A Stormont department has failed in a bid to overturn a ruling that it had no legal power to approve a new £240m waste incinerator without a minister in place.
The Court of Appeal held that only the full Executive could authorise the proposed facilities on the outskirts of north Belfast because they were so significant, controversial and cut across areas of responsibility.
Lord Chief Justice Sir Declan Morgan said: “Any decision which as matter of convention or otherwise would normally go before the minister for approval lies beyond the competence of a senior civil servant in the absence of a minister.”
The verdict represents a blow for officials seeking clarity around their powers to govern following the collapse of Northern Ireland’s devolved arrangements more than a year ago.
The Department for Infrastructure was appealing a ruling that its permanent secretary unlawfully approved the waste disposal facility at Hightown Quarry in Mallusk.
In May the High Court held that the senior official did not have the required legal authority to grant planning permission.
An appeal was then fast-tracked due to the wider significance for decision-making without a functioning power-sharing administration.
Counsel for the department contended that Parliament anticipated periods of hiatus where Northern Ireland would have to be run without a functioning Executive in place.
The 1998 Northern Ireland Act provided a unique legal right for departmental functions to continue while ministers are not in post, it was claimed.
However, lawyers representing objectors to the incinerator insisted it cut across into the Department of Agriculture, Environment and Rural Affairs (DAERA)’s responsibilities.
On that basis, they argued, there was a legislative requirement to bring the issue before the Executive, rather than go on a “solo run”.
Instead, according to their case, the senior civil servant’s approval of the facility “side-stepped” legal requirements for collective decision-making at Stormont.
Objector Colin Buick, chairperson of community group NoArc21, had won the original court battle amid claims the incinerator was wrongly approved with the required direction and control of a minister.
The scheme had originally been turned down in 2015 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 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 fell in early 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.
Delivering judgment on the appeal, Sir Declan, sitting with Lord Justice Treacy, acknowledged the importance of the case.
“The decision is of critical importance to the conduct of government through the Northern Ireland departments since no such department has had a minister in charge since March 2, 2017,” he said.
Backing Mr Buick’s case, the court agreed that the decision in this case crossed departmental boundaries.
Sir Declan said it would be contrary to the letter and spirit of the 1998 Good Friday Agreement and Northern Ireland Act for such decisions to be made by departments without a minister.
Dismissing the appeal, he confirmed: “The decision made by the department was crosscutting, significant and controversial.
“It was, therefore, a decision which could only be taken by the Executive Committee.