Ardley Against Incineration v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judgment Date | 08 July 2011 |
| Neutral Citation | [2011] EWHC 2230 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2905/2011 |
| Date | 08 July 2011 |
[2011] EWHC 2230 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
John Howell QC
(Sitting as a Deputy High Court Judge)
CO/2905/2011
MR D WOLFE (instructed by Public Interest Lawyers) appeared on behalf of the Claimant
MR D KOLINSKY (instructed by Treasury Solicitors) appeared on behalf of the Defendant
MR D ELVIN QC (instructed by Bevan Brittan) appeared for the Interested Party
THE DEPUTY JUDGE: This is an application under section 288 of the Town and Country Planning Act 1990 by an unincorporated association, Ardley Against Incineration. The Claimants seek an order quashing the Secretary of State's decision granting Viridor Waste Management Limited ("Viridor") conditional planning permission to construct and to operate an energy for waste ("EfW") facility at the Ardley landfill site in Oxfordshire.
The Claimants contend that the Secretary of State erred in law when dealing with local concerns about air quality having regard to their contention that an EfW facility of the capacity proposed was not needed in this location. Their contentions have been put forward in a number of different ways in their claim form, in the skeleton arguments submitted by Mr David Wolfe (who appeared on their behalf) and in his oral submissions. In summary form, however, the Claimants contend the Secretary of State erred in law in three main respects.
(i) First they allege that the Secretary of State erred in treating local residents' concerns about the effects of airborne emissions from the proposed EFW facility as not being planning matters, but rather as being matters to be dealt with by the Environment Agency when that agency was deciding how to exercise its powers under the Environmental Permitting (England and Wales) Regulations 2010 ("the 2010 Regulations").
(ii) Secondly, the Claimants allege that the Secretary of State erred in assuming that, if the Environment Agency was satisfied with the technology to be used in, and with the emissions from, the EfW facility proposed, its impact on air quality and health would be insignificant and acceptable. They contend that the Environment Agency simply focuses on the operation of the plant as specified and as located at Ardley without considering whether there should a plant of the size proposed and whether it should be in this location.
(iii) Thirdly, in relation to air pollution resulting from traffic generated by the proposed development, the Claimants contend that the Secretary of State merely satisfied himself that certain standards would be met.
These errors meant, so the Claimants contend, that the Secretary of State failed to comply with his obligations under paragraph 1(1) of part 2 of schedule 25 to the 2010 Regulations.
THE 2010 REGULATIONS AND THE WASTE FRAMEWORK DIRECTIVES
The 2010 Regulations are mainly concerned with the imposition of a scheme requiring "regulated facilities" to have, and to operate in accordance with, an environmental permit. Such "regulated facilities" include (unless they are exempt or excluded) places where potentially polluting activities, such as waste recovery and disposal, are carried on. The regulator under the regime for environmental permits is either the Environment Agency or the local authority depending on the type of facility involved. The regulator for the EfW facility proposed is the Environment Agency.
The 2010 Regulations also deal with some aspects of the inter-relationship between the planning regime and the regime for environmental permits and they transpose the requirements of certain European directives into domestic law.
At the time of the Secretary of State's decision, paragraph 1(1) of Part 2 of Schedule 25 to the 2010 Regulations provided that:
"Every authority must exercise its specified functions in relation to every waste operation…for the purpose of implementing article 4 of the Waste Framework Directive."
When he determined Viridor's planning appeal under section 78 of the Town and Country Planning Act 1990, for the purposes of this provision, the Secretary of State was exercising a specified function in his capacity as a planning authority. The use of waste principally as a fuel or as other means to generate energy was a waste operation. Prima facie therefore, the Secretary of State was required (by virtue of paragraph 1(1)) to exercise his powers when determining the appeal:
"for the purposes of implementing article 4 of the Waste Framework Directive."
Paragraph 4(1) of that Part of that Schedule also provided, however, that:
"Nothing in paragraph 1…of this Part requires a planning authority to deal with the matter which an appropriate authority or a regulator has power to deal with."
The Secretary of State and Welsh ministers are appropriate authorities when not discharging their planning functions. When discharging other specified functions in relation to waste operations, they were required to exercise them for the purposes of implementing article 4 by virtue of paragraph 1 to which I have referred. More significantly for present purposes however, regulators (who are the persons responsible for environmental permits) such as the Environment Agency were also required to exercise their relevant functions for the same purpose by virtue of paragraph 4 of Schedule 9 to the 2010 regulations.
Paragraph 4(1) did not preclude a planning authority such as the Secretary of State from exercising his functions in relation to a particular matter for the purpose of implementing article 4. Planning authorities were given a discretion not to do so by that provision when an appropriate authority or regulator had the power to deal with that matter. That was no doubt because, as I have mentioned, both of those other types of authorities were subject to the same duty and it might be more convenient or appropriate to leave a particular matter to be dealt with by them so as to secure compliance with the result that article 4 of the Waste Framework Directive required Member States to achieve.
The Waste Framework Directive as defined in the 2010 Regulations at the time of the decision was Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste ("the 2006 Directive"). Article 4.1 of the 2006 Directive provided that:
"Member states shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular:
(a) Without risk to water, air or soil or to plants or animals;
(b) Without causing a nuisance, noise or odours;
(c) Without adversely affecting the countryside or places of special interest.
This provision was identical to the first paragraph of article 4 in an earlier waste directive, Council Directive 75/442 EEC on waste as amended ("the 1975 Directive"). The 2006 Directive re-enacted the 1975 with minor changes. The Grand Chamber of the Court of Justice considered the nature of article 4 and its significance in the context of the 1975 directive in Case C-494/01 EC v Ireland [2005] ECR 1-3331. It stated that:
"165. It is to be remembered that the obligation to dispose waste without endangering human health and without harming the environment forms part of the very objectives of Community environmental policy and that article 4 of the directive is intended in particular to implement the principle that preventive action should be taken contained in the second sentence of the first sub paragraph of article 174(2) EC by virtue of which it is for the Community and Member States to prevent, reduce and, insofar as is possible, eliminate from the outset the sources of pollution or nuisance by adopting measures for nature such as to eliminate recognised risks…
166. First, article 4 of the Directive sets out various objectives which Member States must observe in their performance of the more specific obligations imposed on them by other provisions of the Directive…
167. According to the very wording of the first paragraph of article 9(1) of the Directive and article, 10 thereof, it is inter alia for the purposes of implementing' article 4 that any establishment or undertaking which carries out waste disposal operations or waste recovery operations must obtain a permit…This phrase means that the implementation of article 4 is meant to be achieved in particular by issuing individual permits…
168. Second, even though the first paragraph of article 4 of the Directive does not specify the actual content of the measures to be taken in order to ensure that waste is disposed of without endangering human health and without it harming the environment, that provision, which contains obligations independent of those arising from the other provisions of the Directive, is nonetheless binding on the Member States as to the objective to be achieved, while leaving to them a margin of discretion in assessing the need for such measures…
169. While it is true that it is, in principle, not possible to draw the direct inference from the fact that a situation is not in conformity with the objectives laid down in the first paragraph of article 4 of the Directive, that the Member State concerned has necessarily failed to fulfil the obligations under that provision, namely to take the requisite measures to ensure that waste is disposed of without endangering human health and without harming the...
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