The Executive Committee (Functions) Act 2020 - better or worse for planning decision making in NI?

A significant Act of the Northern Ireland Executive – the Executive Committee (Functions) Act – was passed on 28 July and will now go forward for Royal Assent. Introduced to Stormont on 6 July it has been passed with considerable speed and could have important consequences for decisions on regionally significant planning applications. The Act also has broader significance to NI government decision making and has fuelled considerable debate over its wider political implications. 

The consequences of the Northern Ireland Court of Appeal decision in Buick’s application as Chairperson of NOARC 21 [2018] NICA 26 continue to reverberate across NI government decision-making some 2 years after the judgment. The original challenge was over a decision to approve an energy from waste plant in North Belfast, at a time when the Stormont Executive was dissolved and no Minister was in place to make the final planning decision. However, the ruling of the Court of Appeal (upholding that of the High Court) – that the decision was unlawful – has had far reaching consequences. 

The focus of the Court of Appeal’s judgment was that the decision to approve was "cross-cutting" in that it was of such regional significance and (political) controversy that other Ministerial departments and the Executive had to be involved in the final decision. It is this requirement for the Executive to be consulted that the 2020 Act now removes.

In the Buick judgment, the Court of Appeal considered that the decision ought to have been referred to the Executive Committee under section 20 of the Northern Ireland Act 1998 (“NIA 1998”) on two grounds. First, because the decision on the planning application involved the interests of the Department for Agriculture, Environment and Rural Affairs (“DAERA”) in the matter of environmental and waste policies and the Executive Office due to issues relating to compliance with EU Directives; and secondly, the matter more broadly was both significant and controversial. 

The Bill amends s20 of the NIA 1998 in two key ways. Any non-planning decision made by a Minister of any Department is now only referable to the Executive where it is “significant or controversial” or “affects the exercise of the statutory responsibilities of one or more other Ministers more than incidentally”. Second, any decision of the Department of Infrastructure (“DFI”) or its Minister under the Planning Act (other than in formulating planning policy) is no longer referable to the Executive in any circumstances. 

Implications

Undoubtedly the Act is a gateway to quicker planning decisions with the Executive Committee no longer a potential barrier to the DfI Minster making crucial and timely decisions on infrastructure projects. This is in many respects welcome given the backlog of regionally significant planning decisions that in part came out of the original Buick decision. The accelerated passage of the Act means we are likely to see long-awaited decisions in relation to regionally significant infrastructure applications forthcoming.

Following Buick, the High Court quashed the decision to proceed with the A5 road scheme upgrade and also overturned the approval of the North-South interconnector. A decision on the Casement Park stadium has also been delayed and other regionally significant projects remain in limbo. The impacts of Covid-19 on both the planning sector and economy as a whole may also be mitigated by these changes. 

That said, the Act could lead to concerns (particularly by opponents to a project, whether commercial or private) over a perceived lack of scrutiny on controversial infrastructure projects and an increased risk of departments working in functional and political silos. Almost all regionally significant planning applications are controversial in some form and in many cases different political parties will have opposing views on their merits. Any DfI Minister would in effect have powers beyond those of their fellow Ministerial colleagues and be subject to less checks and balances. 

Outside of the planning sphere, the change to the threshold for what decisions are “cross cutting” potentially has wide implications for governance in Northern Ireland. This may raise the bar to those issues which previously would have come before the Executive Committee, albeit that matters that are “significant and controversial” (except planning decisions) must still be referred. However, there remains scope for interpretation over the meaning of “significant and controversial” and “more than incidentally” – and where room for doubt exists the door remains open for legal challenge.

The Buick judgment has directly and indirectly impacted on many areas of NI governance, and for a decision on a single planning decision to have such wide-ranging effects is both remarkable and testament to the fundamental importance and implications of judicial oversight. It seems that the judgment will continue to influence decision-making and wider political discourse for some time to come. 

You can read the legislation here.  

Contributor: Sarah Mulholland

TLT’s Belfast-based Planning, Environment & Clean Energy team advises on all aspects of planning and environmental law in Northern Ireland and are qualified in Northern Ireland, England & Wales and the Republic of Ireland. 

For more information, contact Andrew Ryan or Sarah Mulholland.