Cardiff incinerator row to go to judicial review

An artist's impression of the Viridor plant in Splott, Cardiff

Campaigners trying to stop the building of a plant for burning rubbish from homes and businesses across south Wales will have their case heard in full.

The Cardiff Against the Incinerator (Cati) group has concerns about the safety of the plant in the city's Trident Park near Splott.

The High Court heard Cardiff council failed to stop building work which was started before strict planning conditions had been met.

A judge has allowed a judicial review.

The project to build a plant was started after five local councils - Caerphilly, Cardiff, Monmouthshire, Newport and the Vale of Glamorgan - formed the Prosiect Gwyrdd partnership to oversee the handling of their refuse.

Waste and recycling company Viridor was chosen to build the incinerator in Cardiff ahead of another proposal for Newport.

The plant will receive more than £100m from the Welsh government over 25 years.

Energy giant E.ON is in talks with Viridor to convert 172,000 tonnes of burnt household rubbish into energy.

Supporters say the incinerator could generate enough energy for around 50,000 homes.

The latest row over the plant concerns the building work which the protest group says had already started before strict planning conditions had been met.

Local resident Pauline Ellaway, a Cati leader, is demanding Cardiff council take enforcement action to bring work on the project to a halt.

'Premature move'

Ms Ellaway lives close to the site and is one of many people concerned that parts of the 20-hectare (50-acre) development will be within 500 metres of homes and workplaces.

Viridor was granted planning permission for the plant in June 2010 but it was subject to a number of tough conditions which had to be met and approved by the council before construction work could start.

But the High Court heard the council published a consultation notice concerning the required approvals on 19 July, 2012 and, the following day, Viridor began works on the site.

Judge Patrick Curran QC said the action was "on any view a premature move".

Ms Ellaway's legal team argued in court that in failing to take enforcement action to stop the works, the council "acted irregularly and unlawfully".

She is also attacking the council's decision in February this year to "revoke" the conditions set before work starts and to retrospectively approve the works already carried out.

Her legal team argues that with the works starting without the necessary approvals in place, the council should restore the site to its previous condition and to ask Viridor to put in a fresh, retrospective, planning application.

And it is argued that by adopting an "ad hoc" procedure to "condone" the premature works after the event, the council had by-passed proper procedures, public consultation and full consideration of environmental factors.

'No objections'

Cardiff council insists that it acted lawfully and that the case against it is "unarguable" and that it was fully entitled to approve details under the "pre-commencement conditions" once the development had started.

The council said Viridor has a valid planning permission with several years to run.

Viridor had submitted detailed environmental information before February's decision and with no objections from Environment Agency Wales or the Countryside Commission for Wales - both now part of Natural Resources Wales - the council had properly decided that it was not "expedient" to take enforcement action, the court heard.

The council also argues Ms Ellaway's challenge has come far too late as commercial contracts have already been entered into and, even if she wins in court, it is extremely unlikely that Viridor will be required to restore the site to its pre-developed state.

Opening the way for a full judicial review Judge Curran said he was conscious that Ms Ellaway - whilst facing "formidable difficulties" in proving her case - is a "standard bearer" for many other members of the public who are deeply concerned about the incinerator development.

He added the actions of Viridor starting work early and the council protesting only after being prompted by Cati - effectively condoning the work - may raise legitimate concern by those opposed to the development.

The judge also said it would be "wrong to characterise the case generally as hopelessly unarguable".

A spokesman for Prosiect Gwyrdd said planning and the procurement are completely separate processes.

He added: "The project looks forward to continuing to work with Viridor to approach financial close and sign the contract by the end of October."

Viridor director of external affairs Dan Cooke said the company was confident about the plant's future and looked forward to the outcome of the hearing.

He added: "In the meantime construction progresses at the site, bringing jobs and economic benefits to Splott and Cardiff, and will deliver an essential service for households and businesses in south east Wales when operational."