PRESS RELEASE

A comprehensive victory for Capel

At the High Court on Thursday 5 March 2009 Mr Justice Collins formally allowed Capel Parish Council's claims and ordered:

• All three planning permissions to be quashed.

• The relevant references to the Clockhouse Brickworks site to be deleted from the adopted Waste Plan - the other sites are retained.

• Permission to appeal to the Court of Appeal was refused. Surrey County Council has 14 days within which to renew its application for permission to appeal to the Court of Appeal. 

• Surrey County Council to make an interim payment of £100,000 within 14 days in respect of Capel Parish Council's legal fees .

This is a comprehensive victory. It removes the Clockhouse Brickworks site from both policy WD5 (thermal treatment facilities) and policy WD2 (other waste management facilities) in the adopted Waste Plan. This means that there is no policy support, within the Waste Plan, for waste management facilities on the Clockhouse Brickworks site.

Key points from the judgment, handed down on 5 March 2009 , are attached. The headlines are:

• The inspectors, appointed to examine the Waste Plan, committed an error of law in assuming the Waste Plan to be sound which tainted their whole approach to the Clockhouse Brickworks site.
  

• The inspectors' approach to the “proximity principle” was flawed.
  

• Concerns about the health risks from aircraft vortices should have been properly considered by the inspectors.

• Concerns about potential traffic problems and potential solutions around access to the site should have been independently tested and adjudicated upon by the inspectors.

• The correct status of Clockhouse Brickworks as a greenfield site should have been taken into account by the inspectors.

• No assessment of nature conservation had been carried out.

This represents both a comprehensive and just outcome for the people of Capel. The village has been blighted with the prospect of a mass-burn incinerator for 10 years and residents have worked tirelessly over that time to defeat Surrey County Council's ill-conceived intentions. The County Council has now been defeated twice in the High Court and its approach to planning once again has been found to be terminally flawed. The County Council will have wasted hundreds of thousands of pounds of public funds in defending Capel Parish Council's claims and should squander no more. Given the strength of the Judgment a second attempt to seek leave to appeal will lead to a further substantial waste of public funds. County Councillors should not allow this to happen.

The Parish Council is represented by Ian Ginbey of Macfarlanes LLP and Peter Village QC and James Strachan, both of 4-5 Gray's Inn Square .

Capel Action Group

6 March 2009

Key points from the Judgment

• The inspectors, appointed to examine the County's Waste Plan, committed an error of law in assuming the Waste Plan to be sound whereas they were entitled to find that a policy was unsound even if there was no convincing evidence to that effect from an objector. It was incumbent on the inspectors to consider for themselves whether the policies were sound. The Judgment points to four specific references of presumption and also points to the absence of a robust and credible evidence base.

• It was common ground between the parties that the proximity principle applied only to “disposal” and not to “recovery”. It requires that disposal takes place as near as possible to the source of waste. It is obvious that Clockhouse Brickworks is far away from the main source of waste. Incineration is capable of amounting to recovery but only if the generation of energy is the primary purpose of incineration. Policies WD2 and WD5 refer specifically to other methods of dealing with waste than disposal. Thus any application other than recovery should fail since it would not be in accordance with the plan.

• Whilst believing that the proximity principle was applicable the inspectors' approach was based on a consideration that there had to be incineration somewhere in Surrey . This led them to conclude that disposal at Clockhouse Brickworks met the principle. Given that the site is far away from the main source of waste, this could only be valid if it was assumed that nowhere closer was possible. The inspectors' approach was flawed, as an unsuitable site cannot be regarded as appropriate; rather the possibility of incineration must be reconsidered.
  

• The inspectors failed to ensure that the concerns about health risks from aircraft vortices had been the subject of independent consideration. Surrey County Council had been satisfied but Surrey County Council is not independent. If the inspectors were persuaded that air quality would be adversely affected, the site could be deleted.

• Potential traffic problems were recognised by the inspectors, in that the access road to the site, the A24, was possibly inadequate. Subsequent evidence in the planning application was said to show that there would be sufficient capacity. This evidence had not been independently tested and in any event in relation to such an important aspect the inspectors should have made their own findings.

• Surrey County Council had identified the Clockhouse Brickworks as an operational site. Despite their acceptance that the site was properly to be regarded as greenfield the inspectors were content that the proper definition be left to “project level”, by which they meant the planning application. An error in identifying the nature of a site, in particular whether it was greenfield or previously developed, is of considerable importance. Thus the “project level” stage is in reality that to be undertaken in choosing specific sites. Surrey County Council's errors could have undermined the whole process of identification of suitable sites and it was necessary for the inspectors to look at the whole process afresh.

• No assessment of nature conservation had been carried out. This was significant because of the proximity of a SSSI and the presence of Great Crested Newts, a protected species. The inspectors concluded that the newts could be catered for but that they be considered when any application for development was made. It may have been, without the presumption of soundness, that the inspectors would have gone into the question of nature conservation in greater detail.

Capel Action Group

6 March 2009