A campaigner’s bid to take Caerphilly County Borough Council to a judicial review over its decision to grant planning permission to a controversial waste plant has been rejected.
Campaigners argued that Caerphilly County Borough Council’s decision to grant planning permission for Hazrem to build a waste treatment facility in Cwmfelinfach in 2015 was unlawful.
No Environmental Impact Assessment (EIA) was carried out before the planning permission was approved nearly six years ago – something campaigners tried to challenge through the courts.
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.
However, it was thrown out by a High Court judge due to the amount of time passed since the planning permission was granted.
Campaigner David Platt led the charge to take the council to a judicial review, and was supported by members of the Lower Sirhowy Valley Residents Group.
The hearing saw Dr Platt’s barrister go up against barristers from both the council and site owners Hywel NMP, which bought the site from Hazrem earlier this year.
Following the hour-long hearing, which was held in Cardiff on September 2, Dr Platt told Caerphilly Observer: “The original planning consent should have been subject to an EIA.
“Where we came to grief was the timing. Normally, these things have to be done within around six weeks after the decision.”
He added: “I’m very disappointed. I knew we were up against it because of the time factor, but we felt our argument on the environmental impact outweighed the commercial interests of Hywel – but the judge thought differently.
“The residents group were very disappointed, but not surprised. We felt it was a cause worth fighting.”
He continued: “We have the option to appeal and are still deciding. It would go to the Court of Appeal if we decide to press ahead.”
A spokesperson for Caerphilly County Borough Council said: “We note the outcome of the High Court Appeal and we will continue to work with the applicant and other agencies to ensure that the proposed development continues to comply with all appropriate legislation to minimise any impacts on the surrounding community.”
The waste plant
Plans for the new waste treatment facility on Nine Mile Point Industrial Estate 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.
Earlier this year, the site of the proposed waste plant was sold by Hazrem to its directors, who in turn sold it to Hywel NMP.
Hywel NMP was set up in January this year and is backed by private equity investment firm Foresight Group, which is based in the Shard in London.
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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”.
January 2021 – Hywel NMP, which is backed by London-based private equity firm Foresight Group, is set up. Hazrem would later sell the site of the proposed waste plant to its directors, who would sell it on to Hywel NMP.
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.
May 2021 – The council’s Plaid Cymru and Independent groups call for clarity from the council over the situation, while, campaigners protest in Risca.
August 2021 – Dr David Platt’s application for a judicial review is turned down by a judge, but Dr Platt opts to renew the case, with a court date set in September to determine whether or not the council is taken to a judicial review.
September 2021 – Dr David Platt’s application for a judicial review is rejected by the High Court.
Additional reporting by the Local Democracy Reporting Service
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