The planning application for an energy-from-waste plant in the East Highlands is to go back to public inquiry following a court ruling.

Combined Power and Heat (Highlands) first applied for planning permission for the development of a 100,000-tonne combined heat and power plant (with ancillary development) at Cromarty Firth Industrial Park, Invergordon, in 2008. However, after The Highland Council rejected permission in 2009 (over concerns about road safety), and the developers appealed the decision, the application was called in for public inquiry. This resulted in permission being granted in November 2012.

Yesterday (28 August), however, Scotland’s Court of Session ruled that the application should be revisited by a Scottish Government reporter, as the original decision was ‘invalid for the fundamental reason that it enlarge[d] the permission beyond that which was applied for and was considered at the inquiry’.

Permission went beyond EIA allowance

This related to the fact that the environmental impact assessment (EIA) allowed for waste originating from the Highlands only, but the planning inspectorate approved plans for the plant to accept waste from external sources.

The judgement specifically found that Condition 2 of the reporter’s original permission (for the plant to process ‘a maximum of 100,000 tonnes per annum of non-hazardous waste originating within [The] Highland Council area although this total may include waste from pre-treatment facilities located within the Highland Council area, a proportion of which may have originated beyond the Highland Council area’) gave The Highland Council and estate agents Ross Estates Company (the appellants in the legal challenge) an ‘unfairdisadvantage’ as they had ‘not had the opportunity fully to consider the planning implications of the enlarged consent that the developer did not seek, still less to lead evidence or make submissions on the point’.

As such, the three judges hearing the case, Lord Clarke, Lord Menzies, and Lord President, determined: ‘Since the environmental implications of a condition allowing importation of waste without limit were not considered at the inquiry, the appellants were deprived of the opportunity to comment on the condition or to lead evidence on the point. If the developers had sought permission on the basis that the proposed plant would accept waste from outside the Highland area, that proposal might well have raised issues that were not covered by the EIA. It is not for us to assume that an amended proposal of that kind would not have raised such issues.’

The application must now go back to a reporter who will be required to hear evidence as to whether planning permission could be granted now that the court has ruled out Condition 2.

‘Almost all of the community are firmly against this incinerator coming to Invergordon’

Councillors at The Highland Council welcomed the decision, with Cromarty Ward Councillor Maxine Smith saying: “I am delighted that we have the opportunity to go back to inquiry to argue that planning permission should be refused. This incinerator is not wanted in Invergordon by the majority of people living here.

“Myself and my colleagues refused this application way back on 18 August 2009 at The Highland Council’s Caithness, Sutherland and Easter Ross Planning Applications Committee, and we will continue to fight it as long as it takes.”

Councillor Martin Rattray added: “I think this is a positive outcome, and I am sure the community will welcome this as they have worked so hard and fought with such enthusiasm. Almost all of the community are firmly against this incinerator coming to Invergordon, and it is a credit to their efforts and the work of the council’s legal team that the decision today has been made.

“I would also like to thank the full council for backing our original decision to turn down the application.”

Find out more about the plans to build an incinerator in Invergordon