BEXLEY Council and the Mayor of London, Ken Livingstone, are to demand a full hearing of their case for a judicial review into the decision which will see a giant rubbish incinerator built in Belvedere.

Judge Andrew Gilbart QC rejected a joint application by Bexley and Mr Livingstone for a review of the decision made in July last year by Energy Minister Malcolm Wicks, in the High Court on January 8, after reading the case papers.

He said he found the case to be "totally without merit."

Bexley and Mr Livingstone had argued that the Government's decision should be reviewed because:

  • The Secretary of State failed to make a decision as to whether there was sufficient residual waste to feed the incinerator during its lifetime, or whether the incinerator would in fact rely upon waste which could have been the subject of further recycling and recovery and so would be in breach of national policy.
  • The Secretary of State misinterpreted national policy by taking into account the economic feasibility of further recycling or recovery without evidence as to this and by failing to apply the waste hierarchy strictly so that only waste which could not be further treated should be disposed off at the incinerator.
  • The inspector failed properly to apply the proximity principle by considering whether the incinerator was specifically the nearest appropriate installation for the disposal of the waste.

But Judge Gilbart said their case was "unarguable, given the very careful way it was dealt with" by the planning inspector Keith Smith at the original 13-week public inquiry in 2003 and its resumed hearings in 2005.

Following the High Court ruling, Bexley Council leader Councillor Ian Clement said that, after discussing the judge's decision with Mr Livingstone's team of advisers, they have now agreed to press for a hearing of their arguments for a review, in front of a judge.

Cllr Clement said: "The effects of the Government's decision (to allow the incinerator) upon the borough are so significant, that it must be right that such arguments are fully aired before a final ruling is made."

Riverside Resource Recovery Limited (RRRL) plans to build the incinerator on a riverfront site off Norman Road, Belvedere.

It will generate 72 megawatts of electricity by burning 585,000 tonnes of rubbish a year, brought in by river barge from other London boroughs such as Wandsworth and Hammersmith and Fulham in west London, and Westminster and City of London councils.

Opponents of the incinerator have been bitterly disappointed by the judge's decision.

One professional witness for BADAIR (Bexley and District Against Incinerator Risks) at the public inquiry into the project, claimed Judge Gilbart "gives a very convincing impression that he is a great fan of incineration."

Mr Livingstone says he fears the incinerator could discourage London's recycling efforts, undermine the attempts to limit climate change and would also be energy inefficient, since there is no customer for the heat it will generate.

Cllr Clement said: "Building an incinerator in Belvedere will be bad for Bexley, bad for London and bad for the environment.

"It is frustrating because we can see it, the mayor can see it, but the Government just will not listen to us."

John Austin MP, whose Erith and Thamesmead constituency contains the incinerator site, said he was delighted that Bexley and Mr Livingstone were now pressing for a hearing.

He said: "I do not think it appropriate that this matter should have been decided without a full court hearing."

Mr Austin called the minister's original decision to give the go-ahead for the project "flawed" and maintained it conflicted with both the London Mayor's and the Government's own waste strategies.

He also said Mr Wicks's decision was based on the false premise that most of the rubbish would arrive at the plant by river.

Mr Austin pointed out that only WRWA's rubbish would travel by barge and that as boroughs increased their recycling, more rubbish would have to be brought from further afield by lorry, to keep the incinerator operating.

Long-time opponent of the scheme, Bexleyheath and Crayford MP David Evennett said he was "bitterly disappointed" by the judge's decision.

He said: "The consequences for Bexley residents from the incinerator are considerable, and opposition to the development in our area has been unanimous."

He pledged to continue to look for any other ways of preventing the project from going ahead.

Bexley's London Assembly member Bob Neill described the decision as "a very dangerous precedent".

He added: "If proposals for the new incinerator are allowed to proceed, it will mean Bexley, with the best recycling record in London, is going to have the waste of west London shipped miles, to be burned on our doorstep. This is no kind of justice."

Belvedere councillor David Leaf said: "I am very disappointed with this decision and I know that the many campaigners who have been fighting the incinerator for more than a decade-and-a-half, will be deeply saddened by this terrible news.

"Residents living in Belvedere and throughout Bexley, do not deserve to have this happen to them and the environment."

But Cory Environmental, the parent company of RRRL, remains confident that the project will go ahead saying London needs the Belvedere incinerator to help deal with the capital's waste problem.

The Western Riverside Waste Authority (WRWA) also welcomed the judge's decision. The authority, which includes Wandsworth, Hammersmith and Fulham, Lambeth and Kensington and Chelsea, has pressed for the Belvedere incoinerator as the best means of dealing with its annual 500,000 tonnes of rubbish.

WRWA chairman, Kensington and Chelsea councillor Timothy Coleridge said: "The court's decision to refuse the application is an endorsement of the decision-making process.

"It affirms the authority's waste strategy, which is recycling led. The project is fully in line with national waste policy as well as maximising environmental safeguards by recovering energy and using the Thames for transport."

lAnd he endorsed the planning inspector's original decision saying: "The inspector rightly concluded that controlled incineration with energy recovery, has a major role to play in managing London's waste, contrary to the Mayor's view."

People in Bexley have been fighting the incinerator plans for more than 16 years and Bexley Council has spent more than £1.2m opposing it.

Cllr Clement has vowed that win or lose, Bexley will "go down fighting."

If Bexley and Mr Livingstone fail to convince a judge at a full hearing, the £200m incinerator, to be built on a 22 hectare site, could be up and running by 2010.

JUDICIAL REVIEW

INDIVIDUALS and organisations can apply for a judicial review of a decision made by a public body.

The review is usually carried out by a High Court judge and is a legal challenge to the way a decision has been made.

The judge can make his decision after reading the papers in the case, or after hearing a presentation. If a judge turns down an application for a review after reading the case papers, the applicant can still ask for a hearing to be held.

A judicial review does not judge whether a decision was right or wrong, but whether it was made illegally; whether it was so unreasonable, it could be described as "irrational" and whether the decision was made fairly.

If the application by Bexley Council and the Mayor of London was successful, it would not stop the incinerator from being built, but it could reopen the public inquiry so that the project could be reconsidered.