Planning approval for Hightown waste incinerator was 'unlawful'
Approving a new £240m waste incinerator on the outskirts of north Belfast without a minister being in post was unlawful, a High Court judge ruled today.
Mrs Justice Keegan backed claims that a senior civil servant did not have legal power to give the green light for the major waste disposal facility at Hightown Quarry in Mallusk following the collapse of devolution.
She said: "I do not consider that Parliament can have intended that such decision making would continue in Northern Ireland in the absence of ministers without the protection of democratic accountability."
The verdict represents victory for campaigners opposed to the controversial incinerator project.
In 2015 the scheme had been turned down by the then Environment Minister, Mark H Durkan.
But a consortium behind the project on behalf of six local councils, Arc21, was given permission after the Planning Appeals Commission recommended approval.
In September last year the Department for Infrastructure said it was in the public interest for the waste management system to be built, describing it as being of strategic importance for the region.
The decision came months after the Stormont Executive collapsed in January 2017.
Up to 4,000 letters objecting to the incinerator were lodged, with residents listing concerns about the visual impact, light and noise pollution and health implications.
Judicial review proceedings were issued by Colin Buick, chairperson of community group NoArc21.
His barrister argued that senior officials had no legal power to approve the incinerator.
The department's decision to grant planning permission lacked the direction and control of a minister required under legislation, it was contended.
Mrs Justice Keegan was told that alone was enough to "sound the death knell" for allowing the development.
Counsel for Mr Buick also claimed civil servants are in "disarray" over the extent of their powers in the absence of ministers at Stormont.
Ruling on the challenge, Mrs Justice Keegan said the case advanced by the department "would mean civil servants in Northern Ireland could effectively take major policy decisions such as this one for an indefinite period".
She stressed there is currently a protracted vacuum pending either the restoration of executive and legislative institutions or direct rule in Northern Ireland.
The judge acknowledged arguments about how the delay in determining the Arc21 planning application was impacting on public waste and environmental development at national, European and international level.
The entire programme for government is on hold while the political impasse continues, she pointed out.
"However, I do not consider that the exigencies of the current situation are an adequate justification for the course that has been taken," Mrs Justice Keegan added.
She confirmed: "I have decided that the decision is unlawful on the vires ground."
Further decisions on the appropriate remedy and costs of the case will be taken at a later date.
Outside court a spokesman for Arc21 said it was disappointed with the ruling.
He added: "We will take time to consider the judgement in detail and consult with our stakeholders."
Former Departmental Minister, Mark H Durkan MLA said: "This is a hugely significant judgement, particularly given that the Judge recognised that the decision by the Department “went against the premises of the devolved institutions”.
"The question for all of us now - must be how we move forward. The SDLP will be seeking an urgent meeting with the Head of the Civil Service to determine how he intends to instruct future decision making across the civil service.
There are big questions for how things function here - both the British Government and the Irish Government should heed this judgement carefully as it underscores the urgency for restoration of local, accountable governance.
"The judgement calls into question the validity of any decisions made in the absence of an Assembly. Time is up on political drift - both the British and Irish Governments must now immediately convene the British Irish Intergovernmental Conference to clear the decks and get Stormont back to work."
Becon Consortium, the waste management experts involved in the arc21 Waste Management project, said: “We are disappointed with the outcome of the Judicial Review process for what we believe is one of the most regionally significant and strategically important infrastructure projects currently required here in Northern Ireland.”