Local campaign group, Dove 2000 Ltd, Newhaven Town council and the Lewes branch of Friends of the Earth were backed by a cohort of residents in their opposition to the scheme, which will see the construction of a “mass burn” incinerator capable of handling 242,000 tonnes of waste per year.
East Sussex county council granted planning permission for the scheme in November last year but a Pollution Prevention and Control Permit (PPC), issued by the Environment Agency in relation to the proposed incinerator, was overturned by the High Court just three weeks later.
This is a situation where the local landfill is due to run out in less than a year's time
Mr Justice Sullivan – High Court
Barrister, Richard Harwood, on behalf of Dove 2000 – which stands for the Defenders of the Ouse Valley and Estuary – argued that the council had resolved to grant planning consent “unlawfully” in light of the PPC being overturned.
He told the judge that the legal challenge to the PPC had been mounted by active Dove member, Mrs Nicki Day, and, on December 5 last year, the Environment Agency threw in the towel and agreed that it should be quashed.
And Mr Harwood argued that meant the PPC “never had any legal effect whatsoever” and, as the November planning permission was based on it, that too should now be overturned.
However, lawyers for the council and the company behind the incinerator scheme, Veolia ES South Downs Ltd, insisted that the Environment Agency had only agreed to withdraw the PPC temporarily to make amendments, and that a new draft PPC was issued on July 16 this year.
Mr Justice Sullivan yesterday (July 22) dismissed the judicial review challenge to the scheme, despite observing: “This cause has generated the most public interest of any planning application ever dealt with by East Sussex County Council. The number of objectors is numbered in thousands.”
The judge went on to say that the waste incinerator will generate 16.5 megawatts of electricity as a byproduct of the disposal of refuse and represents “an important step in the aim of reducing the portion of waste going to landfill”.
“In the real world this is a situation where the local landfill is due to run out in less than a year's time,” the judge said, adding that a “robust study” by the County Council had “indicated that North Quay is the most appropriate site” for an incineration plant, after considering alternatives.
Separate issues
Turning to the objectors' main point, the quashing by consent of the PPC, the judge went on to say that planning permission and pollution control, whilst being “complimentary” areas, raise separate issues and do not stand or fall together.
The judge said: “It is important to see why, in this case, the Environment Agency agreed that the permit should be quashed.
“If one looks at a letter from the Agency written last November, for its part the Agency said that it had not set out its reasons for granting permission in relation to CO2 emissions as fully as it could have.
“It is not consequent upon that that there are any issues of concern that the Council said would be addressed which are not being addressed, or controlled.
“The proof of the pudding is that, on July 16, the Environment Agency issued a new draft permit, subject to consultation.
Permit
“If the Agency's conclusions in that permit are legally flawed, and are the subject of future judicial review proceedings, the incinerator will not be able to operate without a licence.
“But that does not mean that the grant of planning permission was flawed.
“For those reasons this application must fail,” the judge concluded.
The ruling was welcomed by Veolia Environmental Services, which said in a statement: “We are pleased with the decision from the Judge on this matter. We will endeavour to build this much-needed facility for the communities of East Sussex and Brighton & Hove to ensure they have a place for their residual household waste to go as local landfill is running out.
“As a company our aim is to provide councils and residents with waste management systems that meet their environmental needs. Recycling is always the first option to treating waste and the Newhaven site will only process materials that could not otherwise be recycled generating electricity for the area and diverting waste from landfill,” it added
Reacting to the result of the High Court case, Phil Michaels, head of legal at Friends of the Earth said: “We are disappointed the High Court did not accept that the decision to approve the Newhaven incinerator was unlawful.
“We are still very concerned that this incinerator will prevent the achievement of recycling targets.
“We will now carefully consider the Court's judgment before deciding whether there are grounds to appeal,” he added.
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