The planning application for the construction of Envirofusion’s incinerator off Alfreton Road was passed by the City Council’s Planning Control Committee last October. OARI considered that the very real risks of fire and explosion from the incinerator and the associated plant and equipment were not properly presented and considered at the planning meeting, so we have gone to the High Court for a Judicial Review of the decision.
In going for a Judicial Review, the serious applications need to be sorted from the frivolous, so the first step is to get approval from a Judge in Chambers based on papers submitted by all the parties involved. We failed this first test but all was not lost for we then sought a Permission Hearing where barristers argue the situation in front of a single Judge in open Court. We lost this one too but our legal team considered the Judge had made significant errors in arriving at his decision, so we have gone to the Court of Appeal to contest the Permission Hearing decision.
The grounds for the Appeal are:
1. The Judge made a fundamental error of law in stating that fire and explosion are included in the Environmental Permit legislation. The Environmental Permit covers emission limits, noise etc but not fire and explosion and is a separate application procedure from planning. We have an email from Derby City Council’s Senior Environmental Health Officer specifically stating that fire and explosion are not covered by the Environmental Permit and, having checked the legislation, he is right. The City’s lawyers however convinced the Judge he had made a mistake!
2. The Judge did not recognise that essential Envirofusion documents submitted for the Environmental Permit covering fire and explosion were not made available to the Planning Control Committee. In the Environmental Risk Assessment it states that the magnitude and consequences of fire and explosion giving rise to undue gaseous emissions were both likely to be “high” although the risk of it happening was “low” (in the vocabulary of risk analysis there is also a “very low” risk level of occurrence). DCC maintained that as reference to these documents was made in a 3 minute presentation at the planning meeting that the Planning Control Committee were properly informed!
3. The Judge did not appreciate that the Planning Officer was economical with the truth in his Report to the Planning Control Committee stating that “the Health & Safety Executive does not advise, on safety grounds, against the granting of planning permission”. The safety of the Envirofusion site from fire and explosion on the adjoining Energas site was not considered by the Health & Safety Executive because less than 100 people would be employed by Envirofusion, the Envirofusion buildings are less than 3 storeys high, no members of the public would be on the Envirofusion site and the site did not give access to a dual carriageway or motorway! The incinerator does not require a Control of Major Accident Hazards (COMAH) licence so the Health & Safety Executive were not concerned about fire and explosion on the Envirofusion site itself. Neither of these Health & Safety Executive limitations and conditions, which significantly “colour” the Officer’s statement, were put to the Planning Control Committee.
4. The Judge did not take in to account the only comprehensive technical assessment of the proposed incineration process submitted to the Planning Control Committee OARI commissioned Andrew Rollinson, an expert in incineration, to assess and comment on the proposed incinerator and the associated plant and equipment. Rollinson identified a number of possible issues with the proposal that could result in fire and explosion and the emission of dangerous and lethal gases (dioxins and furans in particular). The Planning Officer’s Report included just two unattributed paragraphs from the Rollinson report. There were members of the Planning Control Committee who were not aware before the planning meeting of Rollinson’s report. Rollinson made reference to the Dargavel incinerator in Scotland that was plagued with fire and explosion and undue gaseous emissions from its start up to its closure four years later. (a coincidental side line – Dargavel is on the former site of the one of the largest munitions factories in the land, so fire and explosion were an inherent risk!). There were or are at least 10 other incinerators in the UK with major fire and explosion and emission issues!
If we win in the Court of Appeal then we still have to contest the Judicial Review. If we lose then there is nothing more we can do and the planning permission will stand. According to our solicitor it is likely to be another two months before the Appeal decision is published.
And then apropos nothing, a defence against emissions from the incinerator chimney being a danger to the community is that the prevailing winds are from the south west, away from the heavily populated areas of Darley Abbey and Allestree. Since the 24 February this year, when the Beast from the East first blew, the prevailing winds have been from the east for nearly 4 months!