Judge rejects attack on grant of planning permission for incinerator in south London

A High Court judge has rejected a judicial review challenge to a London council’s grant of planning permission for a controversial energy-from-waste incinerator.

The claimant in Khan, R (On the Application Of) v London Borough Of Sutton [2014] EWHC 3663 challenged Sutton’s grant of permission for an incinerator at Beddington Fields. The site is Metropolitan Open Land.

He advanced five grounds of challenge, but was only given permission on four. They were:

1. There had been an error in the interpretation of the South London Waste Plan, which had been produced jointly by Croydon, Kingston, Merton and Sutton;
2. The defendant council erred in its consideration of the "very special circumstances" required by the National Planning Policy Framework for the grant of planning permission on Metropolitan Open Land;
3. The council fettered its discretion in the decision-making exercise; and

4. Sutton erred in its assessment of the environmental impact of the combined heat and power (CHP) pipework beyond the boundaries of the site.

Mrs Justice Patterson rejected the claim on all four grounds.

In a summary of the ruling, Francis Taylor Building – whose Saira Kabir Sheikh QC appeared for Sutton – noted the judge’s conclusions that:

• Sutton had not fettered its discretion and that the evidence demonstrated the council had taken care to ensure separation of roles;
• The local authority was entitled to form the judgement that the environmental issues relating to the as yet unknown route of the pipes need not be assessed when permission for the scheme was considered;
• There was nothing in the ground of challenge in relation to “very special circumstances”;
• The council had applied its own policy correctly including in respect of considering the correct baseline.

A copy of the judgment can be viewed here.