High Court ruling may fail to stem conflict over hazardous waste incinerator

The prospect of a shortfall in Britain's hazardous waste incineration capacity, averted little more than a year ago when Re-Chem International's incinerator in Wales was saved by a management buy-out, has come to the forefront again following a High Court ruling this month on a prolonged legal controversy between Berridge Incinerators and Nottinghamshire County Council.

The legal status of Berridge's incinerator at Hucknall, near Nottingham, has been in dispute since the first of its four furnaces was built in 1973. Various parts of the incinerator site, including its chimney, have been awarded planning permission, but the incinerator itself has not. Conflict has persisted between the firm and the council whether an express grant of planning permission is required for the furnaces, and the council has been denying the company a disposal licence under the Control of Pollution Act 1974 until that matter was resolved.

This month's judgment by Peter Crawford QC, which will be covered in our legal column next month, appears initially to be wholly favourable to the company. It says that planning permission has never been required for the use of the site for waste disposal because it has been in continuous use for that purpose since 1914, well before the introduction of planning controls.

Moreover, although the ruling rejects the firm's submissions that planning consent was not needed for plant and equipment on the site, it adds that "it is likely that planning permission would have been granted" if the matter had been pursued by the company. And it concludes both that Nottinghamshire County Council "would have difficulty" in refusing a fresh planning application, and that it is "difficult to envisage circumstances in which the planning authority (sic) would find it appropriate to refuse the grant of a disposal licence, subject to proper conditions and control."

The judgment, according to Berride Incinerators, gives "overwhelming support, in principle, to our case". The company has already lodged a planning application and intends shortly to seek a disposal licence. And, according to its Managing Director, Stephen Berridge, it will be adopting a "belt and braces" approach by appealing against aspects of the ruling, including the need for planning permission.

Nottinghamshire County Council, meanwhile, was still considering its legal position at the end of April. It will be under strong pressure to refuse permission by local campaigners who have complained at length about odours from the plant, and claim that public health may be in danger because it 70-foot stack is inadequate to achieve adequate dispersion of emissions.

The effects of the High Court's judgment, according to ENDS' legal correspondent Richard Macrory, are less clear-cut than they seem at first sight. Its comments about the lack of scope available to the council to turn down any planning or licence applications do not, he feels, "appear strictly relevant to the decision in hand, and could not in any way bind the local authority."

Moreover, he believes, last year's decision by a planning inspector to turn down an appeal by the company against the council's refusal of planning permission for a higher chimney (ENDS Report 138, p 7) "will be a relevant consideration when the council considers the new planning application for the incinerator."" The appeal was refused both on aesthetic grounds and because the inspector felt that even a chimney doubled in height would "involve too much of a risk of pollution."

Another potential problem for Berridge is that firms sending waste to the plant may now be in breach of section 3 of the 1974 Act, which makes it an offence to cause or knowingly permit waste to be disposed of at an unlicensed site.

A suspension of the company's operations could leave little spare hazardous waste incineration capacity in Britain. The three merchant incinerators owned by Re-Chem International and Cleanaway are thought to have an aggregate annual capacity of no more than 65,000 tonnes, while an in-house plant operated by Robinson Brothers in West Bromwich can take in up to another 4,000 tonnes.

Industrial recovery is contributing to an upsurge in demand for incineration, which is currently estimated at 60,000 tonnes per year. Another 8,000 tonnes of hazardous waste was imported for incineration last year. Berridge's plant adds 10,000 tonnes to the nation's total capacity, but if it was to be shut down the margin of safety would, at some 1,000 tonnes, be vanishingly small.

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