25 Apr Letter To Councillors
RE: ESS/36/17/BTE & ESS/37/17/BTE – Rivenhall IWMF
Listed for Planning Committee on Friday 26 April 2019
I write on behalf of Gent Fairhead & Company Ltd, the Applicant in the current planning application.
The Applicant, in light of the Principal Planning Officer’s Recommendation to Refuse as dated the 17/04/2019, respectfully submits that the determination of this application should in the first instance be deferred until such time as it can be made in a fair and reasonable manner with regard to all relevant information.
In the first instance, the Applicant believes that it would not be appropriate to make a decision now as there are a number of legal and quasi legal matters that are contested and disputed pertaining to the Planning Officer’s assessment of this planning application and indeed to do so would be contrary to the requirements of due process which underpin the planning system.
An application was made to the Environment Agency to vary the existing Environmental Permit to include advanced emission control technologies to reduce emissions from the stack therefore allowing a stack of 35m which in turn aligns with the extant planning permission ESS/34/15/BTE.
More fundamentally, to make a determination at this juncture where such a parallel application is before the Environment Agency, would be premature as should this application be determined as envisaged by the Environment Agency, the contested matters at play would no longer require determination thus, rendering the need for adjudication on these matters defunct and allowing the Applicant to withdraw the planning application. These contested matters pertain to the following:
Failure to comply with the Environmental Impact Assessment Regulations (EIAR)
As you may be aware, the Applicant has partnered with Indaver, an international waste management company who will act as the funder and operator of the CHP component of the Integrated Waste Management Facility (Rivenhall IWMF).
Indaver is committed to public engagement in respect of all proposed and operating facilities. To this end and in the context of the present application, the parties held a number of public participation sessions in recent months in a number of locations surrounding the proposed Rivenhall IWMF. Requests for additional studies to be undertaken were made at these sessions and these studies are now underway and will be available during the month of May.
It is therefore submitted that to make a determination in the absence of these concluded reports would be in breach of the Environmental Impact Assessment Regulations and contrary to the requirements of the Aarhus Convention.
Unreasonable and Improper Recommendation based on Need
Further, your Officers have recommended refusal based on, amongst other things, need.
The Rivenhall site is an allocated site and its need identified in the Waste Local Plan.
We believe that your Officers are incorrect to raise need as an issue, indeed the Plan expressly provides that need should not be re-opened in respect of allocated sites. Both of these, we understand, raise legal issues of importance.
The first issue demonstrates Council Officers mis-applying relevant policies from the Waste Local Plan and may give rise to issues of fairness and consistency as to how applications are judged against the Waste Local Plan. The Applicant has asked for more time to properly consider, and substantively respond to, the issues raised in the BPP Consulting Report of late February 2019. This is now particularly crucial since the recent publication of the Planning Officer’s report from which it is now revealed how the overall appraisal clearly relies upon this latest, and in the Applicant’s view flawed, reassessment of need.
The second issue gives credence to an argument that the Council’s Waste Local Plan is out-of-date and, by implication, may have wide-reaching consequences for pending and future waste and mineral applications in the County. We assume that, by determining this application, that Members are not seeking to determine that the Waste Local Plan is out-of-date or, in the alternative, its policies should – or can – be disregarded.
Proper Determination of the Fall-back Position
Similarly, should the present application be deferred until the conclusion of the Environment Agency process, the Planning Officer would at that point be able to correctly determine the weight that should be afforded to this point as laid down by the Court of Appeal in Mansell v Turnbridge and Malling BC. To do so when this process is yet to be concluded raises considerable doubt as to whether this matter has been determined correctly when all relevant factual matters have not been properly and fully considered.
We also note the existence of Local Elections and have grave concerns that to determine the applications now is inappropriate in the context where a number of candidates have actively opposed the Rivenhall IWMF.
Lastly, as I am confident you will appreciate, the Rivenhall site will amount to a £400 million investment into Essex. The development of such strategic waste treatment infrastructure will not only provide a local waste solution and divert waste from landfill, but will also generate local employment.
In the round, therefore, there are substantial reasons not to make a decision now but, instead, to wait to properly consider the concluded reports following public consultation and to wait for the Environment Agency decision at which point this application for a higher stack may be withdrawn.
I, on behalf of the Applicant, therefore invite you to defer making a decision.