Planning Court judge rejects legal challenge to grant of planning permission by inspector for energy recovery facility

Objectors to a proposed energy recovery facility at Portland have lost their High Court bid to halt the project.

Mrs Justice Lang held in her judgment that points advanced by Stop Portland Waste Incinerator (SPWI) were unarguable and that a planning inspector’s decision to allow the project should stand.

Powerfuel Portland’s application had been refused by Dorset Council but this was overturned on appeal.

SPWI argued that the inspector had expressed no conclusion regarding the project’s compliance with the spatial strategy of the Bournemouth, Christchurch, Poole and Dorset Waste Plan or its proximity principle, and thus either misinterpreted Policy 4 of the plan, or failed to give adequate reasons or irrationally applied Policy 4.

SPWI said the plan’s spatial strategy focused on the south east of the area, in and near the Bournemouth Christchurch Poole conurbation and it was no part of the spatial strategy that there be a residual waste management facility on the Isle of Portland, or even near it, and so the Portland proposal was contrary to the plan's spatial strategy and its proximity principle.

Lang J said policy statements “should not be construed as if they were statutory or contractual provisions”.

She said: “In my view, the inspector was well aware of the relevant provisions of the waste plan and their application to the issues in the appeal. He correctly directed himself on the relevant policies,”

The inspector had been entitled to prioritise other elements of the plan, such as promoting self-sufficiency to manage the waste within the plan area and thus reducing waste miles, and addressing the need for 232,000 tonnes per year of capacity for managing non-hazardous waste.

“In my judgment, the claimant’s irrationality challenge does not come close to overcoming the high threshold required,” Lang J said.

She went on the say that decision letters on planning appeals are written principally for the parties who know what the issues are, and “an inspector does not need to rehearse every point made”.

Lang J found a number of sub-grounds concerning comparisons with a waste site at Canford were all unarguable.

Giles Frampton, director of Powerfuel Portland, said: “This legal challenge was not related to the planning merits of the project or the environmental effects – these had been previously assessed and approved by the Secretary of State and the Environment Agency. 

“Instead, it was a technical legal claim that the Secretary of State had not provided sufficient justification for her decision. Dorset Council did not participate as it had received legal advice that it would likely fail and concluded the use of public money would be unjustifiable."

He added: "The judgment is clear that there was no legal basis for any challenge, awards the maximum level of costs to the defendants and denies SPWI any permission to appeal.”

A statement on SPWI’s Facebook page said the group hoped to take its case to the Court of Appeal.

Mark Smulian