Heloise on behalf of Waste Recycling Group Limited
"Application by Covanta Rookery South Limited Energy from waste facility and MRF at Rookery South, Stewartby, Bedfordshire We are instructed by Waste Recycling Group Limited of Ground Floor West, 900 Pavillion Drive, Northampton Business Park, Northampton (WRG). Our client is a leading UK waste management and energy recovery company, operating facilities throughout the UK for the reception, recycling and disposal of waste. In this regard, it owns and operates a number of facilities within the catchment area proposed by Covanta in the current application; Brogborough and Stewartby in Bedfordshire; Calvert and Bletchley in Buckinghamshire; and Buckden in Cambridgeshire. It also owns a dormant mineral site at Elstow in Bedfordshire which it is promoting for waste management use through the Development Plan process. In addition, companies within the Group, WRG Waste Services Limited and Anti-Waste Limited, have interests in land which would be directly affected should the Order be confirmed. More particularly:- • Ownership of the sub soil of the areas marked 22 and 23 on the Land Plan, in relation to which the Applicant is seeking to acquire the right to install and maintain an electricity transmission line and to improve the highway; • Land/land interests which benefit from a restrictive covenant (together the Covenant Land), namely: (a) freehold ownership of land and buildings on the south west side of Wilstad Road, Elstow, Bedford, marked G within the area shaded gold on the Extinguishment of Rights Plan; and (b) a caution against first registration of the freehold of Grog Plant, Stewartby and marked S within the area shaded gold on the Extinguishment of Rights Plan. In each case, the Covenant Land lies outside the development boundary, but benefits from a restrictive covenant which prevents the Covenant Land (and a substantially larger area shaded gold on the Extinguishment of Rights Plan) from being used for any 'Protected Business' (the Restrictive Covenant). The Protected Business is defined so as to include the undertaking of commercial waste management and disposal activities including, without limitation, waste processing, recycling, recovery, composting and other waste minimisation and waste treatment activities. The application, therefore, seeks to extinguish the Restrictive Covenant by way of the CPO sought. With the exception of Annex A of the Needs Assessment which WRG has not had an opportunity to review, it having been made available only yesterday, our client has reviewed the documents submitted and relied upon by Covanta and wishes to object to the Order sought. WRG questions the legitimacy of Covanta's application, whether at this time or indeed at all, both in terms of the planning and the compulsory purchase elements of the Order. 1 PREMATURITY Firstly, there is the issue of prematurity. As acknowledged in Government Guidance, The Planning System, General Principles, at paragraph 17:- “In some circumstances, it may be justifiable to refuse planning permission on the grounds of prematurity where a DPD is being prepared or is under review, but has not yet been adopted where a proposed development is so substantial, or where cumulative effect would be so significant, that granting permission could prejudice the DPD by predetermining decisions about the scale, location or phasing of new development which are being addressed in the policy in the DPD”. Such circumstances arise in this case. The proposal is clearly premature and pre-empts the Local Development Framework process. The waste DPD's emerging within the Bedfordshire and Luton area, are at an early stage of development. The draft Waste Core Strategy Preferred Options Consultation Document identifies the application site as a Preferred Strategic Recovery Site. As a strategic site, and given the facility's capacity of 585,000 tonnes per annum, it is by definition of such significance that the grant of permission would prejudice or predetermine subsequent decisions which should be made within the LDF process as regards type scale and location of new development. This is all the more evident given the preferred approach in the draft WCS for a small number of larger, strategic facilities and the fact that the wide catchment area proposed is inconsistent with the preference in the draft WCS for Rookery to serve "locally arising wastes" only, a restriction which does not apply to Brogborough, another preferred site in the draft WCS. WRG is promoting sites at Calvert and Brogborough for waste related development, as an EfW facility in the case of the former. Both sites are within the relevant catchment area and have been identified by Covanta as suitable alternatives in their supporting documentation. There is a material risk that the prospect of both, or either, of these sites being developed for this use will be adversely affected in the event that consent is granted for Covanta's development. Accordingly, the risk of prejudice being caused to the outcome of the LDF process will be increased, as sites which are currently being selected as preferred options for EfW facilities may no longer be required in the event that the Order is granted. Given the significant catchment area proposed, such a decision would therefore have significant potential to materially predetermine the outcome of several emerging development plans. Any decision ought therefore to be delayed until the LDF process has run its course and it has been adopted or at least further advanced. An early decision on the application site would effectively negate a comprehensive and even handed review of alternative sites that full Strategic Environmental Assessment and Sustainability Appraisal during the development plan process would facilitate. Whilst alternative sites can be considered as part of this application process it is inappropriate and unwieldy to consider each proposal in sufficient detail at this stage to support genuine like for like comparisons. This exercise is better suited to being undertaken as part of the LDF process. 2 ALTERNATIVE SITES Given the scale of Covanta proposal, it is highly likely that the development of an EfW will have, to some degree, a significant adverse effect in planning terms (or disadvantage to the public). The harms arising from the Covanta proposal will fall within the principles identified by the Court in Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1987) S3 P & CR 293. Equally, it is clear that the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages. It is also the case that there could be only a very limited number of permissions granted for such developments within the relevant catchment area. It is therefore appropriate, and necessary, for the IPC to fully consider the availability of alternative sites which are able to meet the same need, with less damaging or similar adverse effects, and within a similar timeframe to Covanta's proposal for an EfW facility. Our clients have not had sufficient time to date to fully assess the adequacy of the Alternative Sites Assessment undertaken by Covanta in support of their application. However, it is notable that Covanta has identified that there are three alternative sites within the relevant catchment area which are 'deliverable' for the development of a EfW of the same scale. Amongst these options are the two sites which are being promoted by our client, namely Brogborough and Calvert. It is not accepted however that Covanta have provided a clear explanation as to why the three alternative sites it identifies are to be discounted and it appears that the rationale for this approach is simply due to the fact that the alternative sites are not owned by Covanta. This is indicated by paragraph 7.22.6 of the Alternative Site Assessment which states "Critically, Site 4 [the Rookery] is available to Covanta to develop now". WRG contends that the proposed EfW facility is equally deliverable on either of their two sites. Given the fact the development requires the acquisition of private rights, and the Order if made as sought would permit such acquisition, it is all the more important to fully consider whether a development of this size is required, and if so, whether the proposed location is the best site for this development, when compared to other alternatives which are available. Accordingly, if the proposals are not to be judged premature it would be necessary for a more detailed analysis of the three alternative sites to be carried out prior to the grant of the Order, to ensure that the respective environmental and sustainability aspects of each competing site are properly and fully assessed on a comparative basis. Such an analysis should, in this case, be carried out as part of the requirement to undertake a Sustainability Assessment and Strategic Environmental Appraisal of alternative sites. We reserve the right to undertake and submit evidence in respect of the comparative advantages of each competing site, and their ability to meet the identified need for such development within the same, or similar, time frames. In particular our client contends that the proposal compares unfavourably to alternatives because of its proposed scale judged against the overall need for such facilities, location, environmental impacts, accessibility, including the safety risk associated with the increase in use of the level crossing which does not appear to have been properly assessed as yet. 3 CPO The powers of CPO relied upon by Covanta in the Planning Act 2008 are subject to the decision-maker being satisfied that: (a) the land is required for the development to which the consent relates, or is required to facilitate or is incidental to the development; and (b) there is a compelling case in the public interest for the compulsory acquisition [Section 122]. In this instance, the compulsory acquisition of land, interests in or new rights over land is being sought over the whole of the application site, and indeed beyond in the case of the benefit of the Restrictive Covenant, affecting a significant number of people over a substantial area. Leaving aside the question of whether there is a need for a development of this scale, the fact that there are alternative sites to the Rookery site which could be brought forward for waste management purposes and which would avoid the need to acquire the proposed third party land or interests in land clearly brings into question whether the first criterion is met. Whilst Covanta did not approach the issue on the basis of identifying the best site or that Rookery should be the only site available, the fact that other sites are available is clearly pertinent to the issue. As Circular 06/2004 makes clear one of the relevant matters which one can expect the Secretary of State to consider in deciding whether to recommend confirmation of a CPO is "whether the purpose for which the Acquiring Authority is proposing to acquire the land could be achieved by any other means. This may include considering the appropriateness of any alternative proposals put forward by the owners of the land, or any other persons, for its re-use. It may also involve examining the suitability of any alternative locations for the purpose for which the land is being acquired". As highlighted earlier in this letter, a more detailed analysis of alternative sites is needed to ensure that the respective environmental and sustainability aspects of each competing site are properly and fully assessed. Until this comparative analysis is undertaken it cannot be asserted that the land is "required". Nor is the second criterion met. Covanta's Statement of Reasons does not establish a ‘compelling case in the public interest’ for making the CPO, as required by Section 122 of the PA 2008. This is a more stringent test than the one that applies when considering whether to grant planning permission, justifiably so, given the number of interests that would be affected in this instance if the CPO were confirmed. It is difficult to see how such a large scheme, proposed on unallocated Greenfield land without any obvious locational benefits and, indeed, having a number of locational disbenefits in terms of environmental impact, can be considered to be in the public interest when there are alternative sites which offer a number of advantages over the application site, including significantly, the fact compulsory acquisition would not be required. The ‘public interest’ test cannot 'reasonably' be made out in these circumstances. The resourcefulness and tenacity of the applicant is no substitute for a compelling case in the public interest. As such, if the Order were to be confirmed, a breach would occur of the human rights and fundamental freedoms which Article 1 of the First Protocol of the Human Rights Act 1998 seeks to protect; the extinguishment of our clients' Restrictive Covenant and the commercial implications that are likely to ensue would not be proportionate to the interest being pursued. In this regard, the Restrictive Covenant that WRG benefits from and which the Order proposes to extinguish is necessary to protect WRG's legitimate business interests which were negotiated in good faith in order to protect legitimate commercial concerns. The Restrictive Covenant was imposed a number of years ago on London Brick Property Limited on the disposal of part of its property portfolio. London Brick was selling off its waste management portfolio and the purchaser wanted to ensure that London Brick did not have the ability to undertake any commercial waste management and disposal activities on the land it was retaining. The development of the dominant tenement for "Protected Business" purposes was always in prospect and the restriction on the servient tenement was intended to prevent land use competition. WRG later purchased part of that waste management portfolio (i.e. the Covenant Land) in the comfort of knowing that its interests would be protected by the Restrictive Covenant. The restriction, particularly the ban on waste management related uses, remains as important to WRG in terms of protecting its land use interests in the waste management industry as it did to those who originally entered into the covenant. In particular the Covenant Land includes WRG's Elstow site, where planning permission exists for mineral extraction, with restoration by backfill of waste and other proposals are intended. The use of CPO powers would be unfair and disproportionate in the circumstances of the case. Yours faithfully WALKER MORRIS"