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Opposition groups on Caerphilly County Borough Council have joined forces, calling on the local authority to avoid legal action over a new controversial waste recycling plant.
Permission for the facility on land at the Nine Mile Point industrial estate in Cwmfelinfach was granted in December 2015, despite a series of protests held by residents with concerns over traffic and air pollution.
Last month the Lower Sirhowy Valley Residents Group wrote to all Caerphilly County Borough councillors, claiming the permission granted was ‘unlawful’ because an environmental impact assessment (EIA) was not carried out.
A member of the group, David Platt, is preparing a judicial review against the council.
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.
Why is the Lower Sirhowy Residents Group concerned?
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.
However the development has lawful planning permission.
Now, the council’s Plaid Cymru and Independent groups have put pressure on the council to avoid legal action.
Plaid group leader Colin Mann and Independent group leader Kevin Etheridge said the refusal to look at alternatives to a judicial review could lead to thousands of pounds in legal costs being run-up unnecessarily.
They hit out after a proposed notice of motion for discussion at next month’s full council was rejected.
The motion had called for an investigation into the planning decision.
Cllr Colin Mann said: “What a mess this Labour council has got itself into. Its failure to look constructively at a way of finding a solution without legal action deserves to be condemned.
“They have buried their heads in the sand and as a result the council taxpayers of Caerphilly County will pick up unnecessary legal costs. They have clearly not learnt the lesson of the vast legal bills run up during Labour’s senior officers’ pay scandal.
“There was an opportunity to debate this issue in full council, which hasn’t been done so far, but the council has shut that down.”
Cllr Kevin Etheridge said: “Communities and residents’ offer of engagement prior to the judicial review being submitted was rejected by Labour. It was most disappointing for the residents with opposition members ignored.”
However it’s important to note that it’s not the council bringing forward legal action.
A spokesman for the council said: “We want to reassure residents that this matter will be subject to full and transparent scrutiny as part of the forthcoming judicial review.
“Despite some of the claims being made in the community, it is important to note that at present the planning application at Nine Mile Point has lawful planning permission.
“It will be for the court to decide whether the council acted properly in granting the planning permission in 2015. We would urge residents to be patient and allow due process to be followed in this matter.”
In a statement issued on behalf of the Labour group, council leader Philippa Marsden said: “The motion submitted by the Plaid and Independents was clear in that any investigations that take place should by no means conflict with the legal process of the judicial review.
“It would seem that both Plaid and the Independents are now arguing against a motion for legal action that they submitted in a veiled attempt to play on the concerns raised by the community.
“Scaremongering tactics should be avoided at all costs particularly when community tensions are high. I do not feel residents should be used as pawns in political games. As always I will ensure that due process is followed on this matter.”
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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 Hazrem 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 steps away from the residents’ group and prepares to take the council to judicial review himself, due to concerns the council is “dragging its feet” over the issue.