a site to make a planning application for, that's the one that's on my desk, it isn't another site that's on my desk, this one and they've made it as clear as they can that (a) they want a non-delayed decision, well it's been around since last summer, people you know how got to be assessed properly. It's been with ministers a short time so delayed by the general election but that's quite normal as would happen anywhere else but on the other hand also making it clear by the way that they've got an expansion programme that they want to fit Northern Ireland into and here's an opportunity of a site with a developer ready to go and this is the site they chose. You can't suddenly say well if I say no because of this they'll walk away that would be bad therefore I've got to say yes. That wasn't the argument that went through my mind because otherwise you would be charged with having a gun held to your …. you've got to take it in the …? I don't think the developer or the applicant are the kind of quality of developer but you know would operate at that unprofessional level in that sense. They've make it clear they've got a site, they've got a developer and they've put an application in for a site. They haven't put in for another site and I have to work on the basis that that's the site they've put in for …"

(e) In response to the question 'Is it possible for policies in England to curb the expansion volumes to town centres, it is likely this application would be approved in England is that your opinion that it would have been passed over there?' The answer given was 'Well, it would depend where it was in the sense that we're not talking about at Sprucefield a piece of green field land in the middle of nowhere with nothing on it. We're not talking about that. We've got to look at what we've got there and then you take that into account. If you were saying would this happen if it was on a green field site ten miles from the nearest development, no infra-structure, no road nearby you'd have different considerations and you can't I'm no going against the arguments about would we have done this, England first of all it's different planning laws in England with different planning policies in England."

(f) "There is a uniqueness about this site that cries out for at least it being made to work. Now someone comes in a developer wants to put their money and a retailer wants to put their money and their massive investment creating hundreds probably jobs in four figures, a brand new entry that is not already here so it is not a displacement for that particular retailer well we've move out of that town because we don't like or the city whatever we'll go to this site. That isn't the case here. You've got something that's brand new and that's added value to the retailer element in Northern Ireland. You've got to take those factors into consideration."

(g) In relation to the question of a public inquiry the Minister said "Well there could be arguments but to be honest in what I've read in terms of the paperwork that came to Ministers and the extra paperwork I have to see and the visit I make to the site, I'm not convinced in my own mind and I have to say taking everything into consideration that a public inquiry would have brought out anything new that anybody didn't already know, would have changed the nature of the questions that you're asking this morning or indeed would have changed the nature of the decision at the end of the day and I thought given the timeframe we're working to and I'm not up against it you know I didn't feel as though I was up against a time frame but I can see it from what I had read that this had been around for a while. It had not been on Ministers' desks that long but it did cry out basically for a quick decision simply because the nature of the site, the programme of new sites or new expansions for the particular retailer concerned elsewhere and a window of opportunity which was there to grab the people of Northern Ireland and I've been around as I say taking all the things into consideration, it seemed to me that that would be the best decision to make and to make it quickly as possible which is why I wanted to do you know as quick a visit to the site as possible."

(h) The question was put in the following terms:

"Angela Smith was asked in the Commons earlier this year about David Livington, what was her Department's policy for the proposed Sprucefield store, she said planning officials would be guided by the draft Belfast Metropolitan Area Plan which proposes that Belfast City Centre is promoted as the leading shopping centre in Northern Ireland. The draft planning blue-print also calls she said at the time for Lisburn City Centre and other town centres in the greater Belfast area be the main pulpit of retailing development. How can that be reconciled with what you've announced today?" The Minister's answer was:

"I don't think there's a difficulty about that. I think Belfast City Centre is the major retail centre in Northern Ireland but the fact of the matter is no decision had been made on this application. Sprucefield was there. The application ended up on my desk…

I spent 27 years as an MP in Birmingham and I am not claiming any great credit for that but I did over that period come across lots of issues where developers and constituents would make a case relating to planning applications which would raise some competition fears dressed up as planning arguments. Now you know I have to be mindful of that and in this case I'm not saying well I don't think anyone is saying all new retail developments should go to all one city and all one site and I wouldn't say that whether it was Sprucefield or Belfast City Centre. No one's arguing that the major …"

In pointing out the improved Belfast to Dublin road the Minister went on to state:

"This will facilitate shoppers from all over the island of Ireland to Sprucefield which might not be the case if it was located elsewhere and that's one of the things of a magnet store. A magnet retailer bringing in others where the proof of the pudding will be in the eating. I accept that but the track record of this particular retailer is such that we know it's a magnet in places in England where they've developed and it will be equally so here I'm absolutely confident of that."

(j) Asked what guarantees there were that the 29 smaller stores would not be displaced they would not be coming out of Lisburn centre or Belfast centre the Minister said:

"No if I could do that I would but I think that would be something that would be beyond my legal powers but I think its implicit being some of the arguments of the developers that their intention is to use the magnet of the big entrant to get as many new entrants in those 29 as possible. Now it can be done, I mean much to my astonishment when the Bullring shopping centre redevelopment shopping was opened in Birmingham… and the big Selfridges arrived I saw this board there were 61 new retail entrants in the Bullring shopping centre new to Birmingham. I couldn't believe there were 61 that weren't already there. It is absolutely astonishing so the range of people all came in behind a new magnet developer in a if you like something that is prepared to put their money and their reputation of course into a development. The potential is enormous to drag in new entrants and its also in the developers interest to do that. Of course the developer being involved in both Sprucefield and Belfast City Centre to be sure that one compliments the other rather than one does not damage the other. It's their commercial best interest to make sure both are a success.

(k) Asked why he had announced the decision before the new PPS5 proposals on retail planning had been published the Minister said:

"Well PPS proposals on retail planning had not gone through the system. The honest truth is, I'm trying to give you the honest truth anyway, it's arrived on my desk although I'm not essentially the Minister who would deal with that for reasons of responsibilities amongst the ministers and interest amongst the ministers. It's not sufficient in my view but I've to do a lot of work on it because it was literally only last week Thursday I think it was that it was agreed that it would come from one Minister over to me so I physically got it on my desk this morning of what I know about it. The fact of the matter is the wider considerations of what was involved in this planning application I don't think would have been outweighed by what's in the draft PPS5."

(l) Asked whether in the form that it was at the moment the new PPS5 was compatible with what the Minister was doing his response was:

"Well it doesn't matter cause I haven't first of all it hasn't been gone through. The fact of the matter is whatever is in PPG5 (sic) or whatever ends up in PPG5 would not be compatible (sic) and secondly the wider considerations I don't think would be negative (sic) by what's in the PPG5 either in draft or in its final form."

(m) In an interview on BBC Radio Ulster with David Dunseith Lord Rooker said inter alia:

"(i) The officials' advise and the Ministers decide and on balance, with the overriding social and economic issues at interest here and the possibility of a major new entrant into the retail market of a magnet nature, not just someone who's already here but someone who will also attract other new entrants into the market, this has to be good news for the people of Northern Ireland and those wider interests, if you like, have to be balanced against the other interests. Not say that one is more important than the other but when one looks at the overall package of plusses there are far more plusses for the people of Northern Ireland than there are minuses. That's why on balance I came down to that reason for the decision.

(ii) I'm not the developer, I'm not putting my money as it were there, but I, the decision has been made, the applicant has been informed and I hope and pray for the reasons I gave earlier this morning that they would be on site as soon as possible. The store opened I think its planned for 2007."

(iii) In response to the question that 'there was a feeling that a big department store like John Lewis saying that they want to come to Northern Ireland, people rub their hands together and say 'goody goody' lets do everything we can to get them in, everything else goes by the board so to speak', Lord Rooker's response was:

"I fully accept that people would say that and think that but that is not the case. Genuinely the case here, each application has got to be looked at on its merits, it is not a green light for anyone else. It is not as though there is no consideration given to the infra-structure network, it is the policy of having three regional centres and also to the desire of the applicant. Also one has to look at this, this is a flagship new retailer who is prepared to come and invest in Northern Ireland, wants to invest in Northern Ireland, so it is only right that we should look for reasons to help rather than hinder consistent with our overall policy framework and given the fact that Sprucefield was there, given that its there like it is now, its not as though there is only one shop on it. The road network is there, the road network is being developed in the next three years all the way to Dublin. It means that people will be coming to shop in Northern Ireland from the southern areas, that has got to be good, it is good for jobs, it is good for the people of Northern Ireland believe you me."

The Art. 31 Notice of Opinion

The Art. 122 Agreement

•    It is acknowledged that the proposal has some impact on Belfast, Lisburn, Craigavon and Banbridge in terms of the diversion of trade when judged against the relevant policy tests in PPS5. However when considered against other material factors listed below the balance of weight is in favour of approval.

•    Other elements of planning policy support the proposal. PPS5 paragraphs 5 and 6 refer to maintaining an efficient, competitive and innovative sector assuring choice and flexibility in terms of retail provision. The proposal also complies with a number of other policy tests in PPS5. The RDS policy ECON1 related to the development of the Belfast – Dublin corridor and TRAN1 relating to enhancing accessibility to regional facilities and services support development at Sprucefield. Similarly, development at Sprucefield is broadly compatible with RDS policy SRC2 which seeks to increase links with neighbouring regions and capitable on trans-regional opportunities in policy SRC3 which seeks to foster patterns of development supported to community cohesion by revitalising the role of town centres and other common locations well served by public transport as vocal places, centres and other common locations well served by public transport as vocal places for shopping services and employment.

•    Sprucefield is designed as the other out of town regional shopping centre in Northern Ireland which services a wide catchment.

•    In terms of current type and scale of retail development at this location it is considered the proposal is consistent with the use of the site.

•    Sprucefield is currently under-performing in its role as a regional centre.

•    New retailers locating at Sprucefield will allow the centre to fulfil it regional role and attract a greater number of shopper from a wide catchment.

•    The location of Sprucefield on the strategic eastern seaboard (Belfast to Dublin) transport corridor is a further factor in allowing the centre to attract shoppers from a wide area in line with regional policy.

? Within Sprucefield fulfilling its regional role there would be increased competition and choice in the retail sector to the benefit of the Northern Ireland consumer.

? The proposal would represent a significant inward investment as well as offering significant new employment opportunities.

•    Measures to off-set any significant adverse effects (sic) were stated as including.

•    A satisfactory means of access to the development in the interest of road safety.

•    Legally binding agreement to provide any necessary additional infrastructure improvements after the development is operational.

•    The provision, establishment and maintenance of a high standard of landscaping.

•    Any archaeological remains are properly identified and protected or appropriately recorded.

•    Proper drainage and sewage disposal facilities will be put in place.

•    Water course are protected.

Conditions were attached to the planning permission to ensure that the appropriate mitigation measures were taken during construction and also when the proposal had been implemented. The regulation 34 statement concluded:

"The Department therefore considers that, on balance, planning permission should be granted for the development as proposed subject to the conditions attached to the grant of planning permission dated 22 February 2006. The development will allow Sprucefield to fulfil its true regional role extending competition and choice in the Northern Ireland retail sector. It also will have significant economic benefits."

"Erection of 48,987 square metres gross external floor space for retail use and 2,026 square metres for restaurant use together with ancillary infra-structure, landscaping and carparking including multi-story carpark."

The introductory section of the outline planning permission referred to the drawings attached to the application by reference to their serial number and letters. The permission then stated that outline planning permission was granted for the development "in accordance with the application" subject to compliance with 36 conditions.

"2. The under-mentioned reserved matters shall be as may be approved in writing by the Department.

Elevations: detailing the proposed elevations for the buildings when viewed from the A1 link road round about north eastwards from Hillsborough direction.

Restaurants: the position, size and external appearance of the proposed restaurant.

Landscaping: the use of the site not covered by buildings and the treatment thereof including the planting of trees, hedges, shrubs, grass, the laying of hard surface areas, the formation of banks, terraces or other earthworks and associated retaining walls, screening by fencing walls or other means, the laying out of gardens and the provision of other amenity features.

Lighting: the position and design of all external lighting including flood lights, security lighting and illuminated signage.

Other ancillary work: the position, layout and design of all other incidental buildings and structures, shop fronts, plant and works.

Reason: To enable the Department to consider in detail the proposed development of the site.

3. Retail floor space.

The gross retail floor space of the development hereby approved shall not exceed 48,987 square meters together with 2,026 square metres for café/restaurant. Within this area no more than 32,061 square metres shall comprise the total net retail floor space [measured internally].

Reason: To control the nature, range and scale of retailing activity so as not to prejudice the vitality and viability of existing retail centres.

4. The floor space hereby approved for the individual retail unit shall be operated as single units and shall not be sub-divided into independent units or amalgamated into larger units without the prior consent of the Department.

5. No internal operations increasing the floor space available for retail use shall be carried out without the prior consent of the Department.

Reason for 4 and 5: To enable the Department to retain control over the nature, range and scale of retailing activities so as not to prejudice the continued vitality and viability of existing retail centres."

Conditions 8 to 17 set out detailed conditions relating to the landscaping of the site. Conditions 18 to 30 set out detailed conditions relating to the highways. 18, 19, 20 and 21 provided that the development should not be commenced until detailed engineering drawings for the works affecting the public road as indicated on specified drawing had been submitted to and approved by the Department; the development should not be open for use until all the roadworks indicated on specified drawings had been fully completed in accordance with the details in engineering drawings to be submitted and approved in accordance with the previous condition; the development should not be commenced until the detailed drawings for the proposed arrangements for the accesses onto the A1 Hillsborough Road had been submitted to and approved by the Department. All work should comply with the requirements of the design manual for roads and bridges and other relevant standards and technical guidance and should be assessed in accordance with the Institution of Highways and Transportations guidelines for safety audit of highway schemes; the development should not be open for use until proposed access arrangements had been fully completed in accordance with detailed engineering drawings to be submitted and approved in accordance with the previous conditions.

The Role of JLP

"I am writing to provide you a brief insight into the nature of the John Lewis business, explain why Sprucefield is the only location in Northern Ireland which would meet the company's requirements and demonstrate the economic benefits the proposed investment would bring to the Province.

John Lewis unlike our competitors builds large, full range department stores, offering a range and depth (some of 500,000 lines) of products not available in most other stores. That is the nature of our business and is what differentiates us from other department stores, which tend to be much more focused on fashion.

Such a development demands a very large strategic site capable of drawing from a truly regional catchment, with supporting regional infra-structure and direct immediate access. Good car parking is also important so that customers can take away the large items which form part of our wide range of household goods and make up an essential element of our offer and appeal."

The letter went onto point out that JLP had considered Belfast City Centre for a location but had ruled it out for economic reasons. The extension to Castlecourt would not meet the company's objectives either in terms of timescale or site availability and Cathedral Quarter could not physically accommodate their space requirement and other sites in Belfast had proven unacceptable. Sprucefield did meet all the criteria and the emergence of the site unlocked the opportunity for JLP to invest in Northern Ireland. The location offered a large site with existing planning designation as a regional shopping centre; a strategic site capable of drawing across a regional catchment, including from all of Northern Ireland and also from the south, a road network providing regional access without local access constraints and a development supported by a good car parking provision and associated complimentary retail uses. The letter went on:

"Timing is also a critical consideration for John Lewis. The size and complexity of a John Lewis department store requires the best part of two years in construction and fitting out work. John Lewis and Westfield can deliver a shop at Sprucefield within our time parameters, but to enable this to happen we need a decision urgently. 2006 is a very significant date since we are not opening any other shop in that year. From 2007 onwards however we have a very busy pipeline delivering 12 new shops at the rate of two a year. If we lose this window of opportunity we will not be able to invest in Northern Ireland for some years if at all.

In support of our market knowledge and experience as a retailer the research carried out in Northern Ireland has helped identify Sprucefield as the only commercially viable option for John Lewis in Northern Ireland. If we are unable to invest and locate in Sprucefield we will not invest in Belfast and therefore we will not invest in Northern Ireland."

"My purpose in writing to you is now to express concern about the very tight timing since it is our understanding, if there is to be any chance of meeting our target opening date of 2006, this decision will need to be taken prior to the Easter recess and any subsequent announcement of Westminster elections. In addition there has been much media speculation and correspondence about planning approval for the John Lewis shop been granted only with agreement for a much reduced adjacent retail development. The Sprucefield planning application which was submitted in 2004 needs to be taken as a total package. Without the associated retail units in their original form and size the John Lewis shop will not be viable. Therefore a decision to approve a reduced retail offer at Sprucefield would prevent John Lewis investing in Northern Ireland."

Responding to that letter the Secretary of State pointed out that there were "some very complex planning issues raised by this application." As far as he was concerned the Planning Services contribution and commitment of the process so far had not been lacking. In a further letter of 18 May 2005 the Chairman wrote again to the new Secretary of State stating that the proposal was to bring a full range John Lewis department store plus its associated distribution operation to Northern Ireland at Sprucefield. Such an operation would employ about 1,000 people and be "our first on the island of Ireland." He pointed out:

"Our interest in Sprucefield has been based on a combination of factors – the viability of the location and associated retail space, its designation as a regional shopping centre and the unique chance to fit in an additional store at Sprucefield before we embark on existing plans for a major UK development programme of ten new shops starting in 2007.

We discussed these circumstances fully with Paul Murphy and had hoped for a decision on the planning application before the election. Time is against us as we proceed to make the financial and operational commitments to other locations as part of our major pipeline of new shops in England and Wales. I believe that the credibility of all parties is better served by a decision soon rather than continuing uncertainty. I am sure you appreciate that a public inquiry or a refusal on Sprucefield will mean that we will not proceed with any investment in the province.

We sense a great deal of political will to have a new John Lewis department store in Northern Ireland. For our part we remain fully committed to Northern Ireland and would prefer to draw trade from the south rather than to invest in Dublin. The timing is, however, very tight and I would therefore ask you to ensure that a decision can be reached as soon as possible. We are ready to do all we can to progress matters with you, your colleagues and officials."

Lord Rooker replied to the letter of 18 May 2005 in a letter dated June 2005 but apparently written on 1 June 2005. It appears from the evidence that he became aware of the contents of the two letters from the chairman of JLP after he had made his May decisions but before he made his public announcement in June 2005. In his reply to the chairman Lord Rooker stated:

"I have carefully considered all of the arguments for and against this proposal and, taking into account the wider positive economic and social benefits that this proposal brings, I am pleased to be able to inform you that I decided that planning permission should be granted. My intention to approve the application will be announced publicly today and the decision notice will issue shortly."

Sprucefield's Planning History

The Judicial Review Challenges

(a) the ministerial decision made in late May 2005 and announced on 1 June 2005 to grant outline planning permission to SCL in respect of its application;

(b) the Departmental decision to issue the Notice of Opinion under article 31 on 17 June 2005 purporting to accede to the application subject to conditions; and

(c) the Departmental decision to grant the outline planning permission on 22 February 2006 in the terms in which it was issued.

The applicant's mounted their challenge on a wide number of fronts and by arrangement between the parties individual applicants focused the attack under particular headings, all supporting each other in their overall challenge although only Craigavon Centre Limited in their pleadings and argument relied on the purported breach of community law in respect of the decisions.

(a) Mr Horner QC on behalf of Bow Street Mall and Lisburn Chamber of Commerce focused on:

(i) The so-called "no brainer" approach to planning adopted by the Minister.

(ii) The failure to give reasons and/or due weight to material planning considerations and taking into account irrelevant considerations.

(iii) The treatment of the identify of JLP as a material consideration.

(iv) If the identity of JLP was a legitimate material consideration the failure to ensure that the planning permission gave effect to that material consideration.

(v) The ministerial treatment of the draft PPS5 affecting retailing and town and city centres.

(vi) The way in which the Minister and Department accepted at face value the proposition that the proposed development of 29 retail units in addition to the JLP store.

(b) Mr Straker QC on behalf of Multi Development UK Limited focused on:

(i) The failure of the Minister to consider the conditions to be properly imposed in any planning permission before making the decision to grant planning permission.

(ii) The failure to properly consider whether a public inquiry was appropriate.

(iii) The failure by the Minister to take account of the highways position before deciding to grant planning permission and thereby leaving out of account a relevant consideration.

(iv) The absence of a proper environmental statement and the breach of the EIA Regulations.

(v) Overlooking or ignoring the position of the Department for Social Development.

(c) In his domestic law challenge Mr Larkin on behalf of Central Craigavon Limited focused on:

(i) The failure of the Minister and the Department to appreciate that JLP was properly connected with the development.

(ii) The taking into account of JLP demands both in terms of location and timing of the development which were not proper or relevant considerations.

(iii) The taking into account of JLP threat to go to Dublin if planning permission at Sprucefield were not granted.

(iv) The Department's application of discretion in allowing itself to be dictated to.

(v) The Minister's misdirection to himself that Northern Ireland and English planning policies in this field were different.

In his community law challenge Mr Larkin contended that the Minister's decision constituted state aid contrary to article 87(1) of the EU Treaty; that it constituted unnotified state aid contrary to Article 88(3) of the EU Treaty; that it discriminated on the grounds of nationality contrary to article 12 of the Treaty; that it facilitated an anti-competitive agreement between JLP and the developer contrary to article 10 taken together with article 81 of the treaty. The decision amounted to a measure having equivalent effect in offering or causing to be offered to JLP advantageous terms with the express purpose of ensuring that JLP established itself as a retailer in Northern Ireland contrary to article 28 and it offered advantages to JLP in establishing itself in Northern Ireland that it would not be available to a retailer from another member of State contrary to article 43 of the EU treaty.

(d) Belfast City Council and Belfast Chamber of Trade though Mr Orr QC focused their attack on:

(i) The failure of the Minister to make any or adequate enquiry into the availability of alternative sites for a development such as that arising in the present application.

(ii) The failure to properly taken into account the impact of the proposed development on existing city and town centre and in particular a failure to take account of the original development strategy, strategic planning guidelines, SPG-ECON1 and policy R4 of the BMAP containing specific policies formulated for the Sprucefield Regional Shopping Centre.

(iii) The failure to give any reasons purporting to justify the conclusion that the proposed development would bring social and economic benefits.

(iv) Reaching that conclusion without any supporting evidence.

(v) Failing to give clear reasons having regard in particular to the fact that the Minister was contravening the advice of officials, professional planners and other governmental agencies without the benefit of the open forum of a public local inquiry, the clear departure from stated policy, the fact that the decision was of very significant importance to the people of Northern Ireland.

(vi) The failure to provide any justification for the additional 29 units.

All the applicants argued that following the notification of the article 31 Notice of Opinion there had been a material change of circumstances requiring the Department to reconsider the position in the light of that change. The material change of circumstances relied on by them was that the JLP had let it be known in a statement recorded in the press that it was considering opening a JLP store in the Republic of Ireland which was contrary to the position it had taken before the ministerial decision and JLP did not appear to be maintaining the stance that it had to open its store in Northern Ireland by 2006 since it now appeared clear that it was prepared to work to a timeframe much longer than that.

The Statutory Framework

Article 31 is of central relevance in the present case and it provides:

Special procedure for major planning applications

"31.

(1)   Where, in relation to an application for planning permission, or an application for any approval required under a development order, the Department considers that the development for which the permission or approval is sought would, if permitted—

(a)   involve a substantial departure from the development plan for the area to which it relates; or

(b)   be of significance to the whole or a substantial part of Northern Ireland; or

(c)   affect the whole of a neighbourhood; or

(d)   consist of or include the construction, formation, laying out or alteration of a means of access to a trunk road or of any other development of land within 67 metres of the middle of such a road, or of the nearest part of a special road;

the Department may within two months from the date of the application serve on the applicant a notice in such form as may be specified by a development order applying this Article to the application.

(2)   For the purpose of considering representations made in respect of an application to which this Article applies, the Department may cause a public local inquiry to be held by the planning appeals commission.

(3)   Where a public local inquiry is not held under paragraph (2), the Department shall, before determining the application, serve a notice on the applicant indicating the decision which it proposes to make on the application; and if within such period as may be specified in that behalf in the notice (not being less than 28 days from the date of service thereof) the applicant so requests in writing, the Department shall afford to him an opportunity of appearing before and being heard by the planning appeals commission.

(4)   In determining an application to which this Article applies, the Department shall, where any inquiry or hearing is held, take into account the report of the planning appeals commission.

(5)   The decision of the Department on an application to which this Article applies shall be final.

(6)   In this Article "road " includes a proposed road and "special road ", "trunk road " and "proposed road " have the same meaning as in the ^M40 Roads (Northern Ireland) Order 1980."

It is clear that in any major application raising any of the matters listed in article 31(1)(a) to (d) the Department is bound to consider applying the article to the application. That happened in this case. Once article 31 is applied to the matter the Department has to turn its mind to consideration of the question whether a public local inquiry should be held by the Planning Appeals Commission. The issue whether the Department approached that question properly arises in this case. If the Department having directed itself properly and deciding within its proper margin of appreciation that a public inquiry is not necessary the Department must serve a notice indicating the decision which it proposes to make (its Notice of Opinion). Whatever the indication of its Notice of Opinion the applicant may proceed to the Planning Appeals Commission whose report would be taken into account by the Department. The ultimate decision it makes will be final and therefore cannot be subject to the ordinary planning appeal route. If the Department's proposal is to reject the application the applicant may wish to take matter to the Planning Appeals Commission were the matter goes into the public domain. If the Department proposes to grant the application without conditions it will be hardly likely that the applicant take the matter to the Commission. If the conditions attached to the proposed planning permission are considered unacceptable the applicant may wish to challenge those conditions before the Commission.

Introductory Consideration of Relevant Legal Principles

"The need for such inquiry was addressed in Planning Service's submission which concluded in the context of a recommendation to refuse that it was not required. I have also considered the issue again in the light of my conclusion and I am satisfied that a public inquiry is not necessary to inform my decision to approve."

In his interview on 1 June 2005 the Minister repeated that he was not convinced that a public inquiry would have brought out anything new that anybody did not already know about. Against the timeframe he was working to he concluded that there was a window of opportunity for the people of Northern Ireland which should be grabbed.

"A public inquiry is not a lis inter partes. It is a public inquiry – at which the acquiring authority and the objectors are present and put forward their cases – but there is an unseen party who is vitally interested and is not represented it is the public at large it is the duty of the Minister to have regard to the public interest … so also with the planning and development of land. It is the public at large who are concerned."

"Virtually all planning decisions involve some kind of balancing exercise. A commonplace illustration is the problem of having to decide whether or not to accept compromises or sacrifices in granting permission for developments which could or would in practice otherwise not be carried out for financial reasons. Another common no doubt rarer, illustration would be a similar balancing exercise concerning composite or related developments, ie related in the sense that they can and should properly be considered in combination, where the realisation of the main objective main depend on the financial implications or consequences of others."

Later at 113 (c)-(f) Kerr LJ went on:

"It is no doubt true that planning authorities must be particularly careful not to give way too readily to assertions of financial constraints as a ground for relaxing policies which had been formulated in the public interest. Suppose that an urban authority had a policy requiring use of green tiles – which are substantially more expensive than others, in areas of residential developments bordering on the countryside. If a developer who wished to erect an otherwise highly desirable housing estate claimed that this would be uneconomic if green tiles had to be used, then the authority would clearly not be bound to reject his application out of hand. It would be bound to consider it on its merits although it might well be highly sceptical about the assertion that the economic viability of the project would founder if green tiles had to be used but if, after proper consideration, this were indeed the conclusion reached on a basis which would not admit of a charge of irrationality, then there would be no question about the validity of a decision which permitted the use of red or black tiles in the circumstances."

"The degree of discussion, questioning and consideration which took place meant that the suggestion that the conclusion reached was manifestly unreasonable or based on inadequate information was untenable."

The No Brainer Issue

The Reasons Argument

The Conditions Challenge

Environmental Impact Issues

"1. A description of the development comprising information on the site, design and size of the development.

2. A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.

3. The data required to identify and assess the main effects which the development is likely to have on the environment.

4. An outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for his choice, taking into account the environmental effects.

5. A non-technical summary of the information provided and of paragraphs 1 to 4 of this Part."

Under regulation 12 the developer is required to make the environmental impact statement available to the public and the Department must publish appropriate notices allowing the public to make representations. Regulation 15 empowers the Department to require the submission of further information and such information itself triggers a renewed need for publicity. When a decision is made the Department must inform the public of the decision and the reasons for it (see regulation 34).

"Provided the outline application has acknowledged the need for details of a project to evolve over a number of years, within clearly defined parameters; provided the environmental assessment has taken account of the need for evolution within those parameters and reflected the likely significant effects of such a flexible project in the environmental statement; and provided the local planning authority in granting outline planning permission imposes conditions to ensure that the process of evolution keeps within the parameters applied for and assessed it is not accurate to equate the approval of reserved matters with modifications of the project. The project as it evolves with the benefit of approvals of reserved matters, remains the same as the project which was assessed…..

The developers do not have an excuse to provide inadequate descriptions of their projects. It will be for the authority responsible for issuing the development consent to decide whether it is satisfied, given the nature of the project in question, that it has "full knowledge" of its likely significant effects on the environment. If it considers that an unnecessary degree of flexibility and hence uncertainty as to the likely significant environmental effects, has been incorporated into the description of the development, then it can require more detail or refuse consent."

At page 387 Sullivan J went on to say:

"It is for the local planning authority to decide whether it has sufficient information in respect of the material considerations. Its decision is subject to the review by the courts but the courts will defer to the local planning authority's judgment in that matter in all but the most extreme cases. Regulation 4(2) reinforces this general obligation to have regard to all material considerations in the case of a particularly material consideration; 'environmental information' which has been provided pursuant to the assessment regulations."

Sullivan J went on to point out that the environmental statement does not have to describe every environmental effect, however minor, but only the main effects with likely significant effects. An environmental statement that attempted to describe every environmental effect of the kind of major projects where assessment is required would be so voluminous that there would be a real danger of the public during consultation and the local planning authority in determining the application losing the woods for the trees.

The Treaty Issues

"Save as otherwise provided in this Treaty any aid granted by a member state or through state resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between member states, be incompatible with the common market."

Article 10(2) prohibits member states from facilitating a structure whereby undertaking to reach agreements or engage in conduct that is prohibited by Article 81 or 82. The permission granted for the department and the 29 additional units contrary to proper planning policy which discouraged out of town shopping centres permitted the SCL to offer a substantial inducement to JLP subsidised by the additional units in a scheme which would not normally be available and put JLP at a significant market advantage. By specifically favouring JLP in a way which would not have applied to other commercial entities the Minister discriminated on the ground of nationality contrary to Article 12.

(i) an aid in the sense of being a benefit or advantage;

(ii) which is granted by the state or through state resources;

(iii) which favours certain undertakings over others;

(iv) which distorts or threatens to distort competition;

(v) which is capable of affecting trade between member states; and which

(vi) has not been notified to the Commission.

The need to establish that the aid is granted by a state or through state resources is clear from Openbarr Ministerie v Van Tiggele [1978] ECHR 25 where Advocate General Capitorti opined that:

"It is necessary that the state should grant certain undertakings selected individually or by categories an advantage entailing a burden on the public finances in the form either of expenditure or reduced income."

The ECJ agreed and stressed that for the state aid to be unlawful it must be granted directly or indirectly through state resources. Notwithstanding attempts to widen the concept, the ECJ has maintained this viewpoint (see Sloman Neptun Schiffaharts AG v Seebetriebsrat Bodo Ziesemer der Sloman Neptun Schiffaharts AG [1993] ECR1 – 887). More recently in Preussen-Elektra SG v Schleswag AG [2001] ECR1 – 2090 Advocate-General Jacobs analysed the position and pointed out that:

"Only advantages which are granted directly or indirectly through state resources are to be regarded as state aid …"

The ECJ fully accepted that approach and rejected the argument that a purchase obligation imposed by statute which conferred an undeniable advantage on certain undertakings had the character of state aid. Only advantages granted directly or indirectly through state resources are to be considered as state aid. In the planning context in AEESCA 2003/C112/81 the Commission refused to take action in relation to the exemption of certain hyper-markets in Spain from the requirement to obtain planning permission to vary planning restrictions in buildings and usage under Spanish law. The Commission held that there was no transfer of state resources and therefore no state aid.

The Art. 122 Agreement Challenge

"It is not, I think, in dispute, that an aid is a wider concept than subsidy and may include any form or assistance or advantage given by a member state often said resources to an undertaking which would not be available in the ordinary course… the concept of aid is nevertheless wider than that of a subsidy because it embraces not only positive benefits such as subsidies themselves but also interventions which in various forms mitigate the charges which are normally included in the budget of an undertaking and which without, therefore, being subsidies in the strict sense of the word, are similar in character and have the same effect."

"I was present at a meeting convened by me at which the developer and Road Service were both represented to discuss the issue of roads in connection with the planning application. The meeting took place on 16 March 2005 and resulted in an oral agreement between the Road Service and the developer that a sum of £1m would be provided to the developer to the Road Service in respect of mitigation works. These were matters not covered by the road traffic assessment as experience had shown that even with the best traffic modelling unforeseen problems may arise. The object is to ensure that the developer, not the state, bears the costs of such problems if they arise. This oral agreement has been produced in writing and forms a part of the article 122 Agreement signed on 10 February 2006 between the developer and the Department of Regional Development. The figure of £1m was based on the judgment of the Director of Network Services of the Road Service as to the need to make provision for contingencies in the form of mitigation described in the agreement. The reference 'to contribution' is simply standard use of that term in this context and is often used as here where the contribution is 100%.

9. It is the case therefore that the cost of effecting roadworks in connection with the application will not fall on the taxpayer but such works in their totality will be paid for by the developer. There was no intention to provide any form of state subsidy to the developer and there is no element of public funding involved." (Italics added).

Alternative Sites Challenge

"Major proposals for comparison shopping and mixed retailing will only be permitted in out of centre locations where the Department is satisfied that similar town centre sites are not available."

Draft Planning Policy Statement 5

"Q– Why did you announce this before we had seen the PPS5 proposals on retail planning?

A – Well PPS proposals on retail planning had not gone through the system. The honest truth is, I am trying to give you the honest truth anyway, it's arrived on my desk although I'm not essentially the minister who would deal with that for reasons of responsibilities amongst, the ministers and interest amongst the ministers. Its not sufficient in my view but I do a lot of work on it because it was literally only last week Thursday I think it was that it was agreed that it would come from one minister over to me so I physically got it on my desk upstairs this morning of what I know about it. The fact of the matter is the wider considerations of what was involved in this planning application I don't think would have been outweighed by what's in the draft at PPG5 which (sic).

Q – The two are compatible? This is compatible with what's on your desk in the form of PPS5?

A – Well, the PPS5 is in draft form, it's not yet been published it's not ready for publication, it won't be published until ministers are ready to do so.

Q – Yeah but in the form it is in at the moment is it compatible with what you have been asked to do?

A – Well it doesn't matter, cos I haven't first of all, it hasn't been gone through. The fact of the matter is whatever is in PPG (sic) or whatever ends up in PPG5 would not be compatible and secondly the wider overall considerations I don't think would be negatised by what's in the PPG5 either in draft or in its final form.

Q – You will appreciate it that the specific view is that whatever PPS5 emerges of course it will be compatible to what we announced (tape inaudible).

Still repeat, I think this is a good news decision for the people of Northern Ireland. It's not a negative decision it's a positive decision and I hope it will be embraced as such."

"Q9 – This decision is out of step with draft PPS5. Why are you ignoring PPS5?

A9 – PPS5 is a draft which has yet to be published. But I recognise that it would be a factor to take into consideration in coming to a decision on planning applications. That said, in the case of this development at Sprucefield I am clear that the other factors would outweigh PPS5. (Italics added).

Q10 – Have you deliberately delayed the publication of draft PPS5 to try to make this decision about Sprucefield easier to present.

A10 – No. PPS5 has taken some time to produce because of the complexity of some of the issues involved. John Speller discussed those issues with officials on a number of occasions but was not in a position to complete his consideration of the draft PPS before the general election was called. It would not have been appropriate to take any public action on PPS5 in the run up to the election. I have now taken over responsibility for PPS5. This was only finally determined last week so I have not yet had the opportunity carry out the detailed examination of the papers which will be necessary before I can clear them for publication.

Q11 – Is this decision not at odds with the recently published Joint Ministerial Statement?

A11 – I do not believe this proposal should be refused on the grounds of prematurity. I believe there are clear reasons in relation to significant economic and social benefits in the overall public interest as to why this proposal should be granted planning permission at this time and the opportunity not lost to the Northern Ireland consumer."

" (a) The Department's planning policy publications are material considerations and due regard will be paid to them. Emerging policies, in the form of draft statements and strategies that are in the public domain, may also be regarded as material considerations, although less weight will be ascribed to them than to final publications. Supplementary planning guidance may be taken into account as a material consideration in determining a planning application and the way to court such guidance will increase if it has been prepared in consultation with the district council and the public." (Italics and underlining added).

Paragraph 50 distinguishes between published policy (which will be material consideration) and emerging policies which remain material considerations if they are in the public domain although less weight will be ascribed to them.

Miscellaneous Other Arguments

(a) In relation to the argument that there had been a failure to consult the DSD it seems clear the Department was consulted and that its views were documented and considered.

(b) In relation to the alleged failure to properly take into account the impact of the proposed development on existing city and town centres it is clear that the potential impact of the development on the other city and town centres was highlighted in the papers before the Minister and considered by him. It cannot be said that the Minister's decision to permit the development notwithstanding the known potential impact was Wednesbury unreasonable.

(c) The challenge to the Minster's viewpoint that the development should proceed for social and economic reasons cannot succeed. Social and economic considerations are relevant and material planning considerations. It was a tenable and rationale viewpoint on the part of the Minister that those considerations outweighed the arguments against the proposal. The challenge is essentially a merit's challenge and must be rejected.

(d) The argument that the Minister wrongly took account of JLP demands and threats is inter-linked to the argument that the Minister bowed to dictation by JLP and abdicated his discretion. JLP clearly exerted considerable pressure on the Department by indicating that it would consider no other site, that the application was time constrained and that if a public inquiry were directed it would not proceed. The Minister clearly took account of the time constraint to expedite his decision and accepted the contention by JLP that it was only interested in Sprucefield. What weighed with him were the economic advantages of the development which he was entitled to take into account. The evidence does not establish that the Minister simply capitulated to JLP's pressure. He took and was entitled to take JLP's stance into account as a necessary background to the application and proceeded from there to decide that the planning permission was appropriate having regard to his weighing of the factors.

(e) The Minister was influenced by what he considered to be the desirability of Northern Ireland getting a JLP store ahead of the Republic. That was part of the economic attraction of the development and therefore a permissible consideration. The Minister as a reasonable decision maker would have known that the opening of a John Lewis store in Northern Ireland could not prevent JLP opening a store or stores in the Republic but he perceived the economic and social advantages in Northern Ireland being the site of the first John Lewis store in the island of Ireland.

(f) In relation to the argument that the Minister incorrectly proceeded on the basis that English policies could not simply be translated to Northern Ireland and that there were differences between the planning position in the two jurisdictions the comment must be read in context. There were differences between the policies, as counsel for the Department demonstrated. Significantly the position of Sprucefield as a regional shopping centre had no equivalent in England. The Minister's viewpoint, which he was entitled as Minister to reach, was that Sprucefield as a unique entity needed a development along the lines of the proposal. I conclude that his conclusion on that point cannot be challenged.

Events Subsequent to the Notice of Opinion

"These matters were considered by us in the course of the process of further decision making in respect of the developers planning application. On the basis of inquiries made by my team these reports were not corroborated and in the course of ongoing consideration of the application we did not detect any credible sign that the developer's applications would not proceed as formulated. Our inquires included the check of websites in respect of planning authorities in Dublin and its environs and the website of JLP. Published planning applications in newspapers such as the Irish Times were also monitored. Such inquiries were conducted regularly throughout the period from August 2005 to March 2006. As at the present time we have been unable to discover any planning application for JLP store in Dublin or elsewhere in the Republic of Ireland. It seems clear to us that there has been none."

This passage indicates something less than a full and detailed inquiry directed to SCL and JLP to spell out clearly what concrete clear plans SCL and JLP had in relation to the development at Sprucefield and in relation to developments elsewhere in Ireland. In the course of the hearing neither the Department nor SCL spelt out any clear details of what exactly was planned in respect of JLP's involvement in the Sprucefield development or elsewhere in Ireland. The discussion earlier (paras [44] et seq) in respect of the duty of inquiry and investigation before the issue of the Notice of Opinion and on the inadequacy of that investigation is relevant in the present context. Developments, after the issue of the Notice of Opinion, highlighted the need for properly drawn conditions to give effect to the underlying logic of the Minister's decision which was to secure JLP as the anchor store. Checking the website of the planning authorities in Dublin and publications in newspapers is less than a full inquiry in the present context. The fact that this was done points to a lack of direct and clear inquiry directed to JLP or SCL on the state of actual plans for JLP involvement at Sprucefield and elsewhere in Ireland. The check referred to might well be meaningless since JLP may well not have been an applicant for such planning permission (just as JLP was not an applicant in the present case). What happened subsequent to the Notice of Opinion in this context confirms the view reached earlier that the Department failed to carry out proper investigations and inquiries to inform itself in relation to relevant issues upon which it should have been properly informed before the Notice of Opinion and the subsequent outline planning permission were issued.

Conclusions

(i) The Minister failed to properly consider the question whether a public local inquiry should be directed (see paragraphs [44] to [55] above).

(ii) The information before the Department relating to the non-severability of the development and to the justification for the linkage of the 29 units and the department store was inadequate and was not investigated by the Department. In the absence of any such exploration of the issues relating to the alleged financial imperatives of an overall development of this magnitude the conclusion that it was an appropriate development was one no reasonable planning authority directing itself could have reached (see paragraphs [44] to [55]).

(iii) The Minister's decision was motivated by the centrality of the role to be played by JLP at Sprucefield, a centrality which found no expression in the Notice of Opinion or the conditions attaching thereto or the consequent outline planning permission. The conditions attached to the Notice of Opinion and to the outline planning permission failed to reflect the centrality of that role and failed to tie JLP into the development. The decision makers drawing the conditions attaching to the Notice of Opinion and the outline planning permission fail to have proper regard to the logical requirement for such conditions implied in the Minister's decision. Accordingly, the Department failed to have regard to a relevant consideration. (See para [71]).

(iv) The outline planning permission was premised on the basis of a valid article 122 agreement. The article 122 agreement was flawed in that the Department incorrectly intended that the agreement should secure to the Department a full indemnity in respect of the costs of requisite mitigation works and assumed that it achieved that result whereas the cap of £1m precluded the recovery of any excess over the sum of £1m. (See para [87]–[92]).

(v) The Department failed to properly investigate and inform itself about the intentions and proposals of JLP and SCL after the issue of the Notice of Opinion and before the issue of outline planning permission. The Department could not rationally have been satisfied that the outline planning permission should be granted until it sought to inform itself properly in the new context which differed from the context in which the earlier decision had been made. (See para [103] to [104]).