BLOG: Whitehead, the oil terminal and what happens next
There aren’t many things that taste better to a public interest litigator than a Café Carberry* coffee after a positive outcome at Belfast’s High Court.
*other Belfast coffee shops adjacent to the Royal Courts of Justice complex are available!
Monday 09 September 2024 felt like a day of endless possibility.
The PILS team were so proud to have represented the Stop Whitehead Oil Terminal (SWOT) campaigners in their public interest legal action. Fuelled by caffeine, adrenaline and gratitude, we passed on the good news to family, friends and the waiting journalists.
If you watched any of the media interviews with either Maria or Clodagh on the steps of the court after the decision was announced, you can probably feel the positivity through your phone screen!
I was at the High Court this morning to hear how @mea_bc ‘s planning permission for a major oil terminal on Belfast Lough has been quashed. Watch what @CloghanNo campaigners and their @PILSni solicitor @MariaMcCloskey had to say here 👇 @BelfastLive https://t.co/MZJaQqXWfU
— Shauna Corr 🌍 (@ShaunaReports) September 9, 2024
But what happens when the TV cameras move on after a high-profile day in court?
What does the High Court decision actually mean for Whitehead, SWOT’s campaign and the oil terminal?
To recap: SWOT is a non-profit community group concerned about the risks that unnecessary fossil fuel development poses to the climate, the Belfast Lough ecosystem and local people.
The group successfully applied to PILS in summer 2024 for legal assistance and financial support to initiate judicial review proceedings against both Mid and East Antrim Borough Council and the Department for Infrastructure.
PILS Director Maria McCloskey was the solicitor in both cases.
Why were there two legal challenges?
SWOT challenged the Council’s decision to grant planning permission to expand and redevelop the existing oil terminal at Cloghan Point, potentially turning it from a storage facility into a major fossil fuel import and distribution hub visited by colossal oil tankers and lorries .
The group also issued legal proceedings against the Department for Infrastructure for its failure to ‘call in’ or scrutinise this planning decision. This combination of actions raised fundamental questions about environmental decision-making and accountability in Northern Ireland.
Both of these applications for judicial review were submitted to the court, on behalf the the concerned community, in the name of one of SWOT’s campaigners: Clodagh Miskelly.
Clodagh’s name was officially associated with the case on paper, but she was not alone in her concern.
The redevelopment proposal has been the subject, and continues to be the subject, of opposition from the local community and beyond.
There have been over 350 objections to the application made by a mix of individuals, NGOs and politicians (including MLAs).
What happened in court and what does quashing mean?
The Court cannot tell a government department or a council what its decision should be.
What a court can do is look at how a decision was made and, if that process was problematic, then the Court instructs the council or government department to retake its decision.
Essentially, it’s telling the original decision makers to ‘do it again’.
On 09 September 2024, the High Court in Belfast ordered Mid and East Antrim Borough Council to quash its 25 April 2024 decision to grant planning permission for redevelopment and expansion of the Cloghan Point Oil Terminal at Whitehead.
The Court ordered this because the Council admitted it made a fundamental error in failing to hold a pre-determination hearing before issuing its final decision.
This hearing is a mandatory part of the planning process, but the Council had not carried one out (a fact that SWOT only became aware of after it had commenced legal proceedings).
The Court confirmed that this failure meant that the Council’s decision to grant planning permission was unlawful. That decision was set aside– or ‘quashed’, as if it had never been made in the first place.
What happens next?
Hopefully, PILS and SWOT won’t have to return to the Royal Courts of Justice for any more post-proceedings coffee.
Mid and East Antrim Borough Council’s planning committee need to make a fresh decision on whether or not this fossil fuel infrastructure should be given planning permission.
PILS and SWOT would take the Court’s ‘do it again’ instruction one or two steps further.
Now, we’re urging the decisionmakers to ‘do better next time’. Taking the reasons SWOT put forward in its application for judicial review into account would be a very good place to start.
Great piece on the BBC about 3 major fossil fuel projects in a small area of NI all challenged in the courts, 2 by community campaigns. Shows complete failure of the planning system in env protection & again raises questions on why it has to be communities that do the protecting. https://t.co/47YSRKQ3rM
— Geraint Ellis (@gellis23) September 21, 2024
For now, the proceedings against the Department for Infrastructure have been paused (or, in legal terms, ‘adjourned generally’).
The Department has indicated that it will issue a new direction to the Council, requiring the Council to refer the matter back to the Department once it has reached its revised recommendation. This will allow the Department to consider whether or not it will ‘call in’ the revised planning decision.
Given that the case was taken in her name, it feels appropriate that Clodagh should have the last word in this blog:
“We hope the council will now reconsider its decision to give the green light to this unwanted and unneeded development and look forward to their full consideration of the concerns we have raised.
We welcome the Department for Infrastructure’s commitment to issue a direction to allow it to consider calling in the application.
There needs to be an open and transparent process for scrutinising this proposed development. The proposal has implications for the marine environment and navigation in Belfast Lough. It would impact negatively on Northern Ireland’s urgent need to move away from fossil fuel infrastructure and to meet its targets for net zero carbon emissions.
These implications have strategic and regional significance beyond the scope of a local planning application and need to be considered by the Department and the Executive in the light of the Climate Change Act.”