A HIGH court judge has retired to consider a verdict in the judicial review of Sutton Council's approval of plans for an incinerator on the border of Croydon and Sutton.
Judge Justice Patterson gave no indication of what her decision will be as the two-day hearing drew to a close at the Royal Courts of Justice today (Friday).
The judge said she will consider written submissions on a court of appeal ruling in a relevant case before issuing her judgment.
The court earlier heard from barristers representing Sutton, which granted planning permission in March, and developers Viridor, which has a £1 billion contract to build and operate an incinerator on Beddington Farmlands.
Yesterday Justine Thornton, representing the Stop the Incinerator Campaign, said planning permission had been "unlawful" because the council had "ignored" that the land is due to become part of Wandle Valley Regional Park in 2023.
Saira Kabir Sheikh QC, representing Sutton, said the issue had been carefully assessed and the planning authority had given sufficient consideration to the fact the site is on Metropolitan Open Land – similar to the green belt – and thus "very special circumstances" were needed to permit such a development.
Ms Sheikh said those circumstances were, in part, the urgent need to reduce the amount of waste sent to landfill by the four boroughs behind the South London Waste Partnership (SLWP) – Croydon, Sutton, Kingston and Merton – provided. Sutton maintains that losing the judicial review would have a significant financial impact on the boroughs.
"It's undeniable there is an imperative to divert waste away from landfill," said Ms Sheikh. "It is simply hopeless to suggest otherwise. It is policy at all levels. It is unsustainable to continue to send waste to landfill.
"I don't believe this is a contentious point. It is entirely appropriate for the council to be giving [this issue] significant weight."
Even if it was not, she said, as the planning authority Sutton was permitted by law to decide for itself whether the benefits "outweigh the harm to the green belt".
Ms Sheikh pointed out that Beddington Farmland had been used for waste services since 1995. "It is the defining characteristic of the land," she added. If it is handed over to the park it will become a nature reserve.
Justice Patterson asked about the status of Wandle Valley Regional Park and neither side was able to provide a clear answer.
Ms Sheikh said it was unfunded and, at this stage, only an "aspiration", though admitted the creation of the park remained a "key strategic objective" for the council.
Ms Thornton said Beddington Farmlands was due to be the "centrepiece" of Wandle Valley and pointed out that the park had received £2 million from the lottery and a further £390,000 from Mayor of London's Big Green Fund.
Ms Thornton had, on Thursday, sought to convince the court that Sutton had been "fettered" by Viridor's contractual obligations to build the incinerator, which would burn 275,000 tonnes of household waste each year, on Beddington Farmlands by 2017. Her case was, essentially, that this restrictive timetable had corralled planners into approving the plan despite the issues with the site.
Ms Sheikh replied: "There is no evidence at all which indicates it has acted in an inappropriate way. It's absolutely clear that [by entering into the 2017 agreement] it was in no way fettering itself as a planning authority.
"It's wrong to be making assertions of this type. Plainly it's not the case that there is any smoking gun [proving] the council hasn't followed the proper procedure or its own advice.
"If anything it has been extremely careful to make sure there's a separation [between the council and Viridor]."
Ms Sheikh said the planning committee was not in any way involved in the contract process, but added: "There's nothing wrong with them having regard to the delivery aspiration."
David Elvin QC, representing Viridor, said that while the site of the incinerator would not be part of the regional park, the section 106 agreement signed between the council and Viridor meant that other aspects of Wandle Valley would be "delivered sooner than otherwise would be the case".
Ms Thornton had earlier accused the council and Viridor of ignoring other alternative sites, naming three owned by the authorities involved in the SLWP, because they did not meet the 2017 deadline, a timeframe she described as artificial.
Mr Elvin said there was nothing to suggest the location had been driven by this timescale.
"They weren't ruled out on time grounds they were ruled out because they were too small," he explained.
The defence to the legal challenge has relied on claims the site was "safeguarded" for waste use until the end of the South London Waste Plan in 2021.
Mr Elvin said what happens to the land after that date would be addressed in another plan when the time came. Ms Thornton gave that claim short shrift.
"When Sutton got the application it should have said to Viridor they could do what they liked to the site until 2023 but, after that, it's off limits," she said.
"If planning permission goes ahead it doesn't matter a jot what the next plan says; the incinerator isn't going to be pulled down and the land isn't going to be returned to Wandle Valley Regional Park."
On Thursday, Ms Thornton questioned the "urgent" need for an incinerator and pointed to DEFRA's decision, in 2008, to withdraw £225 million of PFI credits from the project because of the "reasonable assumption it would no longer be needed" to meet the 2020 landfill diversion targets set by the European Union.
Mr Elvin said the point was a "red herring" because the decision had been made during the spending review when, Ms Sheikh added, "lots of worthy projects lost their funding".
The fourth ground on which the campaigners, led by green activist Shasha Khan, challenged planning permission was the claim that Sutton had failed to assess the environmental impact of a pipeline running from the site.
The pipes themselves are a key part of the incinerator in that they will be used to transfer heat created by burning rubbish to nearby properties. The specific objection is with a pipeline that will run to a nearby sustainable housing development.
Ms Sheikh said the council had "expressly considered" the environmental consequences of the pipeline. Mr Elvin added that, in any case, any concerns would be assessed whenever a planning application for the pipes was submitted.
Interestingly, however, he appeared to suggest it was "not certain" they would be installed, leading campaigners to question whether the CHP (combined heat and power) aspect of the plan, relied upon by Viridor as one of the "very special circumstances" justifying the development on protected land, has been, or will be, dropped.
