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A campaign against controversial plans for a new waste plant in Cwmfelinfach has heated up.
Earlier this year, campaigners called on Caerphilly County Borough Council to take itself to judicial review over its decision to grant planning permission for a waste treatment facility at Nine Mile Point Industrial Estate.
But now a resident is preparing to take the council to judicial review himself, over fears the council is “dragging its feet” on the issue.
What is a judicial review?
Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.
In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.
It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision.
This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.
The waste plant
Plans for the new waste treatment facility were approved by the council’s planning committee in December 2015.
Hazrem Environmental Ltd, the company behind the waste plant, has previously said up to 100,000 tonnes of waste would be processed annually at the site, including the sorting and segregating of waste for recycling and the production of fuel.
Emissions from the burning of natural gas used in an on-site drier would include nitrogen dioxide.
There is a fear that a weather phenomenon known as temperature inversion could be a risk to public health.
Temperature inversion occurs when cold air is trapped by warm air above, thus restricting any clouds, haze or pollution from escaping an area, such as the Sirhowy Valley.
Campaigners have argued that council officers should have asked Hazrem to carry out an environmental impact assessment before the decision was put to the council’s planning committee.
In not doing so, council officers rendered “any subsequent planning consent unlawful”, the Lower Sirhowy Valley Residents Group has said.
Could the council take legal action against itself?
In a letter to councillors, the residents group – which has sought legal advice from a barrister – said there are three options that could be pursued by the council to reverse the decision.
The first option would be to revoke the planning consent – which would risk the authority having to pay compensation to Hazrem.
The second option would be for Welsh Government ministers to instruct the council to revoke the planning consent, which would also risk the council having to pay out compensation to the waste firm.
However, the third option would be for the council to fund an individual councillor to take the local authority to a judicial review in an attempt to reverse the planning consent. The residents’ group has said this approach has been successful in the past and would avoid the council having to pay out compensation to Hazrem.
If the original decision is reversed, a new planning application would need to be submitted by Hazrem.
Taking the council to judicial review
After writing to the council on February 19, the residents group received a response on March 17, which said the local authority was seeking its own legal advice on the issue, and that it could be several months before they hear from the council again.
Dr David Platt said: “Judicial reviews are time sensitive. This is not acceptable.
“If the council drag their feet for months, the court could kick it out.”
In a letter to councillors, Dr Platt said: “This looks like a transparent attempt to kick the can far enough down the road that I will either go away or the courts will declare the whole matter out of time.”
On Monday (March 22), he wrote to the council to inform it of his intention to take it to judicial review if he doesn’t receive a response by April 6.
Speaking to Caerphilly Observer, Dr Platt said: “If the council makes a mistake, I expect them to put it right and not bury their head in the sand until it all goes away.”
Dr Platt has left the residents group and will go through the process alone, using his own money. He said this is because it costs less to do this as an individual than as part of a group.
A spokesperson for Caerphilly County Borough Council said the authority “is aware of concerns in the community” and added: “We understand that a local opposition group has sought a legal opinion on the matter and the council is currently in the process of seeking its own legal advice. It is important that the council receives this before any further steps are taken.
“We would urge residents to be patient and allow the proper legal process to be followed.”
The story so far
December 9, 2015 – Hazrem’s plans to build a waste treatment facility at Nine Mile Point Industrial Estate is approved by the council’s planning committee.
Campaigners against the plans stage a protest outside the council offices in Tredomen.
July 2016 – Campaigners submit around 700 formal letters of complaint to Natural Resources Wales (NRW) about the plans
September 2016 – NRW says it is consulting further with Public Health Wales over the application by Hazrem.
September 2016 – Dr Gillian Richardson, who was then-Executive Director of public health at Aneurin Bevan University Health Board (ABUHB), wrote to NRW, warning that the plant’s emissions could affect local resident’s health, citing temperature inversion in the valley.
January 2017 – NRW turns down an environmental permit application for the waste plant, citing a potential “negative impact on the health of people living in the area”.
The move is welcomed by Chris Evans MP and Rhianon Passmore MS, as well as Ynysddu’s councillors at the time – Jan Jones and Philippa Marsden, who is now leader of the council.
August 2017 – NRW u-turns over its decision to reject the environmental permit application, following an appeal from Hazrem.
NRW says it will not contest the appeal, saying Hazrem included “extra technical information” in the appeal, which caused NRW to change its stance.
Rhianon Passmore MS criticises NRW and pledges to continue fighting against the plans.
September 2017 – Lower Sirhowy Valley Residents Group begins to look for £3,000 to cover legal fees as it aims to continue its opposition to the plans. The group launches a formal objection against Hazrem’s appeal for a licence to build the waste plant. A protest is held on the steps of the Senedd in Cardiff Bay.
October 2017 – A two-day public inquiry is held at Blackwood Rugby Club. A letter by Hollywood actor Michael Sheen is read out at the inquiry, describing the situation as “especially alarming”.
Roger Tunstall, representing NRW, said the body had “found no grounds to defend the initial refusal” following a “full and thorough consideration of the appeal”.
December 2017 – The waste plant is given the go-ahead by the Planning Inspectorate. A Planning Inspectorate report said NRW had based its decision on “worst case scenario” figures.
Chris Evans MP and Rhianon Passmore MS say the community has been “totally ignored” over the decision.
February 2018 – Residents hold a torchlit protest march at Nine Mile Point to continue the campaign against the waste plant. Attendees include Chris Evans MP, Cllr Philippa Marsden and former Islwyn MP Don Touhig.
Sophie Howe, Future Generations Commissioner for Wales, writes to NRW asking it to demonstrate how the Wellbeing of Future Generations Act is being applied during the environmental permitting process.
August 2018 – Chris Evans MP calls for a review into NRW following its handling of Hazrem’s environmental permit. He says NRW has “failed my constituents on a number of occasions”.
December 2020 – Residents group submits a Freedom of Information request to the council. After receiving a response, Dr David Platt, of the residents group, said: “We started to suspect that a mistake had been made by the planning officers back in 2015”.
February 2021 – Residents group writes to the council suggesting three ways it can overturn the decision to grant planning permission to the waste plant. Included is the suggestion the council takes itself to judicial review – which would avoid compensation having to be paid out to Hasrem should the decision be overturned.
March 2021 – Council responds to letter from residents group, saying it is seeking its own legal advice – and that the residents group may have to wait several months for a reply.
Dr David Platt prepares to take the council to judicial review himself, due to concerns the council is “dragging its feet” over the issue.
Additional reporting by the Local Democracy Reporting Service