Government overturns Vale Council Barry Biomass enforcement notice

Deputy leader of the council, Councillor Bronwen Brooks, said it was “most unfortunate” that it had taken Planning and Environment Decisions Wales (PEDW) as long as it had to come to its decision.

The council served a notice on the biomass burning plant on Woodham Road in 2021 after finding a number of alleged discrepancies with the plans which were approved in 2015.

Barry Biomass UK No.2 Ltd., managed by Aviva Investors, appealed to PEDW shortly after, claiming that the enforcement notice was inaccurate and disproportionate.

It wasn’t until February that PEDW invited the council to consider how the alleged breach could be corrected. A PEDW spokesperson said the enforcement notice was found to be irretrievably flawed.

The council suggested an amendment to the enforcement notice in April, but the planning inspectorate later requested that the council withdraw the enforcement notice.

After the local authority refused to do this, PEDW announced on August 22 that it had decided to quashed the notice.

Cllr Brooks claimed that PEDW appeared to have given more weight to the views of the developers than those of the council in the appeal process.

The deputy leader also made it clear that the council will not be immediately re-serving a new notice.

She said: “This is a highly sensitive case, which is of significant interest to the public in the Vale of Glamorgan, and the council feels it is most unfortunate that it has taken PEDW as long as it has to get to this position.

“It is also regrettable that PEDW did not seek to clarify these matters at the earlier opportunity.

“Furthermore, the delays that have occurred in this process have to a certain extent only disadvantaged residents and the council, as the developers have used the time as an opportunity to submit new planning applications for the development.

“Moreover, it is extremely regrettable that PEDW appear to have taken the views of the developers and given them more weight and importance than those of the council or residents.”

The Docks Incinerator Action Group (DIAG) said it was extremely disappointed with the council’s statement and said it was disgusted with what it called "a capitulation".

A spokesperson for DIAG said: “DIAG had already written to the Vale Council offering to help them. 

“DIAG identified more than 10 possible reasons to Judicially Review the Inspector’s decision and recover the public’s legal right to an Environmental Impact Assessment. We have had no response.”

DIAG went on to accuse the council of rolling over and conceding “everything to big business”.

The spokesperson added: “DIAG has no doubt that the history of this incinerator through the planning processes makes a mockery of Welsh planning and environmental law.

“It is very sad as local democracy seems to have been lost along the way.

“The Welsh Government is under an obligation to sort this out. All they need to do is issue a Stop Notice. Let the developers start again and deal with matters lawfully.”

The alleged discrepancies with the original planning application included the layout and elevation of the development; additional structures, plant and equipment; and an extension of the site to the north.

After appealing the council’s enforcement notice, Barry Biomass UK made a number of planning applications to regulate the biomass burning plant. 

These will be brought before the council’s planning committee for consideration in autumn.

Cllr Brooks added: “Nevertheless, it must be noted that the original aims of the serving of the notice were to ensure that the development would not become lawful without the required conditions of compliance and to encourage the developers to submit a new planning application to regularise the development which would allow the council to fully consider the as built development.

“In both cases the service of the notice has been successful in clarifying the legal position of what has been built and in ensuring that a formal planning application is submitted to allow the council to consider the as built scheme against current policy.

“On that basis the council will not be immediately re-serving a new notice and hopes instead to present the current planning applications for the as-built development to the Planning Committee in the autumn.

“Following the determination of these applications the council will consider if any further formal action is necessary.”

Other than the appeal, PEDW is also considering an application for costs made by Barry Biomass UK against Vale of Glamorgan Council.

This application will be subject to a separate decision.

Vale of Glamorgan Council said it had little choice but to serve the enforcement notice when it did as it wanted to ensure that the developers were not able to gain consent by default, which could have rendered conditions applied to the original application null and void.

The original enforcement notice stated: “Without planning permission, the carrying out of operational development comprising the construction of a wood fired renewable energy plant together with associated structures on that part of the land edged green on the plan.”

It also included the following remedy to the alleged breach: “Permanently remove the renewable energy plant including all buildings, plant and associated equipment from the land.”

New evidence brought before PEDW by Barry Biomass UK showed that there was a need to alter the notice to accurately reflect the reported planning breaches which took place.

Following a Vale of Glamorgan Council planning committee meeting on April 27, committee members agreed to put forward an amendment to the enforcement notice for PEDW’s consideration.

It stated: “The breach of planning control alleged in the Enforcement Notice to refer to the carrying out of operational development comprising the construction of a wood fired renewable energy plant together with associated structures not in accordance with the details and plans approved under planning application (i.e. a breach of condition(s) of that permission). (ii) The requirements of the Enforcement Notice to include the carrying out of the development in accordance with the details and plans approved under planning application.”

On July 17, the planning inspectorate sent a letter to the council stating that reporting on both the original notice and the suggested corrections would introduce significant additional uncertainty and complexity to the inquiry.

It added that there was a significant risk of extending the number of inquiry sitting days and the likelihood of requiring a significant period of adjournment.

A PEDW spokesperson said: “The Vale of Glamorgan Council were invited to withdraw the Enforcement Notice as it was found to be irretrievably flawed.

“The council declined and a decision was issued quashing the Enforcement Notice. Should the council serve a new notice correcting the errors identified by the Inspector, any appeal will be prioritised in accordance with PEDWs standard procedures.”

The council said it had received legal advice suggesting that the notice could be amended in the way that it suggested.