Neutral Citation No:  NIQB 43
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
The case made in the Order 53 Statement
(a) An Order of Certiorari to quash a decision of the Department made under section 26 of the Planning Act (Northern Ireland) 2011 on 13 September 2017 whereby it granted planning permission in respect of application reference T/2014/0114/F viz for "proposed development of a residual waste treatment facility incorporating a mechanical and biological (MBT) facility, an energy from waste (EFW) thermal treatment facility, an incinerator bottom ash (IBA) treatment facility, a refuse derived fuel (RDF) bale storage building, an administration/visitor centre and related infrastructure including widening of the Boghill Road from its junction with Hydebank Road to the west of the existing access road into Hightown Quarry sites and other ancillary works.
(b) An Order of Certiorari to quash the planning permission so granted.
(c) A declaration that the said decision and permission and each of them is unlawful, ultra vires and have no force and effect.
(d) Such further and other relief as the court shall deem appropriate.
(e) All necessary and consequential directions.
(a) The Department failed to understand correctly the law that regulates its decision making power and to give effect to it, and thereby acted unlawfully in making the impugned decision. In particular, the Department failed to understand and give effect to the following:
(i) Article 2 of the Departments (Northern Ireland) Order 1999 ("the 1999 Order") and section 17(3) of the Northern Ireland Act 1998 ("the 1998 Act"), whereby Ministers are "in charge of all departments".
(ii) Article 4(1) of the 1999 Order whereby "the functions of a department shall at all times be exercised subject to the direction and control of the Minister".
(iii) Article 4(3) of the 1999 Order whereby any functions of a department may be exercised by -
(a) the Minister; or
(b) a senior officer of the department, but "subject to the provisions of this Order", including the Article 4(1) requirement that the functions of the department be at all times exercised subject to the direction and control of the department's Minister.
(iv) Section 22(1) of the 1998 Act, whereby "an act of the Assembly or other enactment may confer functions on … a Northern Ireland department by name" but where any such conferral of functions is to be read with section 17(3) of the 1998 Act, which provides that Ministers are in charge of departments.
(v) Section 22(1) of the 1998 Act whereby "an Act of the Assembly or other enactment may confer functions on … a Northern Ireland department by name" but where any such conferral of functions is to be read with Articles 2 and 4 of the Departments (Northern Ireland) Order 1999, as aforesaid, which, per section 98 of the 1998 Act are "Northern Ireland law" and therefore the constitutional equivalent of any provisions in an Act of the Assembly (here, section 26 of the Planning Act (Northern Ireland) 2011 ("the 2011 Act")).
(vi) The common law requirement that all decisions must have a lawful basis and that, there being at the time of the impugned decisions no Minister in charge of the Department and exercising direction and control over the functions of the Department, there was no lawful basis for the Department to take the impugned decision.
(vii) The common law requirement that public decision makers do not misdirect themselves in law, such misdirection having here occurred given the words that were attributed to the Department in the Belfast Newsletter of 15 September 2017, namely that:
"While Departments normally exercise their powers subject to the direction and control of Ministers, the power to grant planning permission for regionally significant development proposals is vested in the Department."
(viii) The common law requirement that public decision makers do not act beyond their statutory powers when performing functions, which requirement has been breached insofar as the Department's statement that departments normally exercise their powers subject to the direction and control of Ministers is inconsistent with the statutory provisions referred to above and in particular Article 4(1) of the 1999 Order ("the functions of a department shall at all times be exercised subject to the direction and control of the Minister") and thereby ultra vires.
(b) The second ground is that the Department, when making the impugned decision of 13 September 2017, acted inconsistently with and/or manifestly without due regard to sections 20 and 28A of the 1998 Act, as read with paragraph 19 of the Belfast Agreement and paragraph 2.4 of the Ministerial Code. In particular, the Department failed to recognise and acted inconsistently with:
(i) Section 20(3) of the 1998 Act, whereby "the Executive Committee shall have the functions set out in paragraphs 19 and 20 of Strand 1 of the Belfast Agreement" and paragraph 19 of the Belfast Agreement, whereby the Executive Committee will provide a forum for the discussion of, and agreement on, issues which cut across the responsibilities of two or more Ministers.
(ii) Section 28A(i) of the 1998 Act whereby "… a Minister or Junior Minister shall act in accordance with the provisions of the Ministerial Code"; section 28A(10) of the Northern Ireland Act 1998 whereby "a Minister or Junior Minister has no ministerial authority to take any decision in contravention of a provision of the Ministerial Code"; and paragraph 2.4 of the Ministerial Code, whereby Ministers are under a duty to bring to the attention of the Executive Committee for discussion and agreement, inter alia, "any matters which cut across the responsibilities of two or more Ministers.
(iii) Its legal obligation to note that the decision of 13 September 2017 was cross-cutting and therefore of a kind which could lawfully be taken only by the Executive Committee.
(iv) Its legal obligation not to subvert the foregoing provisions which were subverted by the impugned decision.
May-November 2010 A scoping process to inform the Environmental Statement was undertaken and subsequently a scoping document was submitted to DOE Strategic Projects Team in May 2010.
27 March 2014 Arc21 submitted planning application T-2014-0114-F to the then Department of the Environment.
3 April 2014 The planning application was validated.
April 2014 The Department considered the application and determined that it was "a major planning application" for the purposes of Article 31 of the 2011 Act.
2 July 2014 A request for further environmental information in the form of an addendum to the Environmental Statement was requested by the Department of the Environment.
30 September 2014 "The Waste Prevention Programme for Northern Ireland – The Road to Zero Waste" was published by the Department of the Environment, Environmental Policy Division. The document stated that its intention was to assist Northern Ireland in moving along the "Road to Zero Waste".
2014-2015 No Arc21 submitted numerous objections to the application and engaged with local representatives.
June 2015 The Final Development Management Report recommending approval of the planning application was drafted by the Department of the Environment.
23 September 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.
16 October 2015 Arc21 requested a hearing before the Planning Appeals Commission (PAC) under section 26 of the 2011 Act.
January 2016 Correspondence from the DOE Environmental Policy Division to the Director of the Strategic Planning Division was received anticipating that there would be a regional requirement for thermal capacity between 668,000-759,000 tonnes to meet 2030 EU landfill/recycling targets.
9 March 2016 A pre-inquiry meeting was held by the PAC. At the meeting Arc21 indicated that they wished to submit further environmental information.
5 May 2016 The Northern Ireland Assembly elections were held. A new Executive Committee was formed. Northern Ireland departments were reorganised under the Departments Act (Northern Ireland) 2016 as read with the Departments (Transfer of Functions) Order (Northern Ireland) 2016 (SR 2017/76). Chris Hazzard of Sinn Fein became the Minister for Infrastructure, which had assumed the relevant planning functions of the Department of the Environment, that Department having been dissolved.
29 July 2016 Mr Hazzard was requested to provide directions on the position that the Department should adopt at any upcoming PAC hearing. The Department had recommended a position of neutrality. It is noted that the Infrastructure Minister agreed with the recommendation and instructed the Department to adopt a neutral position at the hearing in relation to the recommendations which the PAC might make.
August 2016 Further environmental information including updated ecology, air quality and transport assessments were submitted by Arc21 as part of its Statement of Case lodged in respect of the Public Inquiry.
11/12 October 2016 The hearing takes place. No Arc21 participated through a Statement of Case and rebuttals. On the first day of the hearing a representative for the Department indicated that circumstances had moved on since the Notice of Opinion had been issued and that the Department was no longer seeking to defend the stated reasons for refusal. The Inquiry was advised that the then Minister for Infrastructure, Chris Hazzard, was adopting a neutral stance and that the advice of the PAC would be taken into account in reaching a decision.
January 2017 Political difficulties in Northern Ireland lead to the collapse of power-sharing.
2 March 2017 Assembly elections were held but they did not result in the formation of a power-sharing government. The Assembly remained in place but did not convene.
8 March 2017 The PAC report was issued and recommended approval of the proposal with conditions.
March 2017 Officials in the Department liaised with officials in DEARA about the PAC report and recommendation. DEARA "welcomes the Commissioners' recommendations" by memo dated 24 March 2017
March-June 2017 Various deadlines for formation of an Executive passed. The Department awaited political developments on the appointment of a Minister.
29 June 2017 The Department began making preparations for the possibility of determining the application by exercising its powers in the absence of a Minister. It received legal advice on how this could be achieved.
July-August 2017 The Department liaised further with DEARA regarding the application.
24 August 2017 The application is referred to Peter May, the Permanent Secretary of the Department. Mr May considered that, in the light of the legal advice that he had received, he has "authority to exercise or to direct other senior officials to exercise the powers of the Department to determine this planning application". In doing so Mr May acknowledged, inter alia, that "a planning decision of this nature would ordinarily have been taken by a Minister on behalf of the Department."
29 August 2017 Mr May decided that planning permission should be granted. He sent a memo to that effect to the Chief Planning Officer.
13 September 2017 The planning permission was granted.
14 September 2017 The Belfast Telegraph carried a story that included statements from former Minister Hazzard about the reason for his neutrality in relation to the PAC hearing.
20 October 2017 The Applicant sent pre-action protocol correspondence.
27 October 2017 Papers for application for leave were lodged with the Court Office.
11 November 2017 Leave was granted on the two grounds now before the court.
6 December 2017 The Respondents' pre-action protocol letter was issued.
15 December 2017 The BBC News website carried a story regarding proposed compensation payments to victims of abuse stemming from the Historical Institutional Abuse Inquiry. That report stated that "the Head of the Northern Ireland Civil Service has written to victims explaining payments would be open to legal challenge without ministerial approval".
The affirmation of Mr May
"I am the most senior Civil Servant within the Department and I decided that it should exercise its power under the Planning NI Act to grant planning permission for this development notwithstanding the absence of a Minister for Infrastructure."
"The purpose of this affirmation is to explain why I considered it to be in the public interest that the Department should exercise its statutory powers to determine this planning application, notwithstanding the absence of a Minister."
"This provision does not have the effect of depriving senior officials from exercising powers of a department. Rather, it recognises that a department must act in accordance with the direction of a Minister, where they have been made. This may take the form of a specific instruction to officials or alternatively an expression of a preferred policy approach.
The legal effect of Article 4(1) is therefore to ensure that departmental powers are exercised in a manner consistent with the will of Ministers. The legal effect of Article 4(3) is to provide the legal authority by which Ministers (individual members of the Assembly) may themselves exercise these powers. Such a provision is necessary, since the relevant powers have been conferred upon a different body, namely a department. It is not accepted that either of these provisions require the appointment of a Minister as a pre-condition to the exercise by a department of its own powers.
The purpose of these provisions is also clear. They provide a mechanism for public accountability of departmental decisions through the Assembly. In addition, since a minister will also be a member of the Executive Committee, the provisions will facilitate decision making by a department in a manner which accords with the views, policies or (as the case may be) decisions of the Executive, thereby contributing coordinated decision making across government. While the 1999 Order and the 1998 Act anticipate that Ministers and an Executive will be in place, they do not require it. The constitutional position is illustrated by section 23(2) Northern Ireland Act 1998 which provides that the executive authority and prerogative powers of Her Majesty may be exercised by either a Northern Ireland minister or a department.
The distinctions between the legal status and powers of Ministers and departments are reflected in a number of other provisions within Part III Northern Ireland Act 1998, including in particular ss 17, 18, 21 and 23.
The references within s 17(3) Northern Ireland Act 1998 and Art 2(2) of the Departments (NI) Order 1999 to a Minister being "in charge" of a department do not reflect a statutory merger of ministerial and departmental identities or powers. Rather they are a reflection of the fact that members of the Assembly who are appointed Ministers are assigned to Northern Ireland departments, which in turn must act in accordance with the direction and control of that Minister, when expressed."
"He clearly considered that the Department should no longer consider itself to be bound by the views and directions of the former Minister, but that it should maintain an open mind as to the planning merits of the application and the prospect of an independent recommendation from the PAC."
"I also carried out an assessment of whether it was in the public interest for the Department to do so (make the decision) at that time."
"Prior to reaching a decision, I also took account of the fact that a planning decision of this nature would ordinarily be taken by a Minister on behalf of the Department."
"An Act of the Assembly or other enactment may confer functions on a Minister (but not a Junior Minister) or a Northern Ireland department by name."
Section 21(2) provides for functions in place before the enactment of the 1998 Act to continue to be exercisable by the department. So the 1998 Act made no change to existing departmental arrangements.
"4(1) The functions of a department shall at all times be exercised subject to the direction and control of the Minister.
4(3) Subject to the provisions of this Order, any functions of a department may be exercised by -
(a) the Minister
(b) a Senior Officer of the Department."
Arguments made by the parties
(i) Mr Orbinson submitted that the Department's status as a statutory body corporate does not change the fact that it is not legally distinct from its Minister. Its status does nothing more than give it a legal personality so that it may for instance have the capacity to acquire and hold land for the purposes of its functions and defend legal proceedings.
(ii) He also contended that as a matter of constitutional law the fundamental premise of Strand 1 of the 1998 Agreement which informs Part 3 of the 1998 Act and the 1999 Order is that Executive authority is to be discharged on behalf of the Assembly by a First Minister and Deputy First Minister and up to 10 Ministers with departmental responsibilities. It was submitted that all Northern Ireland departments will be headed by a Minister and that Ministers will have full Executive Authority for their respective areas of responsibility. It was submitted that this wording makes it clear that Executive decision making cannot legally occur in the absence of Ministers.
(iii) Mr Orbinson argued that the statutory references to a Minister being in charge of a department reflect both the democratic imperatives within Strand 1 and historical experience with devolution in Northern Ireland.
(iv) In grounding his argument Mr Orbinson placed heavy reliance upon the wording of Article 4(1) of the Departments (Northern Ireland) Order 1999 which he stated is clear in that it provides that at all times the functions of a department must be exercised subject to the direction and control of a Minister. The applicant submitted that this is a requirement for all pervasive direction and control. The argument was made that if there is no Minister, it is impossible for such direction and control to be expressed.
(v) In relation to the cross-cutting point Mr Orbinson submitted that the evidence of the respondent is clear that two Ministers should be involved in this decision. As such the decision making process offends the provisions of the Northern Ireland Act 1998 applying Re Minister for ETI's Application  NIQB 26.
(i) Northern Ireland departments are entirely different entities, they are recognised separately in section 21 of the 1998 Act and they have separate identities and functions.
(ii) The constitutional tradition in Northern Ireland has been for statutory powers to be conferred upon Northern Ireland departments. In particular Mr McGleenan stressed that the power to grant planning permission is one such power.
(iii) Mr McGleenan also made the argument that the Northern Ireland Act 1998 made no change to these existing arrangements in that powers previously conferred upon departments remained with those departments.
(iv) He further contended that the Minister may exercise the powers of the department or may direct officials as to how those powers may be exercised, however the powers of the department may also be exercised by its senior officers.
(v) Mr McGleenan placed emphasis upon the fact that the arrangements in Northern Ireland stand in contrast to the structure of central government in the United Kingdom. In summary he submitted as follows. Executive and prerogative authority is vested in Her Majesty, which is exercised on her behalf by Ministers who in turn act on the authority of an appointment by Her Majesty. Statutory powers and functions are conferred upon the Secretary of State and may be exercised by the Secretary of State. Departments of central government do not have a separate legal identity and powers are not conferred upon them. Departments are created by prerogative order, normally exercised by the Prime Minister. Departments of central government are un-incorporated bodies of civil servants who support the relevant minister in the exercise of his or her functions. As such Mr McGleenan drew a distinction between the constitutional provisions in Northern Ireland and the Whitehall model which he said were entirely different. He also drew an analogy with Scotland where the powers and prerogative authority formally exercised by the Secretary of State were transferred to Scottish Ministers not departments. He stated that a similar structure is followed in Wales. However, Mr McGleenan stressed that in Northern Ireland there is specific power given to departments.
(vi) Reliance was placed on the case of Robinson v Secretary of State  NI 390 in which the House of Lords held that the 1998 Act should be interpreted generously and purposefully in a manner which enabled the devolved institutions both to form and to function. In that sense the argument was made that the provisions should be generously interpreted in relation in particular to the 1999 Order.
"The key question for the Court is whether the Department may exercise its statutory power to grant planning permission in the absence of a Minister."
"Any functions of a Northern Ireland department (including functions discharged as a result of this sub-paragraph) are to be discharged subject to the direction and control of the Secretary of State."
This to my mind supports the argument made by the Applicant that departmental exercise of power must always be subject to direction and control whether by a Minister in the case of devolved institutions or the Secretary of State in the case of direct rule.
" The 1998 Act thus did not envisage a lengthy vacuum of power in Northern Ireland. While it would have made political and legal sense for provision to have been made for a resumption of power by the Secretary of State in the situation such as that which currently prevails it would in my view require clear wording to provide the Secretary of State with power to exercise the powers of as yet un-appointed ministers of the devolved administration in the intervening period. In the past the problem was dealt with by the imposition of direct rule under express statutory provision. That express statutory power was abrogated and fresh primary legislation to introduce direct rule would be required. In the current situation there is in effect a form of political vacuum in which a department continues to function but without ministerial direction."
 Undoubtedly a vacuum in which there are rudderless departments without ministers, the lack of a functioning Executive Committee and the absence of a sitting Assembly produces an essentially undemocratic system of unaccountable government provided effectively by senior civil servants who, as the respondent's counsel conceded, find themselves in an uncomfortable situation. The extent of their powers to take pressing policy decisions is unclear. The departments cannot arrive at a programme for government and the departmental cross cutting provisions do not work in the way envisaged under the Act. I have been informed there are likely to be a number of judicial review challenges in respect of determinations in other judicial review cases arising out of decisions made and decisions not made in the absence of ministers. The normal Westminster Convention is that civil servants do not make policy this being a matter for ministers who are accountable to Parliament. In Northern Ireland ministers are accountable to the Assembly but in the absence of an Assembly there is no democratic accountability in respect of civil servants exercising departmental powers."