R v Daventry District Council ex parte Thornby Farms; R v Derbyshire County Council ex parte Murray
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Robert Walker,Mr Justice Laddie |
| Judgment Date | 22 January 2002 |
| Neutral Citation | [2002] EWCA Civ 31 |
| Docket Number | Case No: C/2000/3180 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 January 2002 |
[2002] EWCA Civ 31
Lord Justice Pill
Lord Justice Robert Walker and
Mr Justice Laddie
Case No: C/2000/3180
C/2000/3300
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST (C/2000/3108 – COLLINS J) AND
ADMINISTRATIVE COURT LIST (C/2000/3300 – MAURICE KAY J))
Dr David Wolfe (instructed by The Public Interest Lawyers, 50–54 St Paul's Square, Birmingham) for the Appellants
Stephen Hockman QC and Peter Harrison (instructed by The John Hughes Law Practice, 4 Temple Row, Birmingham) for the 1 st Respondent
Alan Evans (instructed by The Solicitor and County Secretary, Matlock, Derbyshire) for the 2 nd Respondent
The decisions taken
These are appeals against a judgment of Collins J given on 6 September 2000 and a judgment of Maurice Kay J given on 6 October 2000. Before Collins J, Thornby Farms Ltd ("Thornby") sought to quash an authority granted to Time Right Incineration ("Time Right") by Daventry District Council ("Daventry") on 11 September 1998 under Part I of the Environmental Protection Act 1990 ("the 1990 Act"). The council authorised the company to "carry out the disposal of animal carcasses by incineration" at an address in Guilsborough, Northampton, subject to conditions.
In the action before Maurice Kay J, Mr David Murray ("Murray"), sought to quash a grant of planning permission by Derbyshire County Council ("Derbyshire") to Fitzwise Ltd on 4 July 2000. The company were given permission "to extend the waste disposal site including the recovery of coal and clays for use in brick manufacture and to line and cap the waste cells at Hall Lane Waste Disposal Site, Staveley …", subject to conditions.
Several points arise in the Thornby case. One of them is the same as the single point now taken in the Murray case and that it why it has been directed that the appeals be heard together. Mr Wolfe appears for both appellants.
Time Right were first granted an authorisation in 1993. It was varied in 1996. The authorisation was for "disposal by incineration of domestic pet animal carcasses". In 1998 it was sought to increase the capacity for incineration. Authorisation was given for two Pyrotec AP 300 incinerators, each with a capacity not to exceed 300 kg/hr. Authorisation was also given for two small individual crematories. Under the heading "Description of Authorised Process" it is stated that "the general nature of the process [is] the disposal by incineration of domestic pet animal carcasses". There was evidence that 40 to 50 tons of animal carcasses are incinerated each week and that is offensive to Thornby who are neighbouring owners and farmers.
In Murray, it is the waste disposal element in the development to which objection is taken. The permission provides that "the deposit of waste on the site and the removal of minerals off site shall cease on or before 30 November 2005". The permission increases the size of an existing landfill site and brings it closer to the village of Barrow Hill.
Statutory Background
The point common to the two appeals is the alleged failure of the relevant authority to give effect to Article 4 of Council Directive 75/442/EEC, as amended by 91/156/EEC and 96/350/EEC and usually referred to as the Waste Framework Directive. Article 4 provides:
"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:
— without risk to water, air, soil and plants and animals,
— without causing a nuisance through noise or odours,
— without adversely affecting the countryside or places of special interest.
Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste."
In Article 7(1), the provisions of Article 4 are referred to as "objectives".
Exercising powers conferred by section 2(2) of the European Communities Act 1972, and other Acts, the Waste Management Licensing Regulations 1994 ("the 1994 Regulations") were enacted to give effect to the requirements of the Directive. Under Regulation 1(3) "Directive Waste" is said to mean any substance or object in the categories set out in Part II of Schedule 4 which the producer or the person in possession of it discards or intends or is required to discard.
Paragraph 2(1) of the Schedule provides:
"… the competent authorities shall discharge their specified functions, insofar as they relate to the recovery or disposal of waste, with the relevant objectives."
Paragraph 4 of the Schedule is headed "Relevant objectives" and provides:
"(1) For the purposes of this Schedule, the following objectives are relevant objectives in relation to the disposal or recovery of waste——
(a) ensuring 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 without—
(i) risk to water, air, soil, plants or animals; or
(ii) causing nuisance through noise or odours; or
(iii) adversely affecting the countryside or places of special interest;
(b) implementing, so far as material, any plan made under the plan-making provisions.
(2) The following additional objectives are relevant in relation to the disposal of waste—
(a) establishing an integrated and adequate network of waste disposal installations, taking account of the best available technology not involving excessive costs; and
(b) ensuring that the network referred to at paragraph (a) above enables—
(i) the European Community as a whole to become self-sufficient in waste disposal, and the Member States individually to move towards that aim, taking into account geographical circumstances or the need for specialised installations for certain types of waste; and
(ii) waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health."
Further objectives are set out at paragraph 4(3). It is common ground that there is no material difference between the wording of Article 4 and the wording of paragraph 4(1) of Schedule 4.
There is a division of responsibility for the exercise of functions under Part I of the 1990 Act. Part I is relevant to Thornby but not to Murray. Responsibility for issuing the authorisation for the type of incineration involved in the Thornby case was with Daventry as the relevant enforcing authority under the Act. Section 6(1) of the Act provides:
"No person shall carry on a prescribed process after the date prescribed or determined for that description of process by or under regulations under section 2(1) above … except under an authorisation granted by the enforcing authority and in accordance with the conditions to which it is subject."
Section 6(6) provides:
"The enforcing authority shall, as respects each authorisation in respect of which it has functions under this Part, from time to time but not less frequently that once in every period of four years, carry out a review of the conditions of the authorisation."
Section 7 provides, insofar as is material:
"(1) There shall be included in an authorisation——
(a) subject to paragraph (b) below, such specific conditions as the enforcing authority considers appropriate, when taken with the general condition implied by subsection (4) below, for achieving the objectives specified in subsection (2) below;
(b) such conditions as are specified in directions given by the Secretary of State under subsection (3) below; and
(c) such other conditions (if any) as appear to the enforcing authority to be appropriate;
but no conditions shall be imposed for the purpose only of securing the health of persons at work (within the meaning of Part I of the Health and Safety at Work etc Act 1974).
(2) Those objectives are—
(a) ensuring that, in carrying on a prescribed process, the best available techniques not entailing excessive cost will be used—
(i) for preventing the release of substances prescribed for any environmental medium into that medium or, where that is not practicable by such means, for reducing the release of such substances to a minimum and for rendering harmless any such substances which are so released; and
(ii) for rendering harmless any other substances which might cause harm if released into any environmental medium;
(b) compliance with any directions by the Secretary of State given for the implementation of any obligations of the United Kingdom under the Community Treaties or international law relating to environmental protection;
(c) compliance with any limits or requirements and achievement of any quality standards or quality objectives prescribed by the Secretary of State under any of the relevant enactments;
…."
Section 7(4) provides:
"Subject to subsections (5) and (6) below, there is implied in every authorisation a general condition that, in carrying on the process to which the authorisation applies, the person carrying it on must use the best available techniques not entailing excessive cost—
(a) for preventing the release of substances prescribed for any environmental medium into that medium or, where that is not practicable by such means, for reducing the release of such substances to a minimum and for rendering harmless any such substances which are so released; and
(b) for...
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