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.
“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
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.”
Becon Consortium, the waste management experts involved in the incinerator, described the ruling as a frustrating setback but insisted they remain fully committed to delivering the facility.
In a statement they said it was one of the most regionally significant and strategically important infrastructure projects currently required in Northern Ireland.
“We note that the decision not to uphold this decision does not change the material facts at the heart of the planning decision, the project’s compliance with regional waste policy or indeed remove the strategic need for such infrastructure here in Northern Ireland in the future,” the statement added.
“Instead, the judge’s decision is entirely based on procedural matters in relation to the ability of the Department to make a decision in the absence of a minister in post.”