Buick's (Colin) Application as Chair Person of NOARC 21
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ |
| Judgment Date | 06 July 2018 |
| Neutral Citation | [2018] NICA 26 |
| Date | 06 July 2018 |
| Court | Court of Appeal (Northern Ireland) |
| Year | 2018 |
1
Neutral Citation No: [2018] NICA 26
Ref:
MOR10706
Judgment: approved by the Court for handing down
Delivered:
6/7/2018
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY COLIN BUICK AS
CHAIRPERSON OF NoARC 21 FOR JUDICIAL REVIEW
IN THE MATTER OF A DECISION BY THE DEPARTMENT OF
INFRASTRUCTURE DATED 13 SEPTEMBER 2017
________
Before: Morgan LCJ, Stephens LJ and Treacy LJ
________
MORGAN LCJ and Stephens LJ
[1] This appeal concerns a successful challenge to the power of the Department of
Infrastructure (“the Department”) to grant planning permission for a major waste
treatment centre and energy from waste incinerator at Hightown Quarry, County
Antrim. The background was the resignation on 9 January 2017 of the deputy First
Minister (“DFM”) as a result of which by virtue of section 16B(2)(a) of the Northern
Ireland Act 1998 ("the 1998 Act") the First Minister (“FM”) also ceased to hold office.
(The 1998 Act was amended by the Northern Ireland (St Andrews Agreement) Act
2006 (“the St Andrews Agreement Act”) and it is to the Act as amended that
reference is made throughout this judgment.) Because of political difficulties
between the two largest parties, the DUP and Sinn Fein, it was not possible to fill the
vacancies. The then Secretary of State proposed 2 March 2017 as the date for an
election pursuant to section 32(3) of the 1998 Act. The election was duly held on that
date as a result of which all Northern Ireland Ministers ceased to hold office. Because
of the continuing political difficulties between the parties the mechanisms for the
appointment of new Ministers failed. The Northern Ireland Departments continued
2
to exercise their functions through senior civil servants. Keegan J held that in the
absence of a Minister in charge the Department did not have the power to grant the
impugned permission. This 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 2 March 2017.
Background
[2] On 27 March 2014 the former Department of the Environment ("DoE")
received a planning application from the Notice Party, Arc 21. Arc 21 is a group of
local councils whose members cater for the disposal of waste comprising 60% of the
Council collected waste in Northern Ireland. In April 2014 it was determined that the
application fell within the scope of the special procedure under Article 31 of the
Planning (Northern Ireland) Order 1991 in that it would involve a substantial
departure from the Development Plan for the area to which it related, be of
significance to the whole or a substantial part of Northern Ireland and affect the
whole of the neighbourhood in which it was situated.
[3] The planning system in Northern Ireland was reformed in April 2015 with the
commencement of the Planning Act (NI) 2011 ("the 2011 Act"). The 2011 Act
conferred planning powers on both local councils and the DoE. Section 26 of the 2011
Act provided that the DoE had to determine planning applications which it
considered to be regionally significant and the DoE accordingly took responsibility
for this application. In July 2015 officials within the DoE made a submission to the
then Minister, Mark H Durkan of the SDLP, recommending that he issue a Notice of
Opinion to grant planning permission.
[4] The Minister declined to accept the recommendation. He had concerns about
possible harm to human health and considered that the facility might create a
market for waste thereby adversely impacting on recycling and waste reduction.
Acting on the direction of the Minister a Notice of Opinion setting out draft reasons
for refusal of planning permission was issued on 23 September 2015. On 16 October
2015 the agent for Arc 21 exercised its right under section 26(11) of the 2011 Act to
request a hearing before the Planning Appeals Commission ("PAC") in respect of the
Notice of Opinion.
[5] In January 2016 DoE received advice from its Environmental Policy Division
("EPD") which explained that under new EU targets there was a significant increase
in the percentage of waste to be recycled with a significant reduction in the amount
permitted to go to landfill. These targets were material to the issue of need for the
proposed facility.
[6] On 5 May 2016 Assembly elections took place as a result of which all
Ministers ceased to hold their office. On 8 May 2016 the DoE was dissolved by
section 1 of the Departments Act (Northern Ireland) 2016 and its planning functions
were transferred to the Department. A new Minister, Chris Hazzard of Sinn Fein,
was appointed to the Department on 25 May 2016. The Department sought
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