R v Bolton Metropolitan Council and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CARNWATH |
| Judgment Date | 19 December 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1219-18 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/2873/97 |
| Date | 19 December 1997 |
[1997] EWCA Civ J1219-18
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London WC2
Mr Justice Carnwath
CO/2873/97
MR C GEORGE QC and MR M FORDHAM (Instructed by Messrs Tyndallwoods, Edgbaston) appeared on behalf of the Applicant.
MR S J SAUVAIN QC (Instructed by the Legal Department, Bolton Metropolitan Council) appeared on behalf of the Respondent.
MR J GOUDIE QC and MR J CAMERON (Instructed by Messrs Keogh Ritson, Bolton) appeared on behalf of Greater Manchester Waste Limited, the Intervenors.
Friday 19th December 1997
This is technically an application for leave to bring judicial review proceedings. However, in view of the urgency of the matter, Sedley J on 22nd October 1997 ordered that it should come on before me prepared for full argument as though leave had been granted. I shall therefore deal with it on that basis. The applicant seeks to challenge the validity of a planning permission granted by the first respondent ("the Council") to Greater Manchester Waste Ltd ("the Company").
The background is as follows. The Company is a local authority waste disposal company, created pursuant to Part II of the Environmental Protection Act 1990. Its sole shareholder is the Greater Manchester Waste Disposal Authority ("the WDA"), which in accordance with that Act transferred to the company its waste disposal undertaking. The company is responsible for the handling and management of all municipal waste in the WDA's area including the area of the Council. One of its facilities is an incineration plant at Raikes Lane Industrial Estate, Bolton. The various local authorities in Greater Manchester, including the Council, act as waste collection authorities and deliver domestic waste to the Company for disposal. The WDA itself remains responsible for making arrangements for the disposal of the waste so collected through waste disposal contractors including the company (s 51). It is made up of representatives from local authorities in Greater Manchester including the Council.
The Bolton incinerator ceased operation on 1st December 1996 (after 25 years life), because its existing flue gas cleaning apparatus did not comply with the standards set under the relevant European Directives. A planning application was submitted to the Council on 10th December 1996 for:
"installation of a waste recovery system and replacement of flue gas cleaning equipment with associated storage tanks and external pipe network".
Prior to closure the site handled 150,000 tonnes of waste annually, of which 80,000 was incinerated. This left 21,600 tonnes of ash, which together with the remaining 70,000 tonnes of unburnt waste was taken to landfill. On completion of the current proposals, it is intended that the same total tonnage will be handled, but 128,000 tonnes will be incinerated resulting in 36,100 tonnes of ash and 22,000 tonnes of unburnt waste for transfer to landfill. The overall effect therefore is that the total quantities disposed of to landfill will be reduced substantially. During the period of closure the site is being used as a transfer loading station for the 150,000 tonnes of waste, all of which is being disposed of to landfill.
Following public consultation on the application, planning permission was granted on 30th May 1997 by the Planning Control Sub-Committee of the Council. A detailed report was prepared for that meeting by Mr Perigo, the group planning officer responsible for waste disposal operations. As appears from his report, the application gave rise to considerable controversy locally. In particular the report reveals disagreements within the Council itself over the extent to which it had been shown that the proposals represented the "best practical environmental option" ("BPEO"), and also whether there should be a further independent assessment of their environmental effects. Mr Perigo himself recommended the grant of permission subject to conditions. I shall need to return later to the detail of his report and conclusions.
Mr Kirkman is a local resident. He lives some 1,000 metres from the site, and he belongs to the local residents' association. He attended a public meeting at Bolton Town Hall in March 1997 to voice his opposition along with many others. Following the grant of permission, he investigated the possibility of challenging the decision. His main concerns were about emissions to air and in particular the effect of dioxins. He was also concerned about noise. With the aid of his solicitors and the local branch of Friends of the Earth, who also opposed the application, he was able to satisfy the Legal Aid Board that he had reasonable grounds for challenging the decision. His right to bring the proceedings has not been challenged before me. The application for leave was lodged on 12th August 1997. As I have said, the matter was expedited by Mr Justice Sedley on 22nd October, when leave was also given for the Company to intervene.
On behalf of the applicant, Mr George has identified a number of what he calls "major issues of environmental law" arising in the case. However, the over-riding question, as he puts it (relying on the words of Lord Diplock in Secretary of State for Education v Tameside BC [1977] AC 1014, 1065 A-B) is:
"Did the Council ask itself the right question and take reasonable steps to acquaint itself with the relevant information to enable it to answer it correctly?"
He submits that the Council failed in a number of respects, which I can summarise under two main headings:
Air emissions
(1) They failed to address or answer questions relating to hazards caused by air emissions, but instead left those to the Environment Agency:
(2) They misunderstood and failed to discharge their duties under Article 4 of the European Waste Framework Directive (91/156/EEC), as applied by the Waste Management Licensing Regulations 1994, Schedule 4.
(3) Their decision was procedurally flawed in that they failed to delay the decision until (i) further information requested by the Environmental Health Officer had been obtained and (ii) new material put in front of them by the Bolton Friends of the Earth had been properly considered.
BPEO
(4) They failed to address or answer the question whether the proposal for incineration of waste represented the best practicable environmental option for the relevant wastes.
(5) They misunderstood and failed to discharge their duties under Article 3 of the Waste Framework Directive, as applied by the same regulations.
Legal and policy framework
As so often, in cases relating to environmental law, it has been necessary to consider a large number of statutory and policy documents, emanating from Europe as well as from this country. From those it is necessary to extract a clear picture, first, of the complex regulatory framework governing planning and environmental control of waste operations, and, secondly, of the specific duties relevant to this case. It is only after analysis of this material that the "correct question" can be identified.
In conducting this analysis, it is important to draw a clear distinction between the "correct question" itself, and the considerations which may be "material" in answering it. If the statute formulates the relevant question in a particular way, then it must be answered in those terms. But more usually the question is posed in general terms, and the statute does no more than indicate, expressly or by implication, the considerations which are to be regarded as material. In that case, the weight to be given to those considerations is a matter for the determining authority.
Thus, in Tesco Stores Ltd v Secretary of State [1995] 1WLR 759, 780, Lord Hoffman said:
"The law has always drawn a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a matter of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planing authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision making process."
The proposition that "materiality is a question of law" needs to be read in the light of previous statements of high authority as to how that question of law is to be determined. In Re Findlay [1985] AC 318, 333, Lord Scarman quoted with approval the following statements of Cooke J in CreedNZ inc v Governor-General [1981] 1NZLR 172:
"What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, or even that it is one which many people, including the Court itself, would have taken into account if they had to make a decision." (p183).
and later on the same page:
"There will be some matters so obviously material to a decision on a particular project that anything short of direct consideration by the ministers…. would not be in accordance with the intention of the Act."
Lord Scarman (in a speech with which the other members of the House agreed) accepted those passages as:
"A...
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