An attempt by campaigners to stall construction of an incinerator and energy from waste facility has failed after the High Court rejected pleas that a local authority’s blunder had circumvented proper consideration of environmental issues and public participation in the planning process.

The campaigners submitted that, as a result of the council’s error, developers had commenced building work prematurely and sought an order stopping the multi-million-pound project in its tracks. However, in dismissing the judicial review challenge, the Court paved the way for the facility’s completion.

Planning permission for the development had been granted in June 2010 subject to a list of 25 conditions, many of which had to be satisfied before work on the site could start. The developer began construction work in July 2012, by which time the council had purported to discharge all but one of the pre-commencement conditions.

The council conceded that the discharge decisions were unlawful in that it had failed to comply with public consultation and other requirements of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. However, on the basis of a planning officer’s detailed report, the council in February 2013 refused to take enforcement action to stop the work.

The campaigners argued that the project had been started unlawfully. However, by the time the developer had been advised that the pre-commencement conditions had not been validly discharged, it had already entered into construction contracts in respect of the project and work had commenced three days later. The council had subsequently decided afresh to discharge the pre-commencement conditions.

The campaigners argued that the procedure followed by the council amounted to a grant of ‘de facto retrospective development consent’ in a way that side-stepped rules designed to protect the environment and to ensure full public consultation. It was submitted that the council had effectively rubber stamped the developer’s pre-emptive commencement of the work.

However, in dismissing the challenge, the Court found that each of the developer’s applications to discharge the pre-commencement conditions was supported by the appropriate details and had followed a full assessment of the environmental effects of the project. The council had properly satisfied itself that the works had been carried out in strict conformity with the details provided and, once it realised its error, there had been ‘no material error’ in the consultation process.