Campaigners celebrate a comprehensive victory for Capel and the Capel Action Group
At the High Court on Thursday 5 March 2009 Mr Justice Collins formally allowed Capel Parish Council’s claims and ordered that:
• All three planning permissions be quashed.
• The relevant references to the Clockhouse Brickworks site be deleted from the adopted Waste Plan – the other sites are retained.
• Permission to appeal to the Court of Appeal be refused. Surrey County Council has 14 days within which to renew its application for permission to appeal to the Court of Appeal.
• Surrey County Council make an interim payment of £100,000 within 14 days in respect of Capel Parish Council’s legal fees.
This is a comprehensive victory. It removes the Clockhouse Brickworks site from both policy WD5 (thermal treatment facilities) and policy WD2 (other waste management facilities) in the adopted Waste Plan. This means that there is no policy support, within the Waste Plan, for waste management facilities on the Clockhouse Brickworks site.
The full decision is available to download as a .pdf file
Key points from the judgement, handed down on 5 March 2009 include:
• The inspectors, appointed to examine the Waste Plan, committed an error of law in assuming the Waste Plan to be sound which tainted their whole approach to the Clockhouse Brickworks site.
• The inspectors’ approach to the “proximity principle” was flawed.
• Concerns about the health risks from aircraft vortices should have been properly considered by the inspectors.
• Concerns about potential traffic problems and potential solutions around access to the site should have been independently tested and adjudicated upon by the inspectors.
• The correct status of Clockhouse Brickworks as a greenfield site should have been taken into account by the inspectors.
• No assessment of nature conservation had been carried out.
The Capel Action Group’s press release declares:
This represents both a comprehensive and just outcome for the people of Capel. The village has been blighted with the prospect of a mass-burn incinerator for 10 years and residents have worked tirelessly over that time to defeat Surrey County Council’s ill-conceived intentions. The County Council has now been defeated twice in the High Court and its approach to planning once again has been found to be terminally flawed. The County Council will have wasted hundreds of thousands of pounds of public funds in defending Capel Parish Council’s claims and should squander no more. Given the strength of the Judgement a second attempt to seek leave to appeal will lead to a further substantial waste of public funds. County Councillors should not allow this to happen.
This decision gives hope to those campaigning against incineration and for better, more sustainable methods of waste management around the country.
Neil Pitcairn, UKWIN Treasurer and campaign activist explains:
From what I’ve read so far of the judgement there are fundamental weaknesses in the Inspectors’ evaluation of the Surrey Waste Plan (SWP). The presumption of soundness throughout, and the failure to question whether incineration is a viable option in Surrey at all. This means that any approval of Trumps Farm without a re-examination of the SWP would be pretty shaky.
The following excerpts from the decision may be of interest to many campaigners:
It is recognised that there is a hierarchy, as it were, of methods of dealing with waste. These, in order of desirability, are re-use of material, recycling and composting, generation of energy and disposal. It is perhaps obvious that incineration will merely be a form of disposal unless its main purpose is the production of energy. Thus in order to place it above disposal in the hierarchy, there must be an ability to generate energy from whatever development may be permitted.
There is a [planning] condition that the land must be returned to its state prior to any development. That condition means that it is to be treated as a Greenfield site and it is upon that part of the site that it is proposed that an incinerator be built.
…in the context of this case where it was accepted that Clockhouse Brickworks was by no means ideal – quite the contrary since an incinerator on a Greenfield site in the countryside was obviously likely to be regarded as an undesirable development – the inspectors’ consideration should have required a rigorous examination of any suggested alternative sites and of whether in reality an incinerator alternative to landfill was achievable.
[Surrey County Council's solicitor] Mr Drabble submitted that the evidence before the inspectors from the SCC showed that there had been a substantial exercise carried out to make an informed assessment of suitable sites and to reject those which were unsuitable. That may be so, but the inspectors were not entitled to assume that that had been done correctly, particularly where the evidence given on behalf of the claimant questioned on plausible grounds whether the exercises had indeed been satisfactory.
Incineration is capable of amounting to recovery but only if the generation of energy is the primary purpose of the incineration.
And finally:
The inclusion of Clockhouse Brickworks in WD2 and WD5 must be quashed. I am aware that this may affect the overall validity of the SWP particularly as the inspectors’ view was that the sites proposed were only just sufficient to meet the waste management needs, especially as most were in the Green belt and so subject to the usual planning constraints applicable to any development in the Green Belt. However, subject to any arguments counsel may wish to raise, I think that the consequential effect of quashing is a matter for SCC to deal with as it thinks appropriate.
