Appeal court rejects challenge over powers of civil servant in incinerator case

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The Court of Appeal has dismissed a bid by a Northern Ireland government department to have a High Court judgment over the powers of a civil servant overturned.

In May, a High Court judge ruled that a senior civil servant did not have the power to grant planning permission for a £240 million waste treatment centre and incinerator at Hightown Quarry in Mallusk.

The decision had been made by the permanent secretary of the Department for Infrastructure in the absence of a minister.

There have been no ministers in post in Northern Ireland since March 2 2017 following the collapse of the Assembly in January 2017.

Northern Ireland’s nine government departments have since been led by senior civil servants.

The Department for Infrastructure appealed against the High Court verdict in a bid to provide clarity over civil servants’ powers to govern following the collapse of devolution.

They argued that Parliament anticipated periods where Northern Ireland would have to be run without a functioning Executive in place.

But in a ruling issued on Friday morning, the Court of Appeal denied that appeal.

It concluded that the decision made by the department was “crosscutting, significant and controversial”, and “therefore, a decision which could only be taken by the Executive Committee”.

The appeal was dismissed.

Sinn Fein MLA Declan Kearney welcomed the ruling, saying the facility should never have been approved.

“This decision is another vindication and another victory for local democracy, campaigning residents and the primacy of the Good Friday Agreement,” he said.

“Approval should never have been granted for this facility in the first place given the widespread opposition and concerns over the safety of residents.

“The court was very clear that it would be contrary to the Good Friday Agreement for such a significant and controversial decision to be taken by departmental officials in the absence of an Executive.

“I very much welcome that as it again signals the importance of re-establishing the power-sharing institutions in a way that is consistent with the Good Friday Agreement.

“That means dealing with the equality and rights issues at the heart of the crisis and both governments fulfilling their responsibility as co guarantors of the GFA when the British Irish Governmental Conference finally meets later this month.”

However, other parties expressed concern at the ruling for future decision making in Northern Ireland.

Reacting to the decision, Ulster Unionist leader Robin Swann urged the Secretary of State to either restore some form of devolution or appoint direct rule ministers.

“The judgment from the Court of Appeal is clear and decisive,” he said. “It means that the Secretary of State has now run out of road.

“She can no longer remain a back seat driver and must move to restore some form of devolution or the Government should appoint direct rule ministers on Monday.

“There is no running away from this. It is a time for decisive leadership.

“The Secretary of State and the Northern Ireland Office can no longer duck the hard decisions for fear of upsetting Sinn Fein or concerns about the DUP’s confidence and supply agreement with the Conservative Party.

SDLP North Belfast MLA Nichola Mallon said the political implications of the ruling are significant.

“Parameters have now been set around the ability of the Civil Service to take decisions in the absence of a local Executive,” she said.

“It is clear that when it comes to decisions that are cross-cutting, significant and controversial, the Civil Service has no legal authority to act.

“We have a political vacuum. We have a decision-making vacuum. We urgently need a local Executive with democratically elected and accountable local ministers to take decisions in the interest of the people of Northern Ireland.”

“The country is gradually grinding to a halt due to a lack of political direction or decision-making. I urge the Secretary of State to be bold and do what’s right for Northern Ireland.”

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