A JUDICIAL review of Sutton Council's decision to approve plans for an incinerator in Beddington Lane began today at the high court.
Justine Thornton, the barrister representing the Stop the Incinerator campaign, told judge Justice Patterson the decision to grant planning permission for the £1 billion deal was being challenged on four grounds.
The decision was "unlawful", she said, because Sutton "ignored" planning guidance which said Beddington Farmlands, where the incinerator is due to be built, is supposed to become part of the fledgling Wandle Valley Regional Park from 2023.
The court also heard claims that Sutton Council had failed to consider the harm the 'energy recovery facility' would do to the site which is on Metropolitan Open Land granting it similar protections to the green belt.
She claimed the deficiencies of the plan, which would see 275,000 tonnes of waste burned a year, were washed over because the contract with Viridor obliged the developers to build the incinerator by 2017.
It was also claimed that planners had failed to assess the environmental impact of a pipeline from the boundary of the site.
Sutton Council maintains it followed proper planning procedures when it formally granted consent in March this year.
Around two dozen campaigners were present at the Royal Courts of Justice for the opening of the two-day hearing today (Thursday), including Shasha Khan, the activist leading the legal challenge.
The majority of the day's proceedings were given over to Ms Thornton, the wife of Labour leader Ed Miliband, who laid out her case to Justice Patterson.
The incinerator is the centrepiece of the South London Waste Partnership, an agreement between Croydon, Sutton, Merton and Kingston councils. The authorities say it would significantly reduce the amount of household waste sent to costly landfill.
While there has been some form of waste management usage on Beddington Farmlands, on the border of Croydon and Sutton, since 1995
A key part of the campaigners' case is that the London Plan, the South London Waste Plan and Sutton's own core strategy all acknowledge that site is due to become part of the regional park by 2023.
Sutton argues it was able to grant planning permission because the site is temporarily "safeguarded" for waste usage.
Ms Thornton sought to convince the court that Sutton was initially opposed to the Beddington Farmlands plan.
It produced an email sent by planning manager Duncan Clarke in which he said there were three other alternative sites which were more appropriate because they had been "safeguarded without a time limit".
Any of these locations - Villiers Road, in Kingston, Factory Lane, in Croydon, and Garth Road, in Merton - would have been more suitable than Beddington Farmlands, the court was told.
Justice Patterson was also read an email written by Jim Redwood, a consultant working for Sutton, to the GLA in May 2012 which described Viridor's plan as "visually harmful", that there were "other deliverable alternatives" and the incinerator could "adversely impact on Beddington, and possibly other communities".
Questions were also being asked about the 2023 deadline by the Mayor of London's office.
The court heard the Mayor requested it be "deleted" off a list of potential sites included in the South London Waste Plan because the London Plan, drawn up in 2011, had Beddington Farm earmarked for inclusion in the regional park.
The plan was subsequently amended to say the "inclusion of the site was supported until 2023, "after which the land will be required to be incorporated into the Wandle Valley Regional Park".
Viridor were clearly concerned about the implications of the footnote, said Ms Thornton, and put Sutton "under pressure" to change it to include the potential to extend the current waste usage of the site "beyond current time limits".
"This wording was not accepted by the four London boroughs including Sutton or by the examining inspector," said Ms Thornton.
"Viridor's attempt to amend the plan had not worked and it was left in no doubt about the position of Sutton and the other London boroughs at this juncture."
The councils, she added, were "categorical" that the need to vacate Beddington Farmlands to make way for the park was "well-known".
What followed, however, was a "fundamental reversal" of Sutton's position between May 2012 and April 2013, when council officers recommended the plan for an incinerator on the site should be improved.
The "significant factor", she explained, was that the contract between Viridor and the South London Waste Partnership had been signed in November 2012.
While there was "nothing unlawful" about signing such an agreement, she said, the inclusion of a requirement to build an incinerator on Beddington Farmlands by 2017 was what led to Sutton's "change of attitude" toward the plan.
It meant many potential sites were dismissed because they could not meet the deadline, imposed, the councils said, because of the rising cost of landfill.
Ms Thornton said: "Viridor's assertion that there is an 'urgent' need to divert waste from landfill is not borne out by any waste targets or by the local plan. Nor is this the view of central government.
"The reality of this case is that the decision making was driven by contractual rather than planning considerations."
She highlighted an email, obtained under the Freedom of Information Act, sent by a Sutton council officer in 2012 which said it "cannot be right" that the authority should accept the Beddington Farmlands plan was the only option "simply because Viridor has decided to bring it forward".
He added: "[Sutton Council] believes the show-stopping urgency is the contractual commitment Viridor has entered into, which is not per se a planning consideration".
Saira Kabir Sheikh QC, representing Sutton, said the Mayor's amendment to the South London Waste Plan did not equate to policy and that the opinion of officers did not represent the position of the council in any way.
"It's wrong to say the council had any stiff resistance [to the incinerator]. This was officers considering the application. They were debating and discussing their own views with the GLA and Viridor. It's not a correct spin to put on it to say they suddenly changed their mind. They [the council officers] weren't the decision makers anyway," she said.
Ms Sheikh said Wandle Valley Regional Park was currently just an "aspiration". Ms Thornton argued parts of it were already in place.
The campaigner's barrister said that if the court choses to uphold the legal challenge then it must "quash" the planning consent.
Her skeleton argument acknowledged that such an outcome would lead Viridor and the council's involved in the partnership to suffer "substantial financial loss".
Sutton's response to the challenge is due to continue tomorrow (Friday). The case will then conclude, with the judge's final decision expected in several weeks.
