Wisbech incinerator delayed by government decision to pause issuing incineration permits                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

Days ago, it was reported that the government has halted permits for new waste incinerator facilities across England, leading to much concern and many questions around the subject, with all eyes looking firmly to the Environmental Agency.

Here, our Compliance Manager Andrew Greenwood, discusses in detail what’s happening and the potential impact of this issue...

On 7th April the BBC reported that the government has halted permits for new waste incinerator facilities in England, including one opposed by Environment Secretary Steve Barclay in his constituency. The Environment Agency, the non-departmental government body responsible for determining waste incinerator applications, has apparently been instructed to pause granting incineration permits temporarily and to evaluate the role of waste incineration in waste management and consider if the existing capacity aligns with government objectives. Applications for 10 incinerators are affected, except those for clinical or hazardous waste disposal.

According to the BBC the government previously sought internal legal advice on the issue and was advised of the potential for the decision to be challenged in court as the decision to delay permit applications occurred very shortly after the decision by the Department for Energy Security and Net Zero to grant planning permission for the incineration facility in the Mr. Barclay’s North East Cambridgeshire constituency. The internal legal advice note allegedly states that

"The strong impression is, and the allegation in litigation will undoubtedly be, that any decision not to award a permit to go ahead was taken on grounds of political advantage, rather than on legitimate policy grounds."

Mr. Barclay has expressed strong opposition to the incinerator, labeling it a "massive blot on the landscape" and has suggested he supports legal action against its construction. While the government emphasizes waste reduction and recycling goals, Labour has raised concerns about potential conflicts of interest and demand clarity on Mr. Barclay's involvement. Mr. Barclay has denied directly influencing the project and apologised for not recusing himself from the process sooner.

This decision by the government could have serious repercussions. Normally the need for new waste developments, which includes whether the capacity is required, is determined by the planning process. Once a development has been granted planning consent the developer is required to obtain a permit to operate the facility from the EA. The EA has no legal role to assess whether there is a need for the development as part of the permit application process. Often local action groups will press the EA to not issue a permit for a contentious site once planning permission has been granted, as they see the granting of a permit as the last barrier to site becoming operational.  

However, the EA can only refuse a permit application for specific reasons such as:

• unacceptable environmental risk or damage to habitats or species;
  
• insufficient evidence of operator competence;
  
• inadequate management plans;
  
• requests for information not being responded to;
  
• the Environment Agency not agreeing that your application to permanently deposit waste is a recovery operation; and
  
• the site not being in a satisfactory condition, if the application is to surrender a permit.
  

So, what are the possible consequences of this decision by the government, beyond the delays for the existing 10 permit applications? I think there are 3.

1. The government risks setting a precedent which could result in similar capacity reviews for other waste activities.
   
2. The decision potentially blurs the boundary between land use planning and environmental permitting requirements.
   
3. It could put investors off from investing in energy from waste projects until the outcome of the capacity review is known, or any legal challenge has passed through the courts.
   

However, it could all be a moot point, as it is increasingly looking like the outcome of this year’s general election will see a change of government.

This is significant because a new government may take a different approach, particularly given comments about the way this government has handled the application. However, we can’t be certain what a new government’s approach would be, which In itself introduces further uncertainty for investors.