A judicial review at the High Court into the decision by Sutton Council to grant planning permission to build an incinerator in Beddington has found in favour of the council.

Green Party member Shasha Khan, alongside a large group of anti-incinerator campaigners, brought the High Court action against the council and developers Viridor in September, but today was told Judge Frances Patterson dismissed his claims.

The campaigners argued Sutton Council had granted permission due to “very special circumstances”, which were not as dire as had been presented, stating it had misinterpreted the South London Waste Plan, gone against its own planning policies and had been influenced in its decision-making by a contract signed with Viridor two years earlier.

The group also questioned conclusions reached by the council over the environmental impact the incinerator will have.

The proposed site, in Beddington Lane, is designated Metropolitan Open Land (MOL) and is due to become a country park after 2023 when permission to use it as a landfill runs out.

In 2012 Viridor applied to build an “Energy Recovery Facility” which would burn up to 275,000 tonnes of waste a year taken from Sutton, Croydon, Merton and Kingston councils, which make up the South West London Waste Partnership.

Sutton Council’s development control committee resolved to grant permission in May last year. Due to the site being MOL, the decision was referred to the Mayor of London’s office, who indicated he was happy for the matter to be dealt with by Sutton Council.

On March 14 planning permission was granted, despite the plan running contrary to London Plan Policy 7.17 and Sutton Core Planning Strategy PMP 9 that seek to protect the proposed Wandle Valley Regional Park and wider MOL.

The council pointed to the fact the land was set aside to be used for waste management as part of the South London Waste Plan and this superseded other policies.

The council also felt there was enough evidence to show development was necessary, even on MOL, such as the need to reduce the amount of waste going to landfill, a lack of suitable alternative sites for the scale of the project and the ability of the incinerator to provide local homes with heat and electric energy.

Sutton Council said planning policy, WP3 of the South London Waste Plan, which safeguarded the land for waste use, was clear, and that the granting of planning permission did not conflict with the 2023 deadline on waste usage.

In making her decision Justice Patterson considered the relevant policies and ruled that if it was accepted the land would be returned to public use after 2023, the use of an incinerator to remove landfill gave Sutton Council justification to grant permission.

She did find that the height of the facility would be harmful to the Wandle Valley Regional Park planned for the area and that actions must be taken to alleviate this.

Viridor has agreed to provide £40,000 a year for 25 years to manage the Beddington Farmlands to improve access for the public, to secure additional land, roughly the size the incinerator would take up, to replace the lost land, alongside £50,000 to pay to create decent access on top of £1.84m already secured through the existing Section 106 legal agreement to manage the restored lands.

Viridor also agree to implement a tree sparrow mitigation strategy after concerns were raised for the local population of the bird.

Justice Patterson concluded, with these additions, the proposal was not contrary to relevant planning policies on public access.

Viridor was also asked to pay for £35,000 of landscaping costs to mitigate against the impact on views of the area.

Concerns raised by Mr Khan and his team about advice given by various planning offices on the proposal, and particularly what might happen after 2023, were rejected by Justice Patterson who stated: “It is abundantly clear from the officer report that full consideration was given." 

In her judgement she added: “Reading the report fairly and as a whole there is no basis for saying that the officer report failed to consider the proposals without taking into account the effect of the expiry of the existing planning permissions in 2023.”

Dealing with claims Sutton Council was wrong in considering the proposal to have “very special circumstances”, Justice Patterson ruled it was up to the decision-maker, in this case Sutton Council, to decide if circumstances were "very special" or not.  

Mr Khan argued the “urgent” need to divert waste from landfill was not borne out by any target, while Sutton Council argued it used the correct legal approach.

Justice Patterson pointed to a directive from the Mayor of London that no municipal waste be sent to landfill by 2025 as a strong incentive and there was “ample evidence” to justify the council’s conclusion.

She also agreed with Sutton Council that an assessment looking at alternative sites found there was nowhere else suitable that met the required criteria, and it was significant the site was already used for waste management.

Perhaps the strongest argument made against Sutton Council was that it was unable to give an honest assessment of the plan because of a contract signed with Viridor in 2012 containing a key requirement for an incinerator at the Beddington site by no later than 2017.

Mr Khan argued that the need to meet the targets set within the contract meant Sutton Council did not assess the planning application with an open mind.

Sutton Council rejected this and said it had acted transparently, with a scrutiny committee set up to ensure the contract had no impact on the decision making of the planning committee.

Justice Patterson pointed out Sutton Council is required to be in charge of waste disposal and act as the planning authority and thus was unable to avoid such a situation.

She also attacked the claims of Mr Khan by stating there was no particular element he could pin point that showed Sutton Council had acted inappropriately.

She added that Mr Khan was relying on an inference that the planning committee would inevitably be biased, and described this argument as “hopeless”.

Finally she dealt with the issue of the environmental impact, and in particular pipelines running from the site to customers for heat at the nearby Felnex site.

The court heard that Sutton Council had considered bringing the plans back to the planning committee when the idea of running piping to the proposed Felnex site was discussed earlier this year, but as the proposal was purely hypothetical this had been considered unnecessary.

Justice Patterson, after reviewing the environmental submissions stated there was no legal error by Sutton Council in not insisting on a masterplan and there was no obligation of the council to consider the impact of the unknown future development on the Felnex site, and thus also dismissed this point.

A spokesman from Sutton Council said: "We are delighted with the decision which confirms that the planning decision making process was followed correctly by Sutton Council in its role as the local planning authority.

"We will ensure that the development of the Energy Recovery Facility by Viridor is undertaken in accordance with the planning permission.

"This includes a legal agreement which provides £2,315,500 to the local area for environmental and transport improvements and to support the provision of green energy."

A spokesperson for the South London Waste Partnership added: “This decision clears the way for us to provide a cleaner, cheaper and more sustainable way of disposing of our waste.

“Beddington landfill site is almost full and is costing more and more money as the government increases landfill tax to encourage local authorities to use more sustainable ways of disposing of waste.

“Not only can we reduce CO2 emissions, but we can create green energy sufficient to power the equivalent of tens of thousands of homes.

“What’s more the majority of the landfill site will be turned into a new green space with wildlife warden so that over 10 years the area will become a haven for nature.

“Altogether, this new approach will save the four council’s an estimated £200m over 25 years which can be better spent on helping people that need our support at a time when council budgets are being cut.”

While obviously disappointed with the decision, Mr Khan resolved to fight on against the plan.

He said: ““I find the judgement wholly wrong but as Abraham Lincoln explained way back in 1864, ‘corporations have been enthroned’ leaving people little chance to challenge what he described as the ‘money power’.

It is very hard for an ordinary person to fight two QCs, including the UK’s leading environmental QC David Elvin, plus a barrister, all instructed by two corporate law firms. It is an unequal playing field. I didn’t apply for legal aid, so all bills, including the capped costs of Sutton Council will have to be met by me. However, it is through the generosity of supporters that these bills are largely paid.

“I feel for all those people who were pinning their hopes on this High Court challenge. I am sincerely sorry this legal process thus far hasn’t worked in our favour.

“Anyone thinking of rushing to buy shares in Pennon Group, Viridor’s parent company, should hold their horses, because despite the huge financial and emotional strain I am considering an appeal and I, and fellow campaigners, will not stop until every last option to stop this lung poisoning incinerator is exhausted.

“The Judge’s decision doesn’t adequately explain why Sutton council were able to ignore a policy which meant development on Beddington Farmlands was only allowed until 2023. Nor does it adequately consider the harm the incinerator will cause to the Wandle Valley Regional Park and London’s Green Network. These harms should have been considered by the council at the planning stage.

“Worryingly, the decision handed down by Mrs Justice Patterson allows building on Metropolitan Open Land which carries the same status as Green Belt and that can have an impact on people in other parts of the UK.”