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High Court begins hearing challenge to the Rookery South (Resource Recovery Facility) Order 2011

On 5th February the High Court (Mitting J.) started to hear argument in the judicial review challenge brought by FCC Environment (UK) Ltd  against the Rookery South (Resource Recovery Facility) Order 2011 (2013/680) (“the Order”) which approves an application for a development consent order under the Planning Act 2008 (“the 2008 Act”) made by the Interested Party (“Covanta”) to develop an electricity generating station with an average gross output of approximately 65 MWe, together with a materials recovery facility and other associated development.

The order was made by the Infrastructure Planning Commission in 2011, but was required to be laid before Parliament pursuant to s. 128 of the 2008 Act. This required special parliamentary procedures (“SPP”) prior to the coming into force of the draft order. These procedures are in turn governed by the Statutory Orders (Special Procedure) Act 1945 (“the Special Procedure Act”). Under the Special Procedure Act, and by virtue of petitions being presented against the Order, the Order was referred to a Parliamentary Committee for examination. That examination determined that the Order should be reported without amendment, but as a consequence of this examination, the said report was not laid before Parliament (and so did not come into force) until 28 February 2013. It was then published in March 2013.

The Order is challenged on 2 grounds:

i. The first ground is that the decision to award compulsory acquisition powers is flawed for the failure to provide adequate reasons for concluding that there was a compelling case in the public interest for the award of such powers, in particular by failing to explain why it was concluded that there were no reasonable alternatives to compulsory acquisition.
ii. The second ground is that the Secretary of State failed, in light of the delay between the making of the Order and its coming into force, to consider whether it was necessary to update the environmental information available to him. This is alleged to be needed in order to ensure that the Order  was based on “current knowledge” as required, inter alia, by Article 5(1) of Directive 2011/92/EU and regs. 2 and 3 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009.

A second decision challenged is a decision of 27 March 2013 by the Secretary of State to refuse to change or revoke the Order. Given the delay in the Order coming into force, the Claimant wrote to the Secretary of State on 13 March 2013, and requested that the Secretary of State exercise his powers under s. 153 and paragraphs 3(3) and 3(7) of Schedule 6 of the 2008 Act to change or revoke the Order. This is alleged to be required in order for the Secretary of State, to consider whether it was necessary to update the environmental information available to him, for the same reasons as set out above. This request was refused.

James Maurici QC and Andrew Byass are appearing for the Claimant, FCC Environment (UK) Ltd, instructed by Nabarro.
David Blundell is appearing for the Secretary of State for Energy and Climate Change.
Tim Mould QC is appearing for the Interested Party, Covanta, instructed by DLA Piper.