Pickles wins appeal over quashing of permission for waste treatment plant

The Communities Secretary and waste company SITA have won an appeal over a High Court ruling that quashed planning permission for a controversial waste treatment plant in Cornwall.

Mr Justice Collins ruled in October 2011 that the Secretary of State had acted unfairly in his treatment of the Cornwall Waste Forum St Dennis Branch’s arguments relating to the European Habits Directive and regulations made under it. He concluded that there had been a failure by the Secretary of State to consider properly whether there needed to be a special assessment under the EU Habitats Directive.

At the time Cornwall Council warned that further delays to the Cornwall Energy Recovery Centre could prove "financially disastrous".

In Cornwall Waste Forum St Dennis Branch v Secretary of State for Communities and Local Government & Anor [2012] EWCA Civ 379, the Court of Appeal has now overturned that ruling, rejecting the Forum's claims in relation to legitimate expectation.

Lord Justice Cornwath added: “The Forum has not been unfairly deprived of anything….. If one cuts through the legal and procedural arguments, the only substantive criticism of the Secretary of State’s decision is in relation to his reliance, through the [Environment] Agency, on the 1% rule as a test of ‘significance’ under the Directive.”

The 1% rule is that if the long term ‘process contribution’ for a pollutant is less than 1% of the relevant Air Quality Standard, its effects are deemed ‘insignificant’.

The judge said: “The evidence before the inquiry was that the rule had been used in published guidance by the Agency, with the agreement of Natural England, for a number of years without legal challenge.”

Lord Justice Cornwath said the council, which initially challenged the use of the rule, did not maintain that challenge. “Instead they point to the severe economic and practical consequences of any further delay in confirming the permission,” said.

The judge added: “The Forum has chosen not to challenge its legality either by way of judicial review of the Permit, or as part of the present proceedings. We are asked instead to send the issue back to the Secretary of State so that he may address it, purely on the basis that it has not been shown to be unarguable, and without any persuasive reason to think that ultimate decision will be any different. In my view, the Forum has failed to show any valid grounds to justify that course.”

Lord Justice Cornwath said he would allow the appeal and confirm the validity of the Secretary of State’s decision.

Cornwall Council welcomed the Court of Appeal ruling. In a statement, it said: “While we recognise that those who have campaigned against the Secretary of State’s decision to grant planning permission for the Cornwall Energy Recovery Centre will be unhappy at this judgement, it will enable the council to take action to tackle the waste crisis facing Cornwall.

“As a result of this judgment, which reinstates the planning permission originally granted by the Secretary of State, the council will now be working with SITA to finalise the Revised Project Plan.”

A report setting out the next stages of the process will now be submitted to the council’s Cabinet.

David Buckle Project Director at SITA UK said: “This is extremely good news for Cornwall which desperately needs the CERC to be built and operational as soon as possible, as landfill space continues to dwindle.”

He added: “Today’s judgment means that we are a step closer to putting Cornwall’s residual waste to good use, with the production of enough energy to power the equivalent of 21,000 homes and the ability to provide heat to local industry.”