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BREAKING NEWS: Judge rules against Norfolk incinerator legal challenge

PUBLISHED: 10:31 08 December 2011 | UPDATED: 13:21 08 December 2011

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

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

Archant © 2011

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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