Court of Session quashes waste incinerator permission "with some reluctance", says expert

Out-Law News | 01 Sep 2014 | 12:39 pm | 2 min. read

Scottish judges have ruled that a public inquiry over the construction of a proposed £43 million waste incinerator in Invergordon must be reopened following a number of challenges from Highland Council and local landowner Mohamed Al Fayed.

However, the Inner House of the Court of Session has resisted calls from the objectors to reopen the entire case after finding that to do so would be "unnecessary". Instead, the new inquiry will focus on a condition with the potential to allow the plant to accept waste from outside the Highland Council area for incineration.

Litigation expert Craig Connal QC said that the judgment was a good example of "how uncritical reading of very broad reportage can mislead".

"You might think this was a real victory for objectors; but not only were a long list of objections by the landowner thrown out, some were even described as 'captious' – trivial or carping," he said.

"The case shows that a real conundrum can face a court where the vast majority of attacks are rejected and no real basis for suggesting the substantive decision was flawed succeeds, but a flaw is found in the basis for one condition. In this case, the court - clearly reluctantly - felt that it had to quash the entire decision, albeit it tried to limit the damage by ruling that it could return to public inquiry only on a limited point," he said.

Combined Heat and Power, the proposed developer of the plant, first applied for planning permission for the project in 2008. After permission was refused by the local authority, the decision was referred to the Scottish government's reporter who allowed the appeal subject to certain specified conditions after an initial public inquiry. The developer had proposed that the plant process up to 100,000 tonnes of waste a year from the Highland Council area only, the treatment of which would generate steam to heat nearby houses and generate electricity.

The Court of Session was asked to consider appeals against the reporter's decision by the planning authority and Ross Estates, owned by former Harrods tycoon Mohamed Al Fayed. These appeals were based on a condition allowing the plant to treat waste from outside of the Highland area; concerns relating to access at the Tomich Junction; and what Scotland's top judge, Lord President Gill described as "a welter of criticisms ... all of which are misconceived". Highland Council only raised the first two objections.

"The Inquiry Reporters are appointed for their knowledge and experience of planning law and practice," he said. "In an appeal of this kind we are entitled to credit the reporter with an understanding of the policy documents and the significance of the evidence in relation to them. It is for the reporter to decide what are the determining issues. It is not his duty to provide detailed and reasoned answers to every objection, however far-fetched."

Of the two grounds of appeal that had merit to them, only the appeal in relation to the condition that would allow the plant to treat waste from outside the Highland Council area was "well founded", he said.

"[This condition] is invalid for the fundamental reason that it enlarges the permission beyond that which was applied for and was considered at the inquiry," he said. "It is a matter of agreement that all parties participated in the inquiry on the understanding that the application sought permission for the treatment of Highland waste only. That was reinforced by the statement for the developer that it would accept a condition restricting the plant to waste arising from the Highland area."

"It is plain, in my view, that [the objectors] have been unfairly disadvantaged. They have not had the opportunity fully to consider the planning implications of the enlarged consent that the developer did not seek, still less to lead evidence or make submissions on the point," he said.