ADD2457 Legal challenge to Riverside Energy Park Generating Stations

1.1. On 9 April 2020, the Secretary of State for Business, Energy and Industrial Strategy Alok Sharma, announced his decision to grant Cory Environmental (Cory) a development consent order (DCO) for a new waste incinerator in Belvedere, Bexley. The Mayor has been clear that no more energy from waste incinerators is needed in London and had called on Government to decline planning permission for this new incinerator.

1.2. This ADD follows on from DD2358 and DD2409 (Riverside Energy Park Examination legal and consultant costs) under cover of which the Executive Director of Development, Environment and Enterprise approved budget expenditure on the planning examination process. A judicial review claim is a new process not covered by the previous DDs and as such a new approval is required to consent the expenditure associated with it. The first step was to prepare and submit an application claim to bring a judicial review under cover of a DAR up to £10,000. Having now been granted permission to bring a judicial review by the court, this ADD now seeks approval to pay Counsel fees of £30,000 for the GLA to proceed to substantive hearing stage. This takes the total value of work to £40,000.

1.3. The GLA worked through the planning decision examination process during April to October 2019 to demonstrate that this facility is not needed to manage London’s waste and will have a detrimental impact on recycling rates, climate change and air quality. In January 2020 the Examining Authority submitted a report to the Secretary of State recommending that the permission be granted a DCO.

1.4. Leading Counsel’s advice was sought on the Secretary of State’s decision papers and an Application for judicial review was issued into the High Court on 21 May. Acknowledgements of Service were received from the Defendant (Secretary of State) on 12 June, and from the Interested Party (Cory) on 10 June. On 27 June Mr Justice Kerr gave an Order granting permission to the Mayor to bring a judicial review. The Mayor wishes to proceed with his claim to a full substantive hearing.

1.5. The legal process could take around 3-12 months depending on the availability of the courts. The Secretary of State has sent a request to the Planning Court for the case to be designated as a “significant” planning case. If accepted the case would be prioritised and likely to be heard more quickly.

1.6. Officers will return with a separate decision request seeking approval for payment of potential third-party adverse costs (indicative range £12,000 - £50,000) should the Mayor lose at substantive hearing stage. It should be noted that the Court has a broad discretion as to the payment of legal costs by an unsuccessful party to the successful party, however in his Permission Order the Judge indicated that he does not expect significant additional costs to be incurred prior to the substantive hearing. The GLA may wish to challenge any costs award which is significantly above this indicative range.

2.1. To enable the Mayor to deliver a robust legal challenge, presenting clear evidence and grounds demonstrating that the Secretary of State’s decision fails to adequately address London and national environmental policy and commitments.

2.2. The GLA presented evidence through the examination process to support the argument that further incineration capacity is not required in London and would be detrimental to implementing national and London Plan and Environment Strategy policies. Bringing a legal challenge with a view to reversing the Secretary of State’s decision on these grounds is a means by which these harmful impacts might be avoided.

3.1 Under section 149 of the Equality Act 2010, in considering whether to grant this approval “due regard” must be had to the need to eliminate unlawful discrimination, harassment and victimisation as well as to advance equality of opportunity and foster good relations between people who have a protected characteristic and those who do not. Protected characteristics include age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, gender, sexual orientation (and marriage or civil partnership status for the purpose of the duty to eliminate unlawful discrimination only).

3.2 This duty has been taken into account. The Mayor opposes the DCO decision on the grounds that it conflicts with Energy, Waste and Air Quality policies in the London Environment Strategy and London Plan, both of which have been the subject of public consultation. Poor air quality in particular has the potential to impact disproportionately on the health of young people, elderly people and those with disabilities, and it is important that the Mayor’s view is represented robustly. No other equalities issues have been identified having regard to the nature of the proposals.

Key Risks and issues

4.1 If the Mayor’s opposition to the DCO is not robustly represented there is a risk that the London Plan would be undermined, thereby impacting the Mayor’s ability to carry out his statutory duties.

Links to Mayoral strategies and priorities

4.2 The Mayor’s London Plan and draft London Plan contain strategic planning policies promoting carbon reduction, managing waste efficiently, promoting recycling and protecting Londoners against the effects of poor air quality. The London Environment Strategy similarly contains strategies aimed at promoting renewable energy, reducing the climate-change impacts of London’s waste activities, and the acceleration of London towards a low-carbon circular economy. It is the Mayor’s position that the proposed energy from waste proposal fails to meet a number of his policies and strategies and as such the planning application should be rejected.

4.3 There are no conflict of interests in the drafting and clearance of this ADD.

5.1 Approval is sought for the additional expenditure of up to £30,000 on legal proceedings in challenging the CORY Development Consent Order.



5.2 The budget breakdown for this expenditure has been provided in the decision section above in which a delegated authority record granted permission for up to £10,000 to be spent on submitting an application claim for a judicial review. Therefore, permission is required for the additional £30,000 which will bring the total cost of this challenge to £40,000.

5.3 This challenge will be funded by underspends identified within the 2019/20 Environment Teams Zero Carbon budget which has been assigned to the 2020/21 CORY Incinerator Development budget. Dependent upon how far the Authority progresses within the judicial review process additional costs may be incurred, however this will be subject to further approval.

6.1 Part II Greater London Authority Act 1999 (as amended) (GLAA) sets out the general functions and procedure of the GLA, starting with the general power in section 30, which provides as follows:-

(1) The Authority shall have power to do anything which it considers will further any one or more of its principal purposes.

(2) Any reference in this Act to the principal purposes of the Authority is a reference to the purposes of –

(a) promoting economic development and wealth creation in Greater London;

(b) promoting social development in Greater London; and

(c) promoting the improvement of the environment in Greater London.

6.2 The section 30 functions are exercisable by the Mayor acting on behalf of the GLA (s.30(10)).

6.3 The powers in section 30 (2) (c) are interpreted broadly. It is considered that they are sufficiently broad to permit the GLA to incur the expenditure detailed above in bringing a judicial review claim to the Secretary of State’s decision to approve the Riverside Energy Park Generating Stations Order, given the environmental impact of this, the Mayor’s environmental policies and the London Environmental Strategy.

6.4 The decision is in accordance with the Authority’s decision-making framework.

6.5 Officers should ensure that the services be procured by Transport for London Procurement who will determine the detail of the procurement strategy to be adopted in accordance with the GLA’s Contracts and Funding Code. Officers must ensure that appropriate contract documentation is put in place and executed by the successful bidder(s) and the GLA before the commencement of the services.

7.1 These timescales are largely outside GLA’s control and depend on court resources and whether permission is granted.