Situation revealed in late-night weekend emails between clashing Katrina Godfrey and Nichola Mallon
A senior civil servant vehemently opposed Nichola Mallon taking a decision which refused planning permission for the controversial Arc21 incinerator in Mallusk, it can be revealed.
The Department for Infrastructure’s (DfI) permanent secretary, Katrina Godfrey, not only attempted to dissuade the SDLP minister once, but then emailed Ms Mallon in an attempt to get her to change her mind about rejecting the plan to build an energy from waste plant.
The incinerator, which has been proposed by a group of councils known as Arc21, was first envisaged a decade ago.
However, a series of legal challenges have delayed a final decision on planning permission, and now the issue looks set to head back to court.
In March, senior DfI officials said in a lengthy submission to their minister that the incinerator should be approved.
One argument against the proposal was that it could discourage recycling and tie Northern Ireland into vast contracts to feed the incinerator material for burning — or else face huge fines.
Almost 200 pages of internal documentation released under the Environmental Information Regulations shows Ms Mallon’s officials were clear that in their view “a need for the proposal” had been established.
However, Ms Mallon, who prior to becoming Infrastructure Minister had as a North Belfast MLA opposed the plan — disagreed.
In March, just weeks before Ms Mallon rejected the Arc21 application, BBC Spotlight revealed that Antrim and Newtownabbey Council — one of its members — was attempting to get out of the project.
In late March, after the collapse of the Executive and as the Assembly moved towards dissolution, she asked her officials for a letter to ask other ministers whether they would object to her taking planning decisions in the absence of an Executive.
Alistair Beggs, DfI’s director of strategic planning, said in a submission to Ms Mallon on March 23 that “cross-cutting, significant and/or controversial” decisions taken by the minister unilaterally were open to legal challenge. Ms Mallon was told that legal advice recommended she should not take the decision because “the likelihood of such a challenge succeeding, if brought, is high”.
A section has been blacked out but is followed by the words “however, we need to stress that this would be a questionable course for you to take”. He said that if all ministers agreed that Ms Mallon could take the decision that may reduce, but not remove, the legal risk.
Nevertheless, Ms Mallon proceeded with asking ministers for their views — something other ministers had been doing in an attempt to take some decisions in the absence of an Executive. No one responded.
On the morning of Saturday, March 26, Ms Mallon said during a video call with Mr Beggs that “she was not satisfied that there was a need for this facility and that she was still considering the application”.
Ten hours later, Ms Mallon’s private secretary sent an email to Ms Godfrey and Mr Beggs to say that “the minister’s decision is below”.
Ms Mallon’s written decision said: “I have very carefully considered all of the issues and the assessment of need set out in the correspondence from Minister Poots — that DAERA is ‘unable to provide a definitive statement of need as part of the ongoing planning process for the Hightown facility’ and that the department ‘believes on balance there is a clear need at this time for providing planning approval for more waste infrastructure. However, it is for DfI to decide if the Arc21 project is the right infrastructure.
“Continuing economic changes, such as fluctuations resulting from the current global pandemic, and emerging waste treatment technologies, may alter the quantity, composition and best treatment method of our waste arisings in the future.’”
Ms Mallon said: “In the absence of a definitive, updated statement of need from DAERA, I am not satisfied that sufficient evidence of need for this specific facility has been provided that would outweigh the negatives including the visual impact of this proposal.
“This application is therefore refused.”
Ms Godfrey responded 20 minutes later to say sharply: “I was not, given the strength and consistency of the advice provided by officials and legal advisers, expecting to see these decisions and they give me very significant concern.
“Additionally, and leaving aside the already stated risks around s20 of the NI Act and breach of the ministerial code, I am also not sure that the reason provided below would be considered a robust planning reason.
“Would you mind just double, triple checking with the minister for me that, taking account of all the advice provided to her and the very real risks of legal challenge that might be exceptionally difficult for the department to defend (and the associated costs and reputational risks), she is absolutely convinced she wishes to take this action?”
Ms Mallon responded that “need [for the incinerator] is a significant material planning consideration as has been stated on numerous occasions” and highlighted that the law had been changed recently to give her the power to take such planning decisions. Stressing that there may not be an Executive for some time, and the huge planning backlog, she said: “As minister, my job is to carefully consider all of the issues and in my view it is in the wider public interest to take the decisions I have on these three planning applications.”
Having failed to change Ms Mallon’s mind, Ms Godfrey continued to make clear her displeasure. In a reply sent late on a Saturday night, Ms Godfrey said: “For the record, I am satisfied that the correct advice has been given by officials… that decisions on these applications should not be taken without Executive approval… as the minister’s principal adviser, I have registered my serious concerns.”
She went on: “The minister has decided to depart from the advice provided by officials in relation to this application and… notwithstanding the risks to the department, the necessary action will of course be taken to give effect to her decisions in each case”.
In a text message to her private secretary the following day, Ms Mallon said that “officials have advised… I made my decision as the minister… the press release needs to come and be issued with the other two before noon”.
Her special adviser said she would “ensure your decisions are communicated to the public as is [the case] for all other decisions made by a minister”.
Clearly frustrated at the delay in announcing her decision, Ms Mallon then texted her private secretary to ask: “How much longer will this release take…?”
The emails also show how an unnamed employee at Arc21’s agents, Clyde Shanks, emailed the department to request a meeting with Mr Beggs.
When a colleague responded to say that was not possible immediately, the individual — whose name has been blacked out — refused to accept that, asking that he “make himself available” to explain what had happened.
Then, half an hour later, the individual lobbying for Arc21 appeared to have started a Zoom meeting, waiting for Mr Beggs to join. In an email, they said Arc21 was “accountable to a democratically appointed governing body and need to be able to respond to legitimate concerns”.
When the Belfast Telegraph asked DAERA — where Ms Godfrey is now permanent secretary — if she had anything to say about the issue, the department tried to push the questions on to her former department. In the end, neither department responded. Ms Godfrey also did not respond. Ms Mallon, who is no longer the minister after losing her seat in May’s election, declined to comment.
Indaver, the company to which Arc21 has subcontracted the project, said it had submitted a pre-action protocol letter to DfI — the first stage of a judicial review. It that Ms Mallon’s refusal came despite this being “the fourth such time a recommendation to approve has been made”.
Jackie Keaney from the company said: “The minister chose to ignore this advice issuing her decision on the final day before the pre-election ‘purdah’ period.”