Casement Park judge demands ‘complete candour’ from Stormont departments

People swearing affidavits in judicial reviews have duty of candour, says judge

The High Court in Belfast. Photograph: Dara Mac Dónaill

The High Court in Belfast. Photograph: Dara Mac Dónaill

 

A Belfast High Court judge who quashed the granting of planning permission for a new 38,000-seat GAA stadium in the west of the city has demanded “complete candour” from any Stormont department in future legal challenges.

Mr Justice Horner made his call as he rejected a claim by Sports Minister Carál Ní Chuilín that senior counsel for the Department of the Environment (DoE) may not have been “completely au fait” with government accountability. He stressed that Dr Tony McGleenan QC had acted “impeccably” throughout the hearing into the Casement Park redevelopment.

Construction of a new £77 million (€98 million) stadium on the site is facing major delay after the judge held that Environment Minister Mark H Durkan acted unlawfully in approving the project.

The decision-making process was found to be fundamentally flawed, with failures identified in the environmental impact assessment of increased facilities and an unrealistic reliance on an existing 32,600 capacity as a baseline for the expansion.

Dr McGleenan had warned during the case that more than £60 million of public money allocated to the redevelopment would be returned to the Stormont Executive if planning permission was overturned. But earlier this week Ms Ní Chuilín insisted the funding was ring-fenced and in no danger of being lost.

With her comments raised in court, Dr McGleenan emphasised on Thursday that he did not want to “raise the temperature” in any way. However, it was made clear that his contention about the funding was based on a sworn statement from the then permanent secretary at Ms Ní Chuilín’s Department of Culture, Arts and Leisure.

Returning to the issue on Friday, Mr Justice Horner said anyone swearing an affidavit in judicial review proceedings owed a duty of candour to the court. That obligation continues throughout the proceedings, he pointed out.

In a reference to the Sports Minister’s comments the judge continued: “Dr McGleenan, who has conducted the case impeccably on behalf of the Department [of the Environment], has been accused, I’m informed, of not being au fait with government accountability when he said the failure of the current planning application would lead to £61.4 million of government funding returning to the exchequer.

“I do not [consider] the misunderstanding lies with senior counsel.”

Mr Justice Horner added: “I must stress the importance of complete candour in these applications to ensure the court can impose the necessary confidence in any deponent, whether it’s a deponent on behalf of the government or on behalf of the applicant.

“I’m not going to take the matter any further, but I just make it absolutely clear that in future there must be complete candour on all sides.”

The successful challenge to the Casement Park project was brought by the local Mooreland and Owenvarragh Residents’ Association (Mora). In his verdict the judge identified a series of flaws in the planning decision, including:

Using a 32,600 capacity baseline analysis at the current ground where attendances have been far lower.

The effect of bigger crowds on the surrounding roads network was not properly examined.

A failure to inform the Minister about police safety concerns.

No assessment of the impact on local residents of extra stadium facilities such as conference suites, bars, restaurants and car parking.

Issues about the presence of Japanese knotweed.

A failure to engage with home owners about mitigating the risk of any asbestos escaping from the site during demolition and building work.

Setting out his reasons for quashing the planning permission, Mr Justice Horner acknowledged the outcome could have been different if the case was just about Japanese knotweed or asbestos. But factoring in the other issues, he said he could not make any other order.

Under the terms of a protective costs order agreed earlier in the case the DoE only has to be pay £35,000 of the residents’ legal fees. Counsel for Mora also told the court he has been instructed not to seek any costs from the GAA.