Planning Court rejects challenge to refusal of permission for energy-from-waste plant
A local regeneration company has lost on all grounds in a High Court challenge to refusal of planning permission for an energy-from-waste (EfW) plant at Consett.
Project Genesis sought to quash the decision of the Secretary of State dismissing its appeal against the refusal of Durham County Council to grant planning permission. An inspector has recommended permission be given but this was overruled.
The developer applied under s.288 of the Town and Country Planning Act 1990 on the grounds that the Secretary of State's decision was not within the powers of that Act or that there was non-compliance with a relevant requirement, substantially prejudicing its interests.
Project Genesis is controlled by the Project Genesis Trust, a charitable trust formed to regenerate Consett, following the closure of its steel works in 1980.
It wanted to build the EfW on a 1.64 hectares vacant site at Hownsgill Industrial Park, This would have been some 22m tall and process up to 60,000 tonnes per year of refuse derived fuel, generating up to 3.48mw of electricity.
The North Pennines Area of Outstanding Natural Beauty (AONB) lies some 2.3km to the south-west of the development site and an area of higher landscape value (AHLV) some 500m to the south.
Durham refused planning permission because the plant’s scale, form and massing, “would cause unacceptable harm to [the AONB’s] special qualities” [and would] cause harm to the character and quality of the landscape which would not be outweighed by benefits of the development”.
The council said the plant would not conserve or enhance the AHLV and would harm the setting of a nearby Grade II listed farm house.
Project Genesis argued planning policy on the AHLV was engaged only by development at a site within it, not one merely near it.
Fordham J said in Project Genesis Ltd v Secretary of State for Levelling Up, Housing And Communities & Ors [2024] EWHC 368 (Admin): “I am unable to accept these submissions.”
He explained: “The ordinary and natural meaning of the words used in Policy 39 [3] is that the policy is engaged by a development ‘affecting’ an AHLV. The word ‘affecting’ is clear and unambiguous. It would have been very easy to draft the policy by reference to ‘within' or ‘in’.”
Project Genesis also argued that the Secretary of State should not have weighed certain landscape and visual impacts differently from the way the inspector had weighed them after a site visit.
Fordham J said: “It is true that the Secretary of State 'saw it differently', in terms of visual landscape and visual impacts.
“But it is important to understand in what way. The inspector had carefully addressed the relevant landscape and visual impacts. Those impacts were identified by the inspector, in terms of a quantified nature and degree of harm. These were identified for each viewpoint. The inspector used language, to identify with clarity, what was the nature of each assessed impact.”
The judge continued: “Yes, the Secretary of State 'saw it differently'. But that does not mean he was picturing something different from what the inspector was picturing at any viewpoint. Instead, the Secretary of State was 'seeing differently' the overall weight to be attributed to these already-calibrated impacts, having accepted and agreed with the 'calibration' for each one.”
Project Genesis also argued that the Secretary of State disregarded and/or departed without explanation from Government policies on the weight to be attributed to certain benefits of the EfW, which included new waste management resources, the generation of heat and electricity, being a catalyst for further regeneration and carbon dioxide reduction.
The court was told the Secretary of State made a basic error as the benefits of providing that and power and being a regeneration catalyst were weighed in the balance as a single composite item, with a single ‘significant weight’ and “misappreciated that ‘each' of these benefits, separately, carried ‘significant weight’’. But Fordham J said this point had been considered correctly. He also dismissed an argument that a planning condition imposed was invalid.
Durham argued that having lost on all four grounds Project Genesis should pay its summary grounds of resistance costs of £6,714 as it had little choice but to file an acknowledgment of service if it wanted to participate and these costs were reasonable and proportionate.
Fordham J refused saying an acknowledgment of service was not required for participation at the substantive hearing and although the council's summary grounds “were adopted to good effect at the substantive hearing” they had been written “as a failed attempt to persuade the court that the claim was unarguable; and their contents overlapped with the Secretary of State's grounds”.
Mark Smulian
