Legal challenge launched against Environment Agency over height of chimney for proposed incinerator

A group opposed to incineration has applied through law firm Leigh Day to the High Court for permission to judicially review a project whose chimney it complains is too small.

No Essex Incinerator (NEI) said in its application to the High Court that developer Gent Fairhead’s plan for the former Rivenhall Airfield near Braintree, Essex, should have been rejected as a breach of the industrial emissions directive because the chimney would be only 35 metres tall.

It said the Environment Agency (EA) should not have allowed this as a variation that made the project acceptable.

The application said: “The focus of the claim is the uniquely low stack height – 35m above surrounding ground levels – that is permitted by the [EA’s] decision and the impact on air quality for those living nearby.”

It said it was common ground that chimneys on such a plant would normally be 70-120m high and NEI knew of no other UK incinerator with such a short chimney.

“The only reason why the developer sought an environmental permit for this much lower stack height is because it has been refused planning permission for a higher stack,” the claim stated.

It said the aim of a stack was to disperse pollutants widely to reduce their impact on the immediate locality and so the higher the chimney the more effectively it did this.

The 35m stack was not the required ’best available technique’ as it “does not minimise the overall impact of emissions on the environment and was not calculated to safeguard human health”, NEI said.

According to the group, the EA should have looked at each aspect of the design individually - including the chimney height - and assessed whether it met the ‘best available technique’ test rather than look at the project as whole to come to a view on this.

“It is not lawful for the EA, instead, to look at the overall package of measures which affect impact of emissions and compare those to the previously determined acceptable level of impact,” the claim said.

“In other words, it is not lawful, without more, for the EA to accept a stack height that would not otherwise be [best available technique] because reductions in emissions earlier in the process mean that a previously adopted acceptable level of impact can still be achieved.”

NEI also challenged the project on the grounds that the EA failed to take account of the need to minimise the overall impact of emissions and that it took a decision contrary to its own guidance without good reason.

The claim said that the EA had accepted the case was covered by the Aarhus Convention and NEI applied for a default cap of £10,000.

Gent Fairhead has been contacted for comment.