Civil Servant’s planning approval deemed ‘unlawful’

The High Court in Belfast recently considered an application for judicial review of the decision to grant planning permission for a major waste disposal incinerator on the outskirts of North Belfast.

An umbrella organisation, ‘Arc21’, which comprises six local councils, had sought to develop a regional facility at Hightown, Mallusk, and applied for planning permission in 2014.  The Applicant submitted various objections as ‘No Arc21’.

In 2015, the application was subject to a notice of opinion to refuse by the then Minister for the Environment, Mark Durkan MLA, for reasons of health risks and lack of justifiable need.

Arc21 then requested a hearing before the Planning Appeals Commission (PAC). In 2016, the Executive Minister the responsible, Chris Hazzard MLA, instructed his Department to adopt a neutral position at the hearing in relation to the recommendations which the PAC might make.

The Stormont Executive collapsed in January 2017.  In March 2017, the PAC recommended approval of the application with conditions. 

In the absence of an Executive, the Permanent Secretary of the Department considered that he had the authority to exercise the powers of the Department to determine the planning application whilst conceding that ‘a planning decision of this nature would ordinarily have been taken by a Minister on behalf of the Department.’ 

The Judge, Mrs Justice Keegan, 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… I do not consider that the exigencies of the current situation are an adequate justification for the course that has been taken. 

The Court of Appeal dismissed an appeal by the Department for Infrastructure against the judgement of Keegan J. on 6th July 2018.

For more information about this article, or any other aspect of our business and personal legal solutions, call us on 028 9032 2998.  The is no charge for initial telephone advice.