The Judicial Review Process

Despite record numbers of considered and relevant submissions against the Environmental Permit within two public consultations – the Environment Agency issued a permit for the massive Covanta Incinerator in the heart of the Forest of Marston Vale on 26th January 2018.

The Judicial Review process against the Environment Agency decision was the only option open to us. The process consists of:

• Lodging and Serving Stage – Completed
• Acknowledgement of Service/Permission Stage – cut short due to accelerated timings
• Substantive Hearing Stage – Preparation and Attendance in Court – Completed

Progress so far in Brief

In order to begin proceedings –  it was necessary to appoint a firm of Solicitors.  With guidance from ELF – BACI appointed one the best-known Environmental Law firm of Solicitors in the country.

– Pre-Action Protocol Letter sent (incl supplementary letter)

– Reply from the EA received

– Responses from the EA analysed by the legal team

– Preparation of papers and lodging with the Courts – 25/04/18

– Serving of claim form and prepared bundle including grounds and expert/witness statements to The Environment Agency (Defendants) and Covanta (Interested Party) 16/05/18

– Acknowledgement of Service stage – AoS replies received from EA and Covanta but due to accelerated timings the bundles were moved forward to the paper permission stage

– Permission Granted by Judge to move forward to a Full 2 Day Substantive Hearing (received 15/06/18)

– Court Dates for 2 Day Substantive Hearing announced as 10th and 11th October

– Reply by BACI Barrister to opponents Detailed Grounds of Resistance and 2nd Expert Witness Statement

– Skeleton Argument and Trial Bundles prepared by Legal Team and sent to Courts incl 3rd Expert Witness Statement

– Attendance at the 2 Day Court Hearing at Royal Courts of Justice 10th – 11th October

– Judgement Deferred – Decision Pending

– Judgement received on 06/11/18 – BACI’s Claim to Quash the Permit was dismissed – BACI has 21 days in which to lodge an Appeal with the Court of Appeals

Progress So Far – Detail

The BACI committee has spent the time since the issue of the permit revisiting evidence, talking with experts and putting together relevant arguments.  We believe that the Environment Agency has made various errors in its judgement in this case.

Under advisement from the Environmental Law Foundation (ELF) the BACI committee started to compile evidence for the 3 headings under which Judicial Review cases are brought:

• Illegality
• Serious procedural defects in the decision making
• Irrationality

ELF managed to secure us the services of a Barrister with an Environment and Planning background to appraise the quality of the full evidence document of 30 pages we had put together.

Although residents highlighted many issues with the Environment Agency’s approach to the permitting process for Rookery Pit – our Barrister has identified several areas which are suitable for the Judicial Review Process through consultation with experts and BACI.

The areas highlighted by the Barrister are:

• The EA failed to challenge the incorrect chemistry evidence submitted by Covanta regarding the effect of water on heavy metal residues. Dissolved heavy metals would not be captured in the proposed ‘interceptors’ and would ultimately drain into Stewartby Lake
• The EA and Covanta failed to –  and made no attempt to – gain meteorological data representative of conditions in Marston Vale. The EA accepted evidence from Covanta based on modelling that is not capable of taking into account Temperature Inversion events that would bring air-borne pollutants down to ground-level
• The EA accepted Covanta’s calculations of the Nitrogen Oxides (NOx) emissions based on out-of-date EA guidance regarding Nitrogen Oxides (NOx) to Nitrogen Dioxide (NO2) conversion rates
• The EA failed to make Covanta take into account as human receptors the footpaths used by many thousands of visitors per year in the Millennium Country Park/Forest Centre – immediately adjacent to the Rookery site
• In response to a Freedom of Information request – the EA confirmed that they had failed to request that Covanta carry out a Cost-Benefit analysis ignoring the EA’s own up to date guidance.
• A supplementary letter was also sent regarding the accumulative effect of the emissions from the Millbrook Power Plant – also to be located at Rookery South – in addition to the emissions from the Covanta Incinerator.

We are aware that these areas may not correspond to the main issues that residents may find of most concern – but they have been highlighted by the Barrister as the areas that are suitable to issue proceedings under Judicial Review.

Under this process – we had 3 months after the date of issue of the Permit to start legal proceedings.

The first initial stage of the process was a Pre-Action Protocol Letter outlining our concerns to the Environment Agency.  This letter was prepared and subsequently sent to the Environment Agency on 3rd April 2018.

The reply from the Environment Agency was analysed by the legal team and it was determined that there was still a case for part of the grounds in the PAP letter moving forward.

Our Barrister drew up some detailed grounds and obtained expert and witness statements – which were put together by our Solicitor in the Evidence Bundle.

The Claim Form and Evidence Bundle was lodged with the Administrative Court at the High Court of Justice – Queens Bench Division.

After sealing the evidence bundle The Administrative Court sent the claim form back to our Solicitor with instructions to serve the papers to the Defendant (The Environment Agency) and the Interested Party (Covanta).

The Claim form and Evidence Bundle was served to the opponents on 16th May.

Covanta petitioned the Court to have the claim moved from the Administrative Court to the Planning Courts and given a ‘significant’ listing.

The copies of the Acknowledgement of Service replies from the EA and Covanta were received on 11th and 12th June.  Included in Covanta’s AoS was a request to the Court for an accelerated timeframe for the next stages of the case.

Permission was granted by the Judge for the Claim to be heard at a 2 day Substantive Hearing on the papers – without the need for our Barrister to attend a permission hearing (rec 15/06/18)  The Judge also agreed to the Protective Costs Order we had applied for under the Aarhus Convention.  The Judge declined Covanta’s suggestions regarding the timings.

Our Court Dates were announced as 10th and 11th October.  The Hearing will take place at the Royal Courts of Justice located on The Stand London.

Both opponents – the EA and Covanta – sent Detailed Grounds of Resistance – which were evaluated and in consultation with BACI and an expert witness – a reply drawn up and sent by our legal team to the Courts together with a 2nd Expert Witness Statement.

The last documentation of the Skeleton Argument, Trial Bundles and 3rd Expert Witness Statement have now all been sent to the Courts in preparation for the actual Court Hearing.

We attended the 2 Day Court Hearing at the Royal Courts of Justice with the legal team.  The outcome was a deferred judgement as more time was needed due to the technical nature of the claim.

Please Click Here for more Information regarding the Court Hearing itself including:

• Full write up of the events of the 2 Days
• Photo Gallery
• Video with extra information regarding the basis of the claim and showing the current progress in the pit

Fundraising Overview

Monies pledged will go into the separate BACI Bank Account which is controlled by the BACI Treasurer and a second signatory who are members of the BACI committee.

If there are any funds left over at any point  – this will be used either in the wider campaign (if this is still existing) for example air pollution monitoring equipment for the area – or another local project.