The Court of Session has rejected a judicial review challenge to South Lanarkshire’s heroic decision to approve the controversial Dovesdale Farm energy from waste plant (see blogs here and here). The application had received over 20,000 objections from the public, more than the entire population of neighbouring Larkhall.
The challenge hinged on three allegations: first, that the committee had been misled by a report that indicated the development “did not fully accord” with the development plan; second, that it was irrational to grant an application that was significantly contrary to the development plan, without balancing material considerations; and third, that the planning authority had an interest in the development since it was likely to use it for waste disposal – and therefore it should have notified the significant development plan departure to Scottish Ministers under the Scottish Government’s notification rules.
Not surprisingly, the Court rejected the third allegation. Dovesdale is a speculative application. It is possible it will be used by the successful bidder in South Lanarkshire’s ongoing waste management tender – but that doesn’t add up to an interest on the part of the planning authority.
As regards the first, the report to the planning committee had to be read as a whole, and in fact it did acknowledge that the application represented a departure from the development plan, but set out a number of points the officer considered balancing factors. The committee was not misled.
And as for the second issue, the alleged irrationality of the decision, public authorities have to be very irrational indeed to meet the legal test for irrationality. Many people might have regarded the grant of permission as wrong, but that doesn’t make it unlawful.
This is all well-established law, and I suspect the person who brought the challenge was well warned by his legal counsel that the chance of success was low. So why try? People tend to be motivated to take a judicial review by how much they disapprove of the planning decision, rather than the inherent strength of their case. And even where the legal case is weak, the delay caused to the project might mean some other obstacle to it turns up. This is the third court challenge to a Scottish EfW permission in less than two years.
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Lanarkshire councilors decision will come back to haunt them at the upcoming elections.
“People tend to be motivated to take a judicial review by how much they disapprove of the planning decision, rather than the inherent strength of their case.”
However much that may be true, people in this case were motivated and bright enough to work out that when something is inherently wrong, they should show their displeasure in some form as the system does not favour the layman. People presume, perhaps wrongly that the law will protect their interests. The gaping holes in the material considerations and the “interpretation” of the local plan showed that the site and application was made to fit the rules.
If you look at legislation and the decisions that are made in regard to eFW plants, on the whole the council could have voted against it and listened to people of South Lanarkshire. They may regret that decision in the long run.
Despite the councils victory in the courts the campaign goes on. Mr Seaton may think such action was misguided or destined to lose and that may be so but it doesn’t mean the people (24,000) were wrong in challenging the councils decision to threaten the local economy, the environment and health and wellbeing of our children against the deadly toxins released from such incinerators. Such decisions led to a political backlash at the last parliamentary elections and may do so again at the forthcoming local elections. Our conscience is clear but I suspect those who influenced the approval of this application against the wishes of the people is less so. The law is there to be challenged or changed should there be the will to do so and unless councils such as South Lanarkshire abide by their own policies and national guidance we will continue to remind them of who elected them.