WESTBURY Town Council will seek legal advice on whether to challenge the decision to approve a highly-controversial £200million waste incinerator, to be built in the town.
Councillors have agreed to spend £3,000 to ask Leigh Day solicitors to comb through the Planning Inspector’s decision notice, made following a public inquiry, to find any possible prospects of challenging the decision. If found, the town council will meet again to decide if they wish to proceed.
Should any grounds for a challenge be found and the town council decides to proceed with the legal challenge, they have been told to prepare for a cost of roughly £60,000.
Northacre Renewable Energy Ltd (NREL) was granted planning permission on appeal by a government-appointed planning inspector last month, to build an energy-from-waste facility next to Arla Foods in Westbury. The appeal was launched as the applicant, NREL, who previously secured planning permission from Wiltshire Council for an advanced thermal treatment (ATT) facility, claimed that the unitary authority took too long to approve the change in technology from an ATT facility to an energy-from-waste facility using moving grate technology.
Councillors debated whether to seek the legal advice at a meeting of the town council on Monday 6th March, with many saying that they must explore all avenues, no matter how unlikely of success they are.
Explored every avenue
“For £3,000 we would be foolish to not ask the question to the solicitors,” said cllr Jane Russ. “Even if at the end of it all they decide to re-do the entire inquiry process, I would welcome that as we need to feel that NREL have fought just as hard for this application as we have fought against it.
“When a child approaches me in 10 years’ time and asks why we let the incinerator be built, I want to look them in the eye and say that the town council tried its hardest and explored every possible avenue.”
Cllr Mark Bailey, part of the town council’s incinerator task and finish group said, “We should not take the result lying down. Our recommendation is that the council seeks further legal advice to see if there are any possible grounds for challenging the decision. Any challenge will need to be made on the basis that there were legal errors in the decision making and not new evidence. We know that the possibility of finding these grounds will be extremely slight, but we must do everything we can to stop this monstrosity being built in the town.”
“Highly unlikely planning permission would be refused”
However, cllr Matthew Dean warned against the town council seeking legal advice, saying that it is very unlikely that if a legal challenge was won by the town council, that the decision to grant planning permission would be reversed.
“My concern is that a judicial review is not an appeal – the decision stands,” he said. “If a judicial review is to be successful, we need to demonstrate that either Wiltshire Council, the Planning Inspectorate, or the applicants have erred in law and that they have done so in such a massive way that the process would need to be re-run. It’s highly unlikely that the planning permission would be refused; it’s more likely that we would have to go through the same arguments again and likely end up at the same result.
“They may also say that the legal breaches, if found, aren’t big enough to re-run the process. I think we are at the end of the road unfortunately and we should look at ways to mitigate the effects of the incinerator once it is built.
“The head of development management at Wiltshire Council, Andrew Guest, who has over 30 years of experience as a planning officer, has spoken to the solicitor that dealt with this case for Wiltshire Council. Both agree that they do not think the inspector’s decision is legally flawed and they are recommending that a legal challenge by Wiltshire Council is not possible.”
In response, cllr Philip Harcourt said, “Westbury residents already think that Wiltshire Council regards Westbury as a dumping ground – they don’t believe a thing that they’re told by Wiltshire Council. I don’t think we can expect to persuade our electorate that the reason we are not challenging the decision is that Wiltshire Council says it is not a good idea. I think we would be laughed out of the building – we owe it to the people of Westbury to say we have tried as hard as we can.”
Cllr Mike Sutton added, “I have been involved with two judicial reviews in my time and they are very difficult to win unless it is on a very clear legal point. We should still seek this advice though, so we can at least say we tried everything and went down fighting. Once the advice comes back, I wouldn’t support it unless they give us a 75% chance of winning as we have a responsibility to look after residents’ money.”
The town council say that they have spent £40,000 so far in legal expenses, public engagement, and promotion, in the fight to stop the waste incinerator being built.
Wiltshire Council have decided not to challenge the inspector’s decision.
