Burning issue: An anti-incinerator banner in King's Lynn. Picture: Ian Burt.

BREAKING NEWS: Judge rules against Norfolk incinerator legal challenge

by DAVID BLACKMORE Thursday, December 8, 2011
10:31 AM

Campaigners have been dealt a major blow in their battle against plans for an incinerator in Norfolk.

At the Administrative Court of the Royal Courts of Justice today. Mr Justice Nicol refused an application for a judicial review into Norfolk County Council’s decision to award a contract for the controversial scheme.

The legal challenge was submitted by anti-incinerator campaigner Michael de Whalley and was put together by Cambridge-based legal firm Richard Buxton Environmental and Public Law.

The action was taken because campaigners claimed the county council had not followed the appropriate steps in awarding the contract to Anglo-US consortium Cory Wheelabrator.

Norfolk County Council awarded the contract to build the King’s Lynn incinerator, known as the Willows Power and Recycling Facility, to Cory Wheelabrator in March, despite a borough council poll which showed 65,000 people in West Norfolk were against it.

Mr de Whalley, a member of the King’s Lynn Without Incineration group, had arrived at High Court this week with a barrage of arguments as to why the council’s decision was “unlawful”.

The court had heard that the March cabinet meeting was preceeded by a Conservative group meeting of councillors, at which the party showed its “in principle support” for incineration.

Mr de Whalley claimed the Tory get together meant the subsequent public meeting was “a sham” and “a stage pantomine”. He argued the cabinet ignored a poll showing local objections and passed a “predetermined” decision.

But the judge ruled this claim “unarguable”, finding Mr de Whalley had not shown that the councillors “fettered their discretion” or that their decision was one which “no reasonable authority could make”.

He said: “It would be surprising if councillors who inevitably would have to face re-election at some point would be oblivious to a poll showing opposition.”

He also rejected a claim that the cabinet wrongly considered a mistaken assertion that the council could incur up to £20m costs by refusing the contract.

The judge said the figure came as just a “passing remark” by a council officer, not part of the full report into the issue, and would have been treated appropriately by cabinet members.

The cabinet’s decision was followed by a Cabinet Scrutiny meeting in April, at which a wider group of councillors chose not to refer the issue back to cabinet or to full council.

Mr de Whalley claimed that decision was also unlawful, arguing that a party “whip” was employed, forcing Tory councillors to support the cabinet’s decision.

But Mr Justice Nicol also rejected that claim, ruling: “Two members of the party voted for or abstained from the motions and there is no evidence that there were sanctions imposed by the party.”

He concluded: “For all these reasons I consider that none of the challenges made by the claimant to the decisions of March 2011 and April 2011 are arguable and, for these reasons, I would refuse permission for judicial review.”

The council said it had incurred more than £15,000 in costs fighting the legal battle, and Cory said it had spent more than £68,000.

Lawyers for Mr de Whalley told the court there was only £6,000 in his group’s coffers, and it should not be liable for the council’s or the company’s costs.

Mr Justice Nicol ruled that Mr de Whalley should pay £15,000 to the council, but was not liable for Cory costs. A spokesman for Cory declined to comment on the outcome outside of court.

Following the judge’s decision, Bill Borrett, county council cabinet member for environment and waste, said: “We have maintained throughout that the county council’s processes in deciding to award the waste contract have been robustly and properly followed.

“However, we are glad that this has been recognised by Mr Justice Nicol. Clearly, there are still a number of important hurdles for the project to overcome, but to get an early decision in this way is very pleasing.”

He added: “We remain in dialogue with DEFRA regarding the final release of Norfolk’s PFI credits.”

Mr de Whalley said: “There are many hurdles for the county council to pass in their race towards mass burn incineration. The first was the referendum. This hurdle they ignored and walked around. “Today’s judgement sees them pass the second hurdle, but the battle goes on and I am confident that this campaign will be successful.”

Mike Knights, vice chair of King’s Lynn Without Incineration, later added: “I am sure there will be many people in Norfolk deeply troubled by today’s refusal.

“Without a judicial review I am concerned highly questionable conduct at the top of Norfolk County Council will not be scrutinised.”

Dr Rupert Read, East Anglia Green Party leader and former Norwich Green councillor, has also contacted the EDP following the decision. He said: “It makes me so angry that there seems no democratic way to stop this deeply-unpopular incinerator from going ahead.”

Under the scheme, Norfolk County Council hopes to receive £169m of government cash using PFI credits to help offset the £500m plus cost of the project.

But the council suffered its own setback last month when environment secretary Caroline Spelman revealed she had put those credits on hold.

She said she wanted the council to provide “additional evidence” of a broad consensus to dealing with waste.

The council, which insists it was told by her department in September that all relevant information had been received, has since been speaking to officials from the Department for Environment, Food and Rural Affairs over the issue.

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23 comments

Since the general election, the student riots, civil service pensions the wars. Tories are now control freaks. Now the fiasco in Europe using the words “in the best interests of the UK” Best interests in bankers more like. The incinerator is all about money and people do not matter. If Cory Wheelabrator have not signed a contract how come their legal team got involved. Our American friends seem very cosy in County Hall since NCCs visit to their head office in the USA.

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Danny Jones

Monday, December 12, 2011
So much for free speech I know many people have tried to comment on this and have been blocked. Not a good call EDP

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Canary Boy

Sunday, December 11, 2011
Common sense 1 - NIMBYs 0

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NigelS

Thursday, December 8, 2011
The price of justice versus the cost of delay, discuss? What do all the MP's think should happen now?

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bedoomed

Thursday, December 8, 2011
Bring on the next round. If NCC think this is an end to the matter they will be severly dissapointed. This is just the start. By siting this type of old incinerator upwind (prevailing) of Kings Lynn, they are damning the population to inhaling dioxins which are deleterious to human health. Everyone, not just West Norfolk, should be horrified that a County Council would subject this upon their parishioners. They should be publically shamed.

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sallzy

Thursday, December 8, 2011
Ten comments in six hours?

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alecto

Thursday, December 8, 2011
This news marks of the end of the Tory party in West Norfolk. Political meltdown. Derrick Murphy now lives in a Lib dem Borough that was true blue. The last Borough election there was not Tory Candidate put forward his area. Vote them out.

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CleanAirPlease

Thursday, December 8, 2011
The point is not what the outcome of the judicial review is. It has identified we were told a pack of lies about the £20 million compensation package to NCCs mates Cory. This news marks of the end of the Tory party in West Norfolk. Political meltdown. Derrick Murphy now lives in a Lib dem Borough that was true blue. The last Borough election there was not Tory Candidate put forward his area. Vote them out.

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CleanAirPlease

Thursday, December 8, 2011
The Tories seem to take Norfolk votes for granted. Stop voting for the Tories and they might start to listen.

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I LoveNorfolk

Thursday, December 8, 2011
I bet the Editor could not wait to get this on the front page!

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maryjane

Thursday, December 8, 2011
So what next 'Civil Disobedience' .

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chucky noris

Thursday, December 8, 2011
This is all about money , peoples health and democracy dont count.

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Steve33

Thursday, December 8, 2011
For those of you unacquainted with the law (and that seems to be rather a lot of you), a judicial review is requested on one small aspect of a larger matter. Do you know how many judicial reviews you can have? There is another one in the pipeline and no doubt many more after that. And when are all the funny ha ha people going to realise that this is for some a matter of life and death. Do you find the fact that this incinerator if built will increase the air pollution of Kings Lynn even further and so for some who are clinging on to what quality of life they have this could be the tipping point. You find small children struggling to take every breath a real thigh slappingly funny joke do you? If you or any of your family find yourself in this position in the future think back to how hilarious you found this and think on.

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alecto

Thursday, December 8, 2011
Faux road-signs seem to be all the rage just now. Can`t beat a bit of originality, can you?

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Mad Brewer

Thursday, December 8, 2011
i think this just goes to show that in this case ---"the law is an ass" (Charles Dickens) and Democracy in this country is well and truly dead

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ggj666

Thursday, December 8, 2011
Refusing the application merely means that the judge is not able to make a judgement on whether NCC in chosing this contract, has acted according to its waste hirarchy and proper procedures. I also feel frustrated that such backward rubbish burner is being allowed to exist, when alternatives are applied everywhere in Europe these days. This needs appealing to the european level, a Britsh court will never consider the health and safety of those who have to pay to be polluted. Apart from the legal recompense from Europe, there is only non violent direct action left for campaigners, to say that Norfolk people have not made their wishes clear would be a lie. More than once have we instructed those who we contract with our waste, only to be deceived by their ignorant choices, now we have to take action, because judicial redress has been denied. I will from now on save all my valuable recylcables and together with others, find an alternative recycler who will pay us locally for what we collect. NCC has clearly failed to fullfill its waste recycling contract with its taxpaying clientle. They are accountable only at election time, sadly.

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ingo wagenknecht

Thursday, December 8, 2011
I am pleased that this has been catagorised by Mr Blackmore as a setback, which is accurate, rather than a victory for the council which it is not. There is still a very long way to go and Norfolk County Council will do well to remember that.

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Canary Boy

Thursday, December 8, 2011
This is a blow but it is only the first of many hurdles that have yet to be crossed. It is certainly not the end or a 'triumph' for NCC. Consensus is not proven, Planning consent has not been given, Environmental Permit has not been given, BCKLWN has not yet started its legal action and those who oppose the project will not simply put up their hands and say OK go ahead.

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Joy, King's Lynn

Thursday, December 8, 2011
Democracy. R.I.P.

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Lynn Boy 2

Thursday, December 8, 2011
There's a growing trend in feeling towards the Conservative administration at NCC. The car park in Holt being one issue, the feelings over the incinerator being another. What next?

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Jono Read

Thursday, December 8, 2011
to quote Windsor Davies from the tv show It Aint Half Hot Mum-- "oh dear how sad,never mind."

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bookworm

Thursday, December 8, 2011
Thank goodness.

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Whiley Boy

Thursday, December 8, 2011
it's all set in stone now

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Double Bill

Thursday, December 8, 2011