OPINION: Norfolk Blogger John Martin ponders the future...... 

Now sit up straight at the back and listen. This is deadly serious and – for once – not scurrilous. A lawyer writes. Mr Justice Nicol’s judgment was a disappointment to us all. However, let us put it in context. Michael de Whalley’s brave challenge in the High Court was costly and time consuming, but it was essential. That said, the exercise was no more than a single chapter in a lengthy novel. The judge’s decision simply said that NCC’s conduct in the latter stages of the incinerator procurement process was insufficiently unlawful to warrant bringing down on NCC the full rigours of a judicial review. It was not a vote in favour of the Saddlebow incinerator. It was not even a vote in favour of waste incineration. I must be clear about that. So let us consider the chapters that are yet to unfold, starting with an easy one.

CW has to obtain a permit from the Environment Agency to enable the incinerator to operate, should it be built. Routinely, this is usually easier to obtain than planning permission simply because if you are prepared to spend the money necessary to incorporate into the plant everything that the Environment Agency stipulates for, you are home and dry. But it is not guaranteed. It remains a hurdle.

More worrying by far for CW is the possibility that Defra, which has been withholding the waste infrastructure credits ever since NCC submitted its Final Business Case at the beginning of July, may refuse them altogether. That must be fatal. Not only financially would that make it impossible for NCC to go ahead, but also – in my view – politically. Heads would have to roll.

Shall we look on the black side? What if Defra has some kind of corporate brain attack, and makes the credits available? In that event, it will have failed to apply its own 2006 published criteria in as many as three respects and it will have laid itself open to a claim for judicial review. At that point, we can bring all possible pressure to bear on King’s Lynn Borough Council to spend some of its earmarked funds on bringing a challenge in the High Court – as Michael did – but on this occasion against Defra. Remember the mandate of 65,516 local votes in the statutory poll.

And what of planning permission? Nothing can happen without it, and record numbers of objections have already been made. More will follow as the consultation process rolls on. The pressure on the NCC planning committee will be enormous, because NCC is also the procuring authority. In the background is the argument that the existence of the famous compensation provisions in the contract with CW will make any decision by NCC to grant planning permission liable to challenge. This chapter of the novel could be quite lengthy.

OK, so the planning committee holds its nerve and decides to grant planning permission. No money can be found from any source to go back to the High Court. What then? That is not game over. There have been any number of formal requests to Eric Pickles to call in the planning application for his own determination, and that is the point at which he has to make up his mind. (In the case of the intended Veolia incinerator at Rainworth in Nottinghamshire, that is what he did and he refused planning permission in May this year.) If he calls it in, we move instantly to a much more level playing field. This is what happens.

Mr Pickles appoints a planning inspector to hold what is called a public local inquiry. This would undoubtedly be in Lynn. He or she will be a professionally qualified and completely independent person. All objectors will have a fair hearing. It will also be able to test the expert witnesses fielded by NCC and CW under cross-examination. The inspector will, some weeks after the inquiry closes, produce a detailed report to Mr Pickles with his conclusions and recommendations. (In the case of Rainworth, the document ran to over 270 pages.) Mr Pickles will then decide.

This chapter would be the longest of all. It would consume months and months. By then, the 2013 county council elections will be upon us and as Tim East has so wisely put it, this struggle is more about political survival than the future of Norfolk’s waste for many at County Hall.

So take heart, and understand that all is not lost. There are also many small skirmishes on foot. None will win the fight, but they play a part. Record numbers of standards complaints are going into County Hall, and there are presently two corporate complaints on the Local Government Ombudsman’s desk. Like my petition, the ultimate purpose is to shame the NCC Cabinet and encourage the Conservative backbenchers to show some mettle. If they don’t, they will surely be dragged down in 2013 by Cllr Derrick Murphy..