In a case that could prove an embarrassment for Cardiff council, campaigners who are determined to block construction of an energy from waste plant in Cardiff Bay have had their hopes boosted by a top judge.
Members of the Cardiff Against the Incinerator (CATI) group say the council has effectively ‘condoned’ premature work on the project and short-circuited environmental checks and public consultation.
And now despite warning CATI of the ‘formidable problems’ it will face in court Judge Patrick Curran QC has opened the way for the pressure group to mount a full judicial review challenge to the council’s moves.
CATI, whose case is spear-headed by concerned local resident, Pauline Ellaway, is demanding that the council take enforcement action to bring work on the multi-million-pound project to a halt.
Viridor Waste Management Limited was granted planning permission for a state-of-the-art energy from waste plant and other facilities at Trident Park, Glass Avenue, in June 2010. But, the permission was subject to a number of tough ‘pre-commencement conditions’, compliance with which had to be approved by the council before construction work could start.
Premature
The council published a consultation notice concerning the required approvals on July 19 2012 and, the following day, Viridor began works on the site. That, said the judge, was ‘on any view a premature move’.
Ms Ellaway lives close to the site and is one of those concerned that parts of the 20-hectare development will be within 500 metres of homes and workplaces. She has been granted legal aid to bring her case to court.
She argues that, in failing to take enforcement action to stop the works, the council ‘acted irregularly and unlawfully’. She is also attacking the council’s decision in February this year to ‘revoke’ the pre-commencement conditions and to retrospectively approve the works already carried out.
Her legal team is adamant that, the works having started without the necessary approvals in place, the council was obliged to take action to restore the site to its previous condition and to require Viridor to put in a fresh, retrospective, planning application.
By adopting an ‘ad hoc’ procedure to ‘condone’ the premature works after the event, the council had by-passed proper procedures and circumvented public consultation and full consideration of environmental factors, Ms Ellaway argues.
Lawfully
For its part, the council insists that it acted lawfully and that that case against it is ‘unarguable’. It insists that it was fully entitled to approve details under the pre-commencement conditions once the development had started.
The council, with Viridor’s backing, points out that the company has a valid planning permission, with several years to run.
Viridor had submitted detailed environmental information prior to the February decision and, in the absence of any objection from the Environment Agency for Wales or the Countryside Commission for Wales, the council had properly decided that it was not ‘expedient’ to take enforcement action.
The council also says Ms Ellaway’s challenge has come far too late, commercial contracts having already been entered into, and that, even if she wins in court, it is extremely unlikely that Viridor will be required to down tools and restore the site to its pre-developed state.
Opening the way for a full judicial review, however, Judge Curran said he was conscious that Ms Ellaway – whilst facing ‘formidable difficulties’ in proving her case – is a ‘standard bearer’ for many other members of the public who are deeply concerned about the incinerator development.
The judge observed: “That said, the actions of Viridor in the first place in proceeding to begin works prematurely, as they did, and of the council in protesting only after being prompted by CATI, and then effectively condoning such conduct in the ways in which it subsequently dealt with matters, might conceivably raise matters of legitimate concern amongst those opposed to the development, such as Ms Ellaway, over the procedural propriety of what occurred”.
Despite expressing ‘considerable reservations’ about Ms Ellaway’s prospects of success in court, the judge said it would be ‘wrong to characterise the case generally as hopelessly unarguable’.
He ordered a full hearing of Ms Ellaway’s case at which all issues will be considered, including arguments that she delayed too long before launching her challenge.
Viridor
Following the announcement on Friday 27 September, that the Court has granted a full-hearing to the case concerning the construction of Trident Park EfW, Viridor said it had noted the decision.
Director of external affairs, Dan Cooke said Viridor is aware of the decision and notes the Judge said one ground was unarguable, and that he had considerable reservations on the other three grounds. The Judge also refused to allow the claimant to require the Council to issue an enforcement notice. As such Viridor remains fully confident in the planning position and consent for Trident Park EfW.
“We look forward to the outcome of the full hearing in due course. In the meantime construction progresses at the site, bringing jobs and economic benefits to Splott and Cardiff, and will deliver an essential service for households and businesses in SE Wales when operational.
Viridor, also pointed out that the High Court judge requested an expedited hearing of the case and did not order an emergency hearing as highlighted in much of the coverage surrounding this case.
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