A £240m incinerator project in Northern Ireland remains stalled after the Court of Appeal rejected an appeal, on constitutional grounds, to allow it to continue.
The incinerator would have been built to treat up to 300,000 tonnes of waste for ARC21, which comprises six councils in the province’s east.
Judges ruled in May that Peter May, permanent secretary at the Department for Infrastructure, lacked the power to approve the project because only a minister could do so.
The project has been in limbo as Northern Ireland has had no ministers since the power-sharing executive collapsed last year.
Giving judgment on ARC21’s appeal, Declan Morgan, lord chief justice of Northern Ireland, ruled that a civil servant could not take such a controversial decision even though the absence of any minister meant the matter could not be decided.
In his ruling, he said that “incineration as a means of waste disposal is controversial having regard to the political views expressed”, and so the decision had to go before an executive committee of ministers, even though that did not at present exist.
“It would be contrary to the letter and spirit of the [Northern Ireland peace] Agreement and the 1998 Act for such decisions to be made by departments in the absence of a minister,” the ruling said.
“We are reinforced in these views by our recognition of the constitutional position of civil servants. That role is to advise ministers and be accountable to them. [ARC21’s] submissions would effectively turn civil servants into ministers.
”Such a remarkable constitutional change would require the clearest wording, and we do not consider that the Northern Ireland Budget Act 2018 provides any basis for the implication of such a major departure from established constitutional principles.”