Out-Law News 2 min. read

Planning ruling goes to heart of Northern Ireland decision making


Civil servants cannot make decisions on behalf of government departments in Northern Ireland where those decisions would ordinarily be taken by ministers, the High Court in the country has ruled.

The recent judgment was issued in a case relating to a September 2017 planning decision taken by a senior civil servant at the Department for Infrastructure, but has potential major implications for decision making across government departments in Northern Ireland, as highlighted by a BBC report.

The potential issues arise because there are currently no government ministers in post in Northern Ireland. The previous Northern Ireland Executive collapsed in January 2017.

The Department for Infrastructure (DfI) has confirmed that it intends to appeal against the High Court's ruling.

"The Department is seeking clarity on the law in this case and in relation to decision making on other regionally significant planning applications," the DfI said in a statement. "The Department is clear that it would be preferable for these decisions to be taken by ministers, however it has a duty to process planning applications and other planning cases and failure to do so has wide ranging implications for the Northern Ireland economy and the environment. It is therefore important to have clarity on the legal position in the continued absence of ministers."

"While the appeal process is underway, the Department will not take any further decisions on regionally significant applications and continues to carefully consider the full implications of the judgment on other planning cases.  The Department will continue to progress applications in readiness to reach a final decision," it said.

The case before the High Court concerned a planning application for a major new waste disposal incinerator in the Hightown and Mallusk area of County Antrim. Environmental campaigners 'No Arc21', via chairperson Colin Buick, challenged whether Department for Infrastructure permanent secretary Peter May had the power to grant planning permission for the new facility. The High Court ruled he did not.

In its ruling, the High Court considered the wording of article 4(1) of the Departments (Northern Ireland) Order 1999. It states that "the functions of a department shall at all times be exercised subject to the direction and control of the minister". The judge considering the case interpreted those words strictly. She said the wording is "expressed in mandatory terms by inclusion of the word 'shall'", and should not be qualified.

The judge reached that view on the basis that the alternative approach would offend "the ordinary and natural meaning of the provision", would not be "in keeping with the legislative context namely the [the Northern Ireland Act 1998] which forms the basis for government in Northern Ireland and which provides for ministerial oversight".

She reasoned her decision further on the basis that she does not believe that the UK parliament "can have intended" that civil servants would take decisions in the absence of ministers "without the protection of democratic accountability", and that it is not intended that where there is a protracted vacuum, that civil servants would fill the breach.

Belfast-based Laura Gillespie of Pinsent Masons, the law firm behind Out-Law.com, said: "Given that this important decision is now under appeal, there is ongoing uncertainty as to the extent to which decisions properly can and should be taken in the absence of ministers. The judge was clear that this case was decided on its own particular facts but it remains to be seen how far and wide its implications stretch."

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