Keighley EfW incinerator permission challenge

We were instructed by Simon Shimbles, a representative of Aire Valley Against Incineration (‘AVAI’) following the grant of planning permission for two Energy from Waste (‘EfW’) facilities. The scheme was controversial,  because of the recognised harm of the emission stacks to the setting of East Riddlesden Hall, a Grade I National Trust property, and the nitrogen deposition impacts on protected SAC habitats.

The Judicial Review was brought on grounds relating to two separate areas, the assessment of harm to a significant heritage asset, and the legality of the Council’s Appropriate Assessment of the harms to the SAC.

For listed properties, the Planning (Listed Buildings and Conservation Areas) Act 1990 s.66(1) requires that decision makers need to give special regard to heritage assets, which is echoed in the National Planning Policy Framework (NPPF). In undertaking this exercise, one is required to assess the ‘significance’ of the asset and the level of harm, which can be ‘substantial’, ‘less than substantial’ or ‘none’. The level of harm will result in different policy interpretation of whether the proposal is acceptable.

In the impugned decision, the officer, although recognising that East Riddlesden Hall was a Grade I listed property, found that the harm to the significance of the asset was less than substantial under the framework. The public benefits of the EfW were also found to be less substantial but outweighed the harm.

Mr Shimbles put forward a novel approach that in order to give great weight to the conservation of a heritage asset, the local authority should have used a “spectrum of harm” to determine where the asset lay, and not simply assessed the harm as less than substantial.

This approach was unfortunately not accepted by the Court, the Judge finding that legislation and policy only supported a binary division of harm. The Court considered that the introduction of a spectrum concept by subdividing the categories would result in over refinement. Further, the fact that the public benefits of the proposals were less than substantial did not mean that they were incapable of outweighing the harm to the asset’s setting, even giving the harm great weight in the balancing exercise. Despite the outcome in the case the practice among heritage advisors and council officers now is to place heritage harm on a spectrum often referring to the harm being at the “lower end” or the “upper end” of less than substantial.

In relation to the Council’s approach to appropriate assessment (‘AA’), the claimant highlighted that a previous report as part of the Council’s waste management development plan in 2012, using hypothetical EfW parameters to calculate emission rates, indicated there would be a likely adverse impact on two areas within the nearby European protected SAC sites. The regulator, Natural England, agreed with these concerns.

In contrast, the applicant’s report for the emissions of the sites in 2015, these deposition rates were not replicated, and Natural England did not object on this basis. The Claimant argued that the Council had erred in not ordering a further appropriate assessment given the adverse findings to the 2012 report. The Court found that the Council, despite the concerns raised in relation to the 2012 hypothetical plant, were entitled to find that there was no scientific doubt on the issue of adverse environmental impact.

The claimant’s application for permission to appeal on heritage grounds was refused.