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Can a council take legal action against itself?
Campaigners want Caerphilly County Borough Council to do just that in a bid to overturn plans for a controversial waste plant.
The Lower Sirhowy Valley Residents Group wants a judicial review into the decision to grant planning permission for a waste treatment facility at Nine Mile Point Industrial Estate in Cwmfelinfach.
The plans were originally approved by the council’s planning committee in December 2015.
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.
Source: https://www.judiciary.uk/you-and-the-judiciary/judicial-review/
But the residents group has written to every councillor in the borough, claiming the approval of the plans was “unlawful”.
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 also expressed fears over a potential increase in traffic in the area due to the waste plant.
What argument have campaigners put forward?
The main argument being put forward by campaigners revolves around an environmental impact assessment.
Campaigners have argued that council officers should have asked Hazrem to carry out such an assessment before the decision was put to the council’s planning committee.
In not doing so, council officers rendered “any subsequent planning consent unlawful”.
In a letter to councillors, the residents group said there are three options that could be pursued.
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.
Residents’ group member Jan Jones, who is a former councillor for the Ynysddu ward, said: “An environmental impact assessment was necessary, but the council papers said it was not needed – which must be a mistake.”
Fellow-residents’ group member Dr David Platt said: “Nobody is saying anything other than that this is a genuine error but the result of it unfortunately is to make it unlawful.”
Dr Platt said the group accepts residents will “not like every decision [the council] makes”, but he said all decisions made must be ‘lawful.’
In recent years, the campaigners have been supported by Islwyn’s Member of Parliament, Chris Evans; as well as Islwyn’s Senedd Member, Rhianon Passmore.
Ms Passmore said she has written to the council and Welsh Government ministers calling for an “urgent review and clarification of the legality of the planning permission that has been granted for Hazrem”.
She added: “This is further to my meetings with ministers in order to overturn this decision.
“I have opposed the development for many years and will continue to do so.”
A council spokesman said: “We are currently considering the matter and seeking our own legal advice.”
Hazrem was approached for comment.
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”.
Additional reporting by the Local Democracy Reporting Service
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