Paralysis beckons if decision making is seriously in doubt
The judicial review of the decision by the Department for Infrastructure on September 13, 2017 to grant planning permission for a major waste disposal incinerator in the former quarrying area at Mallusk has concluded that the decision was unlawful. For the moment, not only has this project been stalled but, also, the anticipated rules on other comparable decisions for capital investment projects have been given serious degrees of uncertainty.
Mrs Justice Keegan has heard the submissions from the opponents of the scheme and the responses of the ARC21 organisation, along with the explanations for the decision to grant planning permission tabled by the Permanent Secretary. In the competent analytical style that epitomises a judicial review, readers of the review are offered a wide-ranging evolving presentation which has sequentially led the judge to reach her conclusion.
The judge is persuaded that the planning permission should not have been made in the absence of a responsible minister for that department. Given the important possible consequences, with little surprise, the decision is being appealed.
As a preliminary and cautionary starting point, the review did not question the merits of the proposal for a waste disposal incinerator. The arguments that persuaded the Planning Appeals Commission to support the application still stand on the record. The merits of the proposal on economic, environmental and social grounds remain.
Since the waste disposal incinerator proposal has been professionally evaluated, the delay, because of a successful challenge, is now imposing a 'cost' to our environmental and economic performance.
The issue now rests heavily on a question of legal legitimacy in decision making.
The appeal has a wider significance with applications across the full range of public sector administration and decision making.
Does the review decision close the route to a wide range of other public sector decisions such as has been suggested with reference to formal road closure decisions affecting motorcycle racing?
Does the absence of a minister in charge of a department mean that all decisions made in that department are now invalid? How wide ranging is that question about validity?
If there are decisions which give continuity to services based on recurring events which would normally be unquestioned, are those decisions now in doubt? Clarification of authorisation for recurring events is needed. Decisions on new policies and major capital projects are now being treated as 'on hold'. If decision making is seriously in doubt, serious paralysis beckons.
Alternatively, could departments now be given clearance when making decisions that can be demonstrated to be consistent with decisions of previous ministers?
Can precedent be an acceptable justification? In a comparable logic, can consistency be used to justify administrative decisions in the absence of a minister?
When examining the purported decision for the waste disposal incinerator, the report refers to the decision of the (then) minister to take a neutral position when the proposal was considered by the Planning Appeals Commission.
Might that neutral stance be taken as consistent with a preparedness to accept the findings of the PAC and an argument to be used in an appeal?
An appeal to challenge the findings of the judicial review might be used to consider whether a less 'black and white' outcome emerges.
The department is to appeal and the arguments advanced will frame the later outcome. The department is already in possession of legal advice, withheld as privileged from the judicial review, which helped to inform the original decision to approve the incinerator.
The appeal arising from the Judicial Review will help to clarify how other public sector decisions should be made.
The judicial review was not initiated to solve the larger question of what rules should apply to the functioning of the NI administration in the absence of an Executive.
As a consequence, that question is now unavoidable. An unacceptable paralysis points towards a resumption of direct rule from Westminster.
Company Report: Westland
Westland Horticulture has units in Dungannon and Pomeroy, with its registered business address in Belfast. The Northern Ireland registered company is a subsidiary of Westland Holdings, registered in the Isle of Man.
The principal activities are described as the processing and distribution of products for the gardening and horticulture markets, and the sale of bird seed and related products.
In 2015, the company changed its reporting financial year to a year ending on August 31. The results for 2015 are therefore for a period of eight months.
The company continues to expand, partly by acquisition and also by developing the local marketplace. Alongside the recent acquisitions, the company has delivered a significant capital programme of its own assets. Capital spending increased to £5.5m in 2014 and then was at lower levels in 2015 and 2016 before increasing to £7.3m in the most recent year to August 2017.
Recent operating profits at £5.2m have shown an improvement on the previous year although this result is still lower than in 2015.
The company has paid dividends to the shareholders each year: £1.5m in 2016 and £1.484m in 2017. Additionally, as a result of the disposal of subsidiary businesses Cronus Logistics, Crest Garden and SP Zoo to the parent company, this resulted in a dividend in specie increasing shareholders’ funds by £3.3m in 2015 and a reduction of shareholders’ funds of £9.6m in 2016.
Average employment in the group changed marginally in 2017 from 590 to 588 people.