R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Jonathan Parker,Lord Justice Thorpe |
| Judgment Date | 04 November 2003 |
| Neutral Citation | [2003] EWCA Civ 1546 |
| Docket Number | Case No: C1/2003/0049 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 November 2003 |
[2003] EWCA Civ 1546
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(Goldring J)
Lord Justice Thorpe
Lord Justice Jonathan Parker and
Lord Justice Dyson
Case No: C1/2003/0049
Mr Stephen Smith QC and Mr Stephen Tromans (instructed by Messrs Burges Salmon) for the Appellant
Mr Kenneth Parker QC and Mr Paul Harris (instructed by Defra Legal Department) for the Respondent
Introduction
This appeal concerns the manner in which an estimated 13,500 tonnes of potentially contaminated material left by the defendant on or under the claimant's farm land may be disposed of by the defendant. That material ("the residue") includes ash from pyres on which at least 4750 animal carcasses which had been seized and slaughtered by the defendant were burned (or attempted to be burned) during the foot and mouth disease ("FMD") epidemic in March and April 200It also comprises unburnt carcass parts. The claimant contends that the only lawful manner of disposal of the residue is by incineration at an incineration plant. He relies on (a) the (EU) TSE Regulation (999/2001/EC) ("the Regulation"); and (b) the (EU) Animal Waste Directive (90/667/EEC) ("the Directive").
The defendant contends that she is entitled to dispose of the residue to landfill, without any form of prior processing. She relies on the "derogation" option provided by point 10 of Annex XI to the Regulation. Before I identify and deal with the issues that arise on this appeal, I need to say something about the background and how this litigation arose.
Background
The claimant owns a farm named Sparum Farm, which is near Kidderminster in Worcestershire. Until the end of February 2001, it was run as a livestock farm. In late February/early March 2001, FMD was diagnosed in animals at the farm. The claimant had some 820 cattle and 700 sheep at that time. All these animals were seized and slaughtered by the defendant, and the decision was taken to burn their carcasses on pyres on the claimant's land. The pyres were built and the burnings commenced in mid-March 2001. The claimant also agreed to the burning on his land of at least 158 further cattle and 3080 sheep which had been seized and slaughtered by the defendant on other farms.
On 24 October 2001, the claimant launched judicial review proceedings following the defendant's refusal to begin clearing up the land following the burnings. He made a number of allegations. Relevantly for the purposes of the present appeal, these included allegations relating to both the buried and the unburied residue. The application for permission to apply for judicial review came before Stanley Burnton J on 27 February 2002. The defendant undertook to remove the residue which had not been buried, thereby obviating the need for the claimant to seek permission in relation to it. Permission was granted in respect of the failure to remove the buried residue, which at that stage the defendant was not willing to remove. The defendant's undertaking was in these terms:
"On or before 4pm on 27 March 2002 to remove from the premises known as and situate at Sparum Farm, Kidderminster, Worcestershire so far as is practicable all ash and burned or partially burned animal carcasses or parts thereof now lying upon the surface of the ground thereat and forming part of or resulting from pyres built for the purpose of destroying the carcasses of animals slaughtered by the defendant her servants or agents pursuant to the powers granted by section 31 of the Animal Health Act 1981."
When the defendant informed the claimant of her intention to remove the unburied residue to landfill, the claimant objected to the legality of that course. She, therefore, issued separate proceedings seeking a declaration that the course that she proposed to adopt was lawful. But these proceedings were never served. In fact, they were discontinued, and the defendant invited the claimant to make an application in the judicial review proceedings if he still wished to contest the legality of the proposal to remove the material directly to landfill. Thus it was that on 20 June 2002, the claimant issued an application in the judicial review proceedings for an order that the residue referred to in the undertaking given by the defendant to the court was required by law to be disposed of by incineration.
The Issues
A procedural issue arises (on the defendant's cross-appeal) as to whether the claimant had sufficient standing to challenge the lawfulness of the defendant's proposed course of action. The substantive issues raised by the claimant on the appeal are:
(a) whether the "derogation" option contained in point 10 to Annex XI of the Regulation can be invoked informally by the defendant (as occurred in this case), or whether domestic legislation is first required; and
(b) whether certain pre-conditions for the application of the "derogation" option were satisfied on the facts of the case.
Does the Claimant have standing?
The facts
This issue has undergone a number of twists and turns. Before the judge, it was submitted on his behalf that the claimant was seeking a declaration because he was concerned that the presence of the residue which had not been buried might expose him to civil or criminal liability under the Animal By-Products Order 1999 (SI 646 of 1999) ("ABPO") and/or the TSE (England and Wales) Regulations 2002 ( SI 843 of 2002) ("the TSE Regs"). The judge expressed doubts as to these alleged concerns. In the alternative, it was submitted that the claimant was acting in the public interest. It was said that his position was analogous to that of an environmental interest group, such as Greenpeace.
The judge dealt with the issue of standing in a rather summary way. At para 69 of his judgment, he said:
"As I have said, the claimant states that he is seeking this declaration in the public interest (among other reasons). That seems to me improbable. On 25 October 2001, his solicitors indicated that if he was paid sufficient by the defendant, he would be prepared to have the ash re-buried "in the correct manner" on his land. Otherwise he wants it taken away".
Later, he said:
"119. The first issue raised by the defendant is that the claimant has no standing to bring this action. No interest of his is affected. He is, whatever he claims, at no risk of prosecution. He is at no risk of civil liability. The claim that he is bringing the action out of public interest is spurious. I should not therefore entertain the action.
120. I can deal with this issue shortly. As will become clear, there is in my view no risk of the claimant being prosecuted. Neither is there any prospect of him bearing any civil liability. In the highly unlikely eventuality of him being sued, he would be able to claim an indemnity from the defendant. Mr Parker indeed suggested the defendant might well agree to indemnify in such circumstances. I have already stated that I find it improbable he is seeking this declaration in the public interest.
121. All that having been said, I shall consider this case on its merits. If, having heard argument, I consider that what the defendant is proposing is unlawful, it seems to me that in the public interest I should say so".
In order to examine this issue it is necessary to consider the history of the litigation in a little detail. On 24 October 2001, the defendant made an ex gratia offer of £20,333 to the claimant for the burning of carcasses brought in from other farms and the burial of resultant ash. The claimant's solicitors rejected this offer by their letter of the following day. They said that the offer was insufficient given the risk from remains of cattle born before 1 August 1996. Accordingly, they said that unless a more favourable offer were made, the claimant wished the unburied ash, burnt carcass remains and incorrectly buried ash to be removed from his property.
No further offer was made. The claimant pursued his judicial review proceedings, and as I have already said, on 27 February 2002, the defendant gave her undertaking. The claimant continued to express his concerns that the presence of the residue on his farm might expose him to liability. His concerns were based on a possible interpretation of Article 5(1) and (2) of ABPO. It is not necessary to set out these provisions, since it has not been submitted to us that the defendant's concerns were objectively well-founded.
By a letter dated 22 March 2002, the defendant sought to persuade the claimant that it was the defendant, and not the claimant, upon whom obligations were imposed by Article 5 of ABPO. Para 13 of the letter included:
"Whilst DEFRA accepts that your client may have legitimate concerns as to liability he may incur in relation to the disposal of the ash, DEFRA wishes to make plain that your client is not entitled to dictate the method of DEFRA's disposal of the ash…."
The next relevant event occurred on 24 May 2002 when the defendant issued proceedings seeking the declaration to which I have referred. On 10 June, the defendant informed the claimant that she intended to discontinue these proceedings, adding: "should your client wish to challenge the lawfulness of DEFRA's disposal methods, he should make an application to the court to do so." As I have already said, this is what the claimant did by his notice of application on 20 June 2002. He served his outline submissions on 28 August. The defendant...
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