Agenda item

Motion submitted by Councillor Tierney concerning the proposed Medworth Incinerator.

Councillor Tierney presented his motion regarding the proposed Medworth Incinerator.

Councillor Tierney commented that the proposal has long been on the cards but almost everyone is against it. He commended the local people and groups working to fight against it, which includes every council, every political group on those councils, the MP, and the Mayor. The Council should do everything in its power to fight this to the end and the last option now is a judicial review. However, they are expensive, they need a lot of legal expertise and there has to be a proper reason to have a review, it is not a case of additional argument. Councillor Tierney stated that his hope is that this motion will be agreed so the Council can get independent legal advice as to whether a judicial review is possible; this is something it owes to the people of Fenland, not least Wisbech. This will be a fight to the very end and something that could still be won but all must stand together on this.

Councillor Hoy seconded the motion, and it was opened for debate. Members made comments as follows:

1.    Councillor Patrick said that as a member of the WisWin campaign team, he fully supports this motion. The costs will be considerable, and the technical report will be expected before other councils would consider providing financial support. The head of UKWin has generously offered to prepare this; he has worked with WisWin from the outset, is familiar with the Proposal and has also submitted several technical reports to the Planning Inspectorate as well as being involved in several successful Judicial Reviews. Furthermore, two people who led the successful King’s Lynn campaign with the judicial review have also offered to provide the technical support that FDC needs. An initial review by UKWin has revealed at least 5 potential grounds for a Judicial Review:

• Incorrectly treating the energy that would be exported as low carbon energy.
• Failure to adequately consider the impact of the Secretary of State’s negative climate weighting on the low carbon premise at the heart of the Principle of Development's weighting.
• Errors of fact regarding waste fuel availability and the flawed approach to the non-combustibility of the 19 12 12 waste code that is currently sent to landfill. 
• Reliance on incorrect assumption that the Boston Alternative Energy Facility could only process RDF (Refuse Derived Fuel). 
• Illogical assumption adopted that if waste was landfilled it was not recyclable. 

Councillor Patrick added that WisWin has already received offers of several thousands of pounds from UKWin and local businesses and they will be running a GoFundMe campaign as many people have already offered support. Furthermore, if this motion is agreed and a committee is set up, in the spirit of transparency and to ensure good communication, he would wish to be part of this as the link between the Campaign Team and the Council.

2.    Councillor Boden commented that the decision announced last week was the wrong decision at the wrong location at the wrong time and made for the wrong reason. Unfortunately, there is no right of appeal against the decision so the only way it can be challenged is by means of a judicial review. A judicial reveal is not an appeal; it does not look back at the evidence or technical arguments and it does not look at any evidence not presented to the Inspector and considered by the Secretary of State. It is a judicial process and there are very few grounds upon which it can be successful. The most common grounds are procedural irregularity in coming to the decision or that the decision is perverse as a result of irrationality in legal terms in that no reasonable Secretary of State could come to that decision based on the evidence before them. Councillor Boden said that Virginia Bucknor kindly contacted him and Paul Medd, Chief Executive, advising that UKWin is willing to provide information and assistance but following consultation with officers, he has been told that Council must appoint its own counsel to give the required advice to help them to decide whether to proceed with a judicial review and cannot subcontract to a third party, especially a pressure group. Having said that, the information that UKWin may be able to provide could be invaluable in terms of Council instructing counsel and in the decision whether to proceed. He will therefore ask Virgina Bucknor to provide as a matter of urgency the detailed arguments mentioned by Councillor Patrick in terms of the potential grounds in the opinion of UKWin for which a judicial review can be sought. However, Councillor Boden stated that even if a procedural irregularity is found to have taken place, it may not mean success; there must have been a procedural failure that could have resulted in a different decision that will mean the judicial review is granted. Councillor Boden said he is saying this so people are aware of the reality of the situation; it is not a chance to fight the campaign again, it is not an appeal but rather an examination of the 60-page decision notice that was issued to see to what extent any of those failings mentioned before may have occurred. The whole reason for this motion and for going to independent counsel is that the Council needs specialist knowledge to ensure that it makes the best decision possible. It is important that at the earliest stage any possible grounds for a judicial review are communicated principally to the Monitoring Officer, Carol Pilson, to be referred to counsel. Councillor Boden welcomed the opportunity from UKWin to give such advice and would appreciate any other suggestions but emphasised the urgency of time. His understanding is that the publication of the notice last week triggered the six-week period by which applications for a judicial review must be made. It is a very tight timescale and officers have delegation given to them in this motion. Although success is not guaranteed, the Council will do its utmost based on the information received from experienced legal counsel; the person the Council will approach is a highly respected King’s Counsel, well experienced in large infrastructure projects that have gone to judicial review, and it will depend on what he says before deciding whether to go ahead with a judicial review. Councillor Boden finished by saying that if there is any reasonable possibility of getting this wrong decision changed then the Council owes it to the people of Fenland to take that opportunity.

3.    Councillor Taylor said as Chairman of the Rural Farming Committee he had requested a full toxicology report on the incinerator to protect Wisbech’s fruit and vegetable supplies, which the farming community are very concerned about. To date no such report has ever come forward. He supports the motion as he is fed up with big companies, whether it involves incinerators, reservoirs or housing developments, throwing money around getting deals done before coming through this Council. If this Councils says no, it means no.

4.    Councillor Cutler said she supports the motion; she knows that there is liaison with other councils but asked if this Council has a figure or percentage in mind to contribute towards the costs.

5.    Councillor Sennitt Clough said the incinerator will affect most of Fenland and this is why she supports Councillor Tierney’s motion. The people she represents as ward councillor for Whittlesey Northwest are concerned about the lorry loads of bottom ash from the incinerator being deposited in a pit in Whittlesey. Furthermore, in 2017 an MVV ship from Plymouth carrying 2,333 tonnes of unprocessed incinerator bottom ash exploded in the North Sea. As Councillor Taylor alluded to, this is another example of Fenland being used as a dumping ground for other peoples’ rubbish instead of being regenerated.

6.    Councillor Count said he supports this excellent motion prepared very quickly following the unwelcome decision which has gone against the people of Fenland. One of the comments as to why a judicial review could be successful would be if the decision is found to be irrational. He cannot get his head around the evidence presented, the views of the people here, the views of the people at County and other neighbouring authorities, all concluding the same that somebody can find a rational reason to be right and everybody else wrong; this cannot be rational or right. Councillor Count added that he does not live in Wisbech, so will not see the impact of the mega plant on his doorstep but he does use the roads and they are already in a terrible state. Farm vehicles are struggling to get about and now the incinerator will see wagon after wagon on our roads to deal with what will primarily be Norfolk’s waste. This decision makes no sense; he agrees with Councillor Tierney and the Council must fight this all the way. He has highlighted this with the Chief Executive of the County Council, who are supportive; they provided a lot of evidence to support this Council and he suggested that officers contact them so see if they can find anything to put in front of the judicial review as evidence. This is an irrational decision, and he is 100% behind the motion.

7.    Councillor Mrs French agreed that the roads cannot take the additional volume of traffic, she fully supports this motion and thanked Councillor Tierney for raising it.

8.    Councillor Roy said clearly there is overwhelming support to challenge this decision. Right is always right and wrong is always wrong and this is a decision that will affect generations to come. A monstrosity of this size should not be put in a prime food growing area and he fully supports Councillor Tierney’s motion.

9.    Councillor Wallwork said she is a Wisbech resident and fully supports this motion. She wanted residents to understand that the incinerator decision is something that is not just happening to them, it is happening to all of us, and members do not want this any more than anyone else. She agreed with Councillor Count that this Council must fight this decision and throw everything at it; and if there is any moment that the Council has to throw money and effort at it, the time is now.

10. Councillor Hoy said she was both surprised and devastated by the decision, nobody wanted this. The Council agenda had already been published but thankfully it was possible to add this motion for urgency. The hope of this motion is for officers to explore whether there is a case for a judicial review; time is not on the Council’s side; preliminary enquiries have been made and this not to pre-empt any decision made today but officers are on notice to start work urgently. She urged people to exercise caution over what they put on social media or say publicly so as not to jeopardise anything as MPV lawyers will be looking. In response to Councillor Cutler’s question about funding, potentially this could mean hundreds of thousands of pounds. Fenland District Council will have to bear that cost if nobody else steps up to the plate, but she believes that it is a fight that must be fought. The Council won its case regarding housing asylum seekers at the Rose and Crown and that is a signal to Government that this Council will not roll over. She does not want FDC to bear the whole cost but the Combined Authority and County Council have said they are against it, so they need to financially contribute along with other local authorities. If businesses are also offering financial assistance because of the strength of feeling then why would the Council refuse it. Councillor Hoy said councillors live here too, she lives nearby and does not want to breathe in toxic fumes.

11. Councillor Tierney said he was gutted when he heard the decision, but this debate has helped a lot. He thanked members of the public for turning up to the meeting saying it was great to see so many of them. He stated that the Council could not commit to the amount of money that would be required but would need other parties to give as much as they can, but he pledged to donate £1k of his own money for crowd funding.

The Motion was approved.