England and Wales Court of Appeal (Civil Division) Decisions

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))

		Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 22 January 2002

Lord Justice Pill:

The decisions taken

1. 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.
2. 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.
3. 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.
4. 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.
5. 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

6. 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".

7. 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.
8. 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."

9. 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.

10. 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 rendering harmless any other substances which might cause harm if released into any environmental medium."

Section 7(10) provides:

"References to the best available techniques not entailing excessive cost, in relation to a process, include (in addition to references to any technical means and technology) references to the number, qualifications, training and supervision of persons employed in the process and the design, construction, lay-out and maintenance of the building in which it is carried on"

Section 7(11) provides:

"It shall be the duty of enforcing authorities to have regard to any guidance issued to them by the Secretary of State for the purposes of the application of subsections (2) and (7) above as to the techniques and environmental options that are appropriate for any description of prescribed process."

11. The "substances prescribed" mentioned in section 7(2) are identified in Schedule 4 to the Environmental Protection (Prescribed Processes and Substances) Regulations 1991, made under the 1990 Act. Relevant for present purposes are oxides of sulphur (which includes sulphur dioxide), oxides of carbon (which include carbon monoxide) and particulate matter.

Reference is also made to section 4 of the Act. Section 4(3) provides, insofar as is material:

"The functions applicable to such processes shall be exercisable for the purpose of preventing or minimising pollution of the environment due to the release of substances into the air (but not into any other environmental medium)."

Section 4(9) provides:

"It shall be the duty of local authorities to follow such developments in technology and techniques for preventing or reducing pollution of the environment due to releases of substances from prescribed processes as concern releases into the air of substances from processes designated for local control."

12. Before referring to the facts, I consider two points which arise in the Thornby case upon the definition of the relevant waste.

Thornby - Nature of waste (1): Is it clinical waste?

13. The Secretary of State has published at least three guidance notes dealing with Part I of the 1990 Act. The first (GG (91) of April 1991) contains general guidance and is said not to come within section 7(11) of the 1990 Act. The second (PG 5/1 (95) August 1995) is headed "Clinical waste incineration processes under 1 tonne an hour". The third (PG 5/3 (95) August 1995) is entitled "Animal remains incineration processes under 1 tonne an hour". On behalf of Thornby, it is submitted that the authority have wrongly applied PG 5/3 rather than PG 5/1 which provides for much tighter controls and outer emission limits. It is submitted that the waste was clinical waste as defined in Regulation 1(2) of the Controlled Waste Regulations 1992 [SI 1992/588]:

"(a) any waste which consists wholly or partly of human or animal tissue, blood or other body fluids, excretions, drugs or other pharmaceutical products, swabs or dressings, or syringes, needles or other sharp instruments, being waste which unless rendered safe may prove hazardous to any person coming into contact with it; and

(b) any other waste arising from medical, nursing, dental, veterinary, pharmaceutical or similar practice, investigation, treatment, care, teaching or research, or the collection of blood for transfusion, being waste which may cause infection to any person coming into contact with it."

It is stated in paragraph 6 of PG 5/3 that the incineration of animal remains is the subject of a separate note but that the provisions of PG 5/1 "should be complied with where animal remains and more than incidental amounts of clinical waste are co-incinerated".

14. The definition of waste in Regulation 1(2) appears in Regulations defining what is and is not to be treated as household waste, industrial waste and commercial waste. The categories identified in the definition do not appear to me apt to cover the disposal of animal carcasses as such. At an inquiry held into an application by TimeRight for planning permission for a waste transfer station on the site the Inspector concluded (13 May 1999) that there "were no grounds to suspect that clinical waste would be incinerated". The judge (paragraph 8) recalled Mr Wolfe as having recognised that he could not pursue "the issue of possible incineration of clinical waste coming into the waste transfer station and has not done so". In PG 5/3 "animal remains" are distinguished from "clinical waste". Animal carcasses, for the disposal of which authorisation has been given, are in the former category. I reject the submission that the District Council have applied the wrong guidance note.

Thornby - Nature of waste (2). Is it Directive Waste?

15. The District Council submit that the waste to be incinerated is not Directive Waste within the meaning of that expression in the Waste Framework Directive and the 1994 Regulations. Directive Waste is defined in Regulation 1 as excluding "anything excluded from the scope of the Directive by Article 2 of the Directive". Article 2 provides:

"1. The following shall be excluded form the scope of this Directive:

(a) gaseous effluents emitted into the atmosphere;

(b) where they are already covered by other legislation:

(i) radioactive waste;

(ii) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries;

(iii) animal carcasses and the following agricultural waste: faecal matter and other natural, non-dangerous substances used in farming;

(iv) waste waters, with the exception of waste in liquid form;

(v) decommissioned explosives.

2. Specific rules for particular instances or supplementing those of this Directive in the management of particular categories of waste may be laid down by means of individual Directives."

Thus Article 2 excludes certain matters from the scope of the Directive "where they are already covered by other legislation" and amongst the matters excluded are "animal carcasses". Article 2(2) makes provision for "specific rules for particular instances ... by means of individual Directives".

16. The District Council submit that the animal waste to be disposed of at the site is already covered by other legislation, the Animal Waste Directive (90/425/EEC) and the Air Pollution Directive (84/360/EEC). In Circular 11/94 the Department of the Environment also expressed the view that the Animal Waste Directive was relevant "other legislation" within the meaning of Article 2. That Directive has been implemented by the Animal By-products Order 1992 (SI 1992 No 3303), as amended.
17. Animal waste is defined in Article 2 of that Directive as "carcasses or parts of animals or fish, or products of animal origin not intended for direct human consumption, with the exception of animal excreta and catering waste". It is divided into high risk and low risk material. High risk material is that referred to in Article 3, the first sub-category being "All bovine animals, pigs, goats, sheep, solipeds, poultry and all other animals kept for agricultural production, which have died on the farm but were not slaughtered for human consumption, including still-born and unborn animals". That category plainly does not cover the present case. The nine other categories specified in the Article are of a type with category (a) and far removed from the present facts. The Article appears in a Chapter headed "Rules concerning the processing of animal waste and the placing on the market of the final product". Provision is made in Article 3(2) for disposal "by burning or by burial". I agree with the judge that the Animal Waste Directive is not "apt or intended to cover the disposal of pets". It does not constitute legislation covering the animal carcasses now under consideration and the contrary view expressed in Circular 11/94 is in my judgment to that extent wrong.
18. The judge, however, held that the Air Framework Pollution Directive (84/360/EEC) was relevant "other legislation" covering animal carcasses. The Directive is, however, of general application, its stated aim in Article 1 being "to provide for further measures and procedures designed to prevent or reduce air pollution from industrial plants within the community, particularly those belonging to the category set out in Annex 1. Annex 1 includes many categories of industrial plant. That relied on by the District Council is the category with the heading "waste disposal". It provides:

"5.1 Plants for the disposal of toxic and dangerous waste by incineration.

5.2 Plants for the treatment by incineration of other solid and liquid waste".

19. Mr Wolfe submits that the Air Framework Directive does not constitute "other legislation" within the meaning of Article 2 because it does not provide a level of protection equivalent to that provided by the Waste Framework Directive (a point he also makes in relation to the Animal Waste Directive). While to some extent that submission begs the question as to what level of protection is intended for operations such as the present one, it is not without force because it would be surprising if the overall scheme did not provide a high standard of control for this type of operation for the disposal of waste.
20. In my judgment, the Air Pollution Direction is not that "other legislation" contemplated in Article 2 of the Waste Framework Directive. First, Article 2(2) contemplates "specific rules for particular instances being laid down by 'means of individual directives' ". Each of the categories of waste set out in Article 2(1)(b) is markedly specific. The requirement for "other legislation" is not in my judgment met by the general and broad aims of the Air Pollution Directive, in which there is no specific reference to animal waste.
21. Mr Wolfe was not disposed to rely, in support of his submission, on the presence of the word "already" in Article 2(1)(b) together with the fact that the Air Pollution Directive of 1984 post-dated Article 2 in the Waste Framework Directive which was first adopted in 1975, though other parts of the Directive were amended in 1991. If the word "already" is used in its usual sense, as I assume it is, that is a further pointer to the fact that Article 2 contemplated existing legislation specific to the operation in question as necessary to exclude that operation from the Directive. It is unlikely that the 1991 amendments, by a side-wind, converted the 1984 Directive into relevant "other legislation". Even if the expression "already covered" is used in the sense of "otherwise covered", it is unlikely that the adoption of the 1984 Directive was intended to cover "animal carcasses" in the absence of a specific reference to them.

Thornby: Facts and submissions

22. The incinerators were authorised to operate with a level of emission of pollutants at concentrations higher than those at which the incinerators were capable of operating. Reliance is placed on a consultant's report dated March 1998 following measured emissions of pollutants to the atmosphere. It was stated in the report that "monitoring coincided with a period of routine rate and pattern of use of the incinerator". It is further stated that "no untoward circumstances were experienced during monitoring and therefore data are considered to be suitably representative of usual operation." The level of emission authorised was that stated in Guidance Note PG 5/3 (95), paragraph 17, where it is stated that "the following concentrations of pollutants should not be exceeded in any emission to air". The measured value of emissions was, with respect to some pollutants, considerably lower than those which paragraph 17 provided should not be exceeded.
23. The Note is stated to be "issued by the Secretary of State as a guide to local enforcing authorities on the techniques appropriate for the control of air pollution in relation to animal remains incinerators in order to achieve the objectives set down in section 7(2)(a) of the Environmental Protection Act 1990". It is stated that the note "comprises guidance in relation to new and existing processes and is based on an assessment of best available techniques as qualified by the requirement not to entail excessive cost". ("BATNEEC"). The terminology reflects that in section 7(2)(a) of the Act. The provisions of section 7(11) of the Act, requiring enforcing authorities to have regard to any guidance issued to them by the Secretary of State when determining appropriate techniques in relation to the objectives in section 7(2), are mentioned. It is stated that "the guidance will be updated regularly to reflect changes in knowledge and understanding".
24. Two other tables of figures were before the judge, dated January 1999 and March 2000. The judge's conclusions were:

"From this, it is apparent that levels considerably below the authorised limits can be achieved. Therefore, submits Mr Wolfe, the Council ought in order properly to apply BATNEEC to reduce the limits to reflect what can be achieved. But there must be some leeway and it is necessary to recognise that variations can occur; indeed, they have when one compares the two tables. The council must keep the authorisations under review and these tables may indicate that lower limits may be appropriate. But they do not provide any support for a submission that the limits fixed in September 1998 were unlawful.

In my judgment the evidence shows that Mr Walsh did have the proper objectives in mind and did apply BATNEEC properly. He performed his duties in a thoroughly conscientious fashion. It is apparent that he did not slavishly apply the limits in the Note. He took advice and decided for good reasons that those limits did represent BATNEEC and he imposed them with the correct objectives in mind. Accordingly, this application fails."

25. Daventry were the "competent authority" under the 1994 Regulations (Schedule 4, paragraph 2(1)). Mr Walsh was Daventry's Principal Health Officer. We were told that, in giving authorisation, he acted under powers delegated to him. His reasoning is set out in a statement made after he had taken the decision and made for the purpose of these proceedings. No point is taken on the absence of a pre-decision report or on the use in evidence of the post-decision statement.
26. In his statement, Mr Walsh states that in considering BATNEEC he did not "slavishly follow the Process Guidance Note although of course … gave it considerable weight. I also ensured that [Daventry] received appropriate advice from NIFES".
27. Mr J A Burrell of the National Industrial Fuel Efficiency Service Ltd has made a statement. He belongs to the section advising on Environmental Protection Act compliance and set out the factors he relied on in advising Daventry when application was made in January 1998 for a substantial change in the authorisation process. He stated:

"31. Taking all the above factors into account it was felt that the scheme provided by Timeright for the replacement of the outdated Pathpak 1000 incinerator with a new PG5/3(95) compliant Pyrotec AP300 unit was the BATNEEC option.

32. As discussed lower emission standards might in theory be achievable but only at the expense of excessive costs or creating other environmental problems. Therefore in the absence of any factors specific to this site my approach was to conclude that the Process Guidance Note PG5/3(95) did provide appropriate guidance as to the detailed standards to be applied to Timerights application."

He continued:

"38. It needs to be borne in mind that many disparate local authorities exercise control over incinerators such as those authorised to Timeright. Most authorities are not of the size where they can be expected to have their own in house expertise in order to define appropriate local BAT standards. For these they rely on the detailed guidance issued by the government to indicate what standards are BATNEEC.

39. The purposes of the emission limits (amongst other standards) in the Guidance Note is to enable authorities to assess whether a proposed process will produce harmful emissions to atmosphere given the material that it is proposed to be incinerated. If every local authority had to set its own BAT standards there would be a wide disparity in the emission requirements etc in different areas of the country. Such inconsistencies would be unworkable and would lead to unnecessary extra costs and/or disputes between operators and local authorities.

40. The standards set out in the Process Guidance notes are those judged to be appropriate to a particular waste disposal option. Thus PG5/3 indicates the emission level etc, that if achieved will constitute BAT for the incineration of animal remains.

41. It is not correct to suggest that the Council has slavishly followed guidelines rather that applied BATNEEC. It is not necessary to go through a BATNEEC exercise right from scratch each time an authorisation is varied. It is permissible for local authorities to rely on Government Guidance provided there are no factors to suggest that guidance is in some way out of date such that it no longer represents BAT…"

28. In treating the figures in paragraph 17 of PG5/3 as BATNEEC, Mr Burrell relies on the introductory passage in the Note which provides that "this Note comprises guidance in relation to new and existing processes and is based on an assessment of best available techniques as qualified by the requirement not to entail excessive cost".
29. Reference was first made on behalf of Thornby to the alleged failure by the Council through further enquiries, which could be international as well as national, to discover what was the best available technique for incineration, by way of "preventing or minimising" pollution. Paragraph 22 of the "Secretary of State's Guidance – Introduction to Part 1 of the [1990] Act" (PG 1 (91)) provides that in each case it is for the local authority "to decide what is BATNEEC for the individual process and the local authority inspector concerned should take into account variable factors such as configuration, size and other individual characteristics of the process in doing so". Reliance is placed on sections 4(9) and 10(1) of the 1990 Act, which entitle the enforcing authority to vary an authorisation and include different conditions.
30. Mr Wolfe relies on the provisions of Article 4 of the Waste Framework Directive and paragraph 4 in Part I of Schedule 4 to the 1994 Regulations. The duty is a very high one, he submits. Mr Wolfe does not submit that the obligation to "ensure" is an absolute obligation. He submits that the statement of Objectives in Article 1 of Directive 2000/76/EEC on the incineration of waste, not yet effective, spells out the test to be read into Article 4 and paragraph 4. Article 1 provides:

"The aim of this Directive is to prevent or to limit as far as practicable negative effects on the environment, in particular by emissions into air, soil, surface water and groundwater, and the resulting risks to human health, from the incineration and co-incineration of waste.

This aim shall be met by means of stringent operational conditions and technical requirements, through setting emission limit values for waste incineration and co-incineration plants within the Community and also through meeting the requirements of Directive 75/442/EEC"

31. Mr Wolfe also relies on the wording of section 7 of the 1990 Act. There shall be included in an authorisation specific conditions "for achieving the objectives" in sub-section (2). The first objective is to ensure that the best available techniques not entailing excessive costs will be used for "preventing" the release of prescribed substances. It is only where that is not "practical" that the obligation is met by "reducing" the release of such substances to a minimum. Mr Wolfe contrasts that wording with the wording of section 4(3) which puts "preventing or minimising" in the alternative.
32. There is no evidence, it is submitted, that efforts have been made or enquiries undertaken to find whether the release of prescribed substances can be "prevented". It is further submitted that the obligation to reduce the release of prescribed substances "to a minimum" is not met by conditions which permit levels of emission higher, and in some cases considerably higher, than the level which the incinerator is capable of achieving. The obligation in section 7 is to achieve the objectives and not merely to try to do so.
33. It is not now contended that an incinerator other than the Pyrotec AP300 should have been used. The complaint is that a condition "to ensure" that the best techniques "will be used" was not imposed. If the incinerator was not required to be used to its best standard, there was a breach of obligation. There is no evidence to suggest that the incinerators cannot be operated at the levels of emission found by the consultant to exist on monitoring. The condition imposed allowed a less efficient manner of operation by permitting higher emissions of prescribed substances. There can be a breach without proof of demonstrable harm to amenity. An approach requiring best standards is reinforced by the provisions of section 4(9) of the Act requiring the Council to follow developments in technique for "preventing or reducing pollution of the environment".
34. The levels of emission stated in the Note are no more than a "longstop" provision, it is submitted. The levels stated "should not be exceeded" but are not intended or expressed to be a model for conditions upon an authorisation. Mr Walsh was wrong to conclude that the emission levels in the table in paragraph 17 represent BATNEEC. The judge's conclusion that "for good reasons, it was decided that the limits in the Note were appropriate to achieve BATNEEC" was erroneous when monitoring showed that better results could be achieved without there being any evidence that the cost would be greater.
35. It was not central to the submissions of the parties but reference needs to be made to Regulation 8 of the 1994 Regulations. It has the heading "Modification of Part I of the [1990 Act]". Regulation 8, sub-paragraph (2), provides that an enforcing authority granting an authorisation is not ordinarily required "to take account of the relevant objectives insofar as they relate to the prevention of detriment to the amenities of the locality in which the process is (or is to be) carried out if planning permission, resulting from the taking of a specified action by a planning authority after 20^th April 1994, is or, before the process is carried on, will be in force". Counsel agreed that the purpose of the sub-paragraph was to give effect to the principle of non-duplication of function between the authorising authority and the planning authority. Mr Evans, for Derbyshire, relies on the presence of the expression "take account of the relevant objectives" to support the submission that those objectives were not to have a special status. I bear that submission in mind and agree with counsel about the purpose of the sub-paragraph. I cannot read it as derogating from the obligation under Article 4 and Regulation 4, whatever content that obligation is held to have. In taking decisions, a planning authority has that obligation. On the facts of the present cases, the issue of apportionment of responsibilities between authorities does not arise.

Murray: Facts and submissions

36. In Murray, Derbyshire were the "competent authority" under the 1994 Regulations (Schedule 4, paragraph 2(1)). The Council were provided with a detailed report by their Director of Environmental Services before a decision was taken. It is clear that the use of the site for waste disposal was the main purpose of the permission. The Director of Environmental Services stated that "The principal use of the site is for waste disposal with an after-use of amenity woodland." Having referred to the coal and clay recovery, he stated that "The main consideration is whether the principal waste disposal operations satisfy the relevant criteria …" (p 158)
37. In the section entitled "Planning Conclusions", the Director accepted that there is "no overriding need for the proposed extension" but stated that the site was well suited to serve the relevant area. He stated that "the proposal is for a relatively modest extension to the existing waste disposal facility which would extend the permitted operations by approximately one year". He referred to the clay extraction which would ensure an adequate supply of raw materials in the local brick-works for about 3 years. He referred to the land as "derelict and unsightly" and stated that "the development would result in the restoration of the derelict land to an acceptable after-use within a relatively short time period. … The restoration landform would provide a 'green screen' between the village and the unsightly Staveley Chemical Works". He concluded that the benefits of the proposal outweigh the disbenefits. The disbenefits would be minimised by the proposed method of operation, progressive restoration and mitigation measures.
38. Reference is made by Mr Wolfe to the Waste Management Hierarchy, adopted by the OECD Member Countries, and referred to in the 17^th Report of the House of Lords Select Committee on European Communities (1998): first "prevention" (avoidance, reduction, minimisation), second "recovery" (re-use, recycling, composting, energy recovery) and third "disposal" (incineration without energy recovery, landfill, indefinite storage). The hierarchy should be considered, Mr Wolfe submits, in the context of the "additional objective" in paragraph 4(2)(a) of Schedule 4 to the 1994 Regulations of "establishing an integrated and adequate network of waste disposal installations taking account of the best available technology not involving excessive cost". Landfill is a last resort and, in the absence of need, Derbyshire were required to refuse planning permission.
39. Before the judge, it was accepted that "the permitted development would have some adverse environmental consequences and that there is no immediate need for the permitted development". Before this Court, by reference to the Director's report, there was some argument upon those matters but I do not consider that it is open to either party to reopen those factual questions. The Director reported that "The remaining reserves in these existing or approved voids [landfill sites] should be sufficient for waste arising in this area for up to 20 years. I therefore consider that there is an adequate supply of facilities within the sub-area to meet its needs".
40. The judge concluded that he had no doubt that "The Council had due regard to the relevant objectives and that whatever weight was afforded to them is not susceptible to challenge". The point taken is that in granting planning permission for a polluting landfill for which there was no need and in circumstances where landfill is the disposal method of last resort, the Council were in breach of their obligation under Article 4 and the 1994 Regulations.

The authorities

41. Reference has been made to cases in the European Court of Justice in which the effect of Article 4 of the Waste Framework Directive has been considered. When considering the duty to subject to supervision by the competent authority "undertakings transporting, collecting, storing, tipping or treating [waste]" (Article 10 of the Waste Framework Directive), the Court stated in Ministere Public v Traen, joined Cases 372 to 374/85:

"That provision does not therefore lay down any particular requirement restricting the freedom of the Member States regarding the way in which they organise the supervision of the activities referred to therein. That freedom must, however, be exercised having due regard to the objectives mentioned in the third recital in the preamble to the directive and in Article 4 thereof, namely the protection of human health and of the environment."

That statement was cited with approval in Comitato di Coordinamento per la Difesa della Cava and Others v Regione Lombardia and Others (Case C-236/92).

42. In Commission v Italian Republic ECR 1991 I-7773 the Court declared that:

"By not taking the measures necessary to ensure that the waste discharged into the watercourse bisecting the San Rocco valley is disposed of without endangering human health or harming the environment … the Italian Republic has failed to fulfil its obligations under the first paragraph of Article 4 …"

The Commission had "adduced sufficient evidence to show that biological and chemical waste had been discharged into the watercourse which bisects the San Rocco valley".

43. The Court analysed the effect of Article 4 in this way:

"66. Under the first paragraph of Article 4 of the amended directive, the Member States are to 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, plants and animals, without causing a nuisance through noise or odours, and without adversely affecting the countryside or places of special interest.

67. Whilst that provision does not specify the actual content of the measures which must be taken in order to ensure that waste is disposed of without endangering human health and without harming the environment, it is none the less true that it is binding on Member States as to the objective to be achieved, whilst leaving to the Member States a margin of discretion in assessing the need for such measures.

68 From the fact that a situation is not in conformity with the objectives laid down in the first paragraph of Article 4 of the amended directive, then, the direct inference may not in principle be drawn that the Member State concerned has necessarily failed to fulfil its obligation under that provision to take the requisite measures to ensure that waste is disposed of without endangering human health and without harming the environment. However, if that situation persists and leads in particular to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities, it may be an indication that the Member States have exceeded the discretion conferred on them by that provision."

44. The objective stated in Article 4 is unqualified but the Court has recognised that, in taking the measures necessary to achieve it, Member States are left a margin of discretion is assessing the need for the measures to be taken to achieve it. The Court has expressly recognised that Article 4 confers a discretion. That discretion goes first to the need for measures and, second, to their timing. While the objective is unqualified and the discretion will be closely supervised, the Court has recognised that there may be harm to the environment from the disposal of waste without there necessarily being an actionable breach of the Article.
45. The Court adopted the reasoning in that case in Commission v Hellenic Republic (Case C-387/97) in its judgment of 4 July 2000:

"55. It should be noted that, whilst Article 4 of Directive 75/442 did 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 harming the environment, it was none the less binding on Member States as to the objective to be achieved, while leaving to them a margin of discretion in assessing the need for such measures (Commission v Italy, paragraph 67).

56. Thus the Court has held that a significant deterioration in the environment over a protracted period when no action has been taken by the competent authorities is in principle an indication that the Member State concerned has exceeded the discretion conferred on it by that provision (Commission v Italy, paragraph 68)."

46. The Court considered the facts of the case:

"62. It should be remembered that the present proceedings stem from a complaint received by the Commission on 22 September 1987, drawing its attention to uncontrolled waste disposal in the mouth of the river Kouroupitos, on the Akrotiri peninsula, by the majority of the municipalities in the prefecture of Chania. The waste included refuse from military bases in the area, hospitals and clinics, and residues from salt factories, poultry farms, slaughterhouses, and all the industrial sites in the area.

63. In a study produced to the Court by the Greek Government entitled 'Environmental Impact of Uncontrolled Solid Waste Combustion in the Kouroupitos Ravine, Crete, which was carried out in June 1996 by the Laboratory of Environmental Engineering and Management of the Technical University of Crete, in collaboration with the Institute of Ecological Chemistry, Munich, it is stated:

'… The solid wastes are disposed of in the Kouroupitos ravine located approximately 30 km east of Chania, on the Akrotiri peninsula. The wastes are dumped into the ravine from the top at a distance of 200 m from the sea without any other care. The wastes have been uncontrollably burning for at least 10years, while the burning is self-supporting due to the high levels of organic matter. The improper waste disposal combined with the uncontrolled burning of the solid wastes has resulted in an environmentally hazardous situation, with the leachate seeping into the [sea], and the products of the burning process being transferred both to land and sea.'

64. As regards, first, fulfilment of the obligation imposed by Article 4 of Directive 75/442 to dispose of waste without endangering human health and without harming the environment, the Greek Government does not dispute that solid waste, in particular household refuse, is still tipped into the river Kouroupitos.

65 It is clear from the letters from the Prefecture of Chania to the Ministry of the Environment of 7 and 18 August 1998, disclosed by the Greek Government, that most of the waste still ends up, in the same uncontrolled and unlawful manner, in the Kouroupitos ravine, which today receives all the household waste from the urban area of Chania.

66. The Greek Government concedes in its rejoinder that 'in any event, only the definitive solution to the problem, that is to say discontinuing the operation at the river Kouroupitos and introducing a modern, lawful and effective system, could be regarded as fully satisfactory."

The Court found that such measures as the Greek authorities had taken, and had planned, to deal with the situation were insufficient and that the Hellenic Republic was in breach of Article 4 "as regards adoption of the measures necessary to ensure that waste is disposed of in the area of Chania without endangering human health and without harming the environment". The facts are very different from those of the present case. They disclose a long-standing and continuing discharge of waste into a river and the harm to the environment is demonstrable and substantial.

47. It is submitted that against the background of decisions of the ECJ the objective in Article 4 (and Regulation 4) has a high status. The obligation is to prevent or limit as far as practicable the negative effect set out in Article 4. In Thornby that meant, at least, setting emission limits in the authorisation not materially above the level which the plant could demonstrably achieve. Failing such a condition, and for commercial or operational reasons, the operator can lawfully operate the plant in a more polluting way.
48. In the context of Murray, the imperative introduced by Article 4 is to select the least bad way of dealing with waste, it is submitted. The sanctioning of an admittedly polluting landfill when there was no need for it involves a breach of the Article 4 obligation.
49. In R v Leicestershire County Council ex p Blackfordby and Boothorpe Action Group [2001] Env LR 35 there was a challenge to a planning permission for the disposal of a large quantity of waste in circumstances in which the need for additional landfill capacity was established. The central question was the status, for the purposes of a planning decision, of the environmental "objectives" laid down in Article 4 and by the 1994 Regulations. Richards J referred to the decision of this court in R v Bolton MBC ex p Kirkman [1998] Env LR 719. On an application for permission to appeal, Schiemann LJ stated that he was satisfied that the applicant in that case would not be able to show that the relevant objectives were not considered by the local planning authority. Richards J acknowledged that the issue did not appear to have been developed in Kirkman in the way it had been developed before him (and as it has been put in the present case). Richards J stated, at p 57-58:

"48. I therefore take the view that the balance of authority is against Mr Wolfe's submissions. Even leaving aside authority, the proposition for which he contends should in my view be rejected. It would give to the relevant objectives an indeterminate status, lying in unsatisfactory middle ground between that which must be taken into account in the decision-making process and that which must be achieved by the decision. It is true that in the course of argument I had some concern that to treat the objectives 'merely' as material considerations might be to water down their legal status. Paragraph 2(1) of Schedule 4 to the 1994 Regulations does not use the language of taking the objectives into consideration. It requires that planning decisions be taken 'with' the relevant objectives. This may be contrasted with certain other statutory provisions which impose in terms an obligation to 'have regard to' specified objectives (e.g. Airports Act 1986 s.43(5), Police Act 1997 s.2(4)). I have come to the conclusion, however, that there is no real distinction between those formulations. What matters is that the objectives should be taken into consideration (or had regard to) as objectives, as ends at which to aim. If a local planning authority understands their status as objectives and takes them into account as such when reaching its decision, then it seems to me that the authority can properly be said to have reached the decision 'with' those objectives. The decision does not cease to have been reached with those objectives merely because a large number of other considerations have also been taken into account in reaching the decision and some of those considerations militate against the achievement of the objectives.

49. A further argument advanced by Mr Wolfe in support of the proposition that the objectives must amount to more than a material consideration is that it is generally open to a decision-maker to decide what weight to give to material considerations, whereas it must be contrary to the directive to give the objectives little or no weight. It may be that the general rule concerning the weight to be given to material considerations would need to be qualified in the case of the objectives and that it would amount to a misdirection to fail to give them substantial weight. I do not consider it necessary to decide that point in the present case because there was in my view no failure by the Council to give them substantial weight."

50. The expression "material considerations" is found in section 70 of the Town and Country Planning Act 1990. Section 70(2) provides that in dealing with an application for planning permission, a local planning authority shall have regard to the provisions of the Development Plan, so far as material to the application, and to any other material considerations. The expression does not appear in the relevant provisions of the Environmental Protection Act 1990 and Regulations thereunder but it is conceded that Article 4 is a material consideration when making a decision authorising the use of an incinerator, subject to conditions. It must be taken into account when taking the decision.
51. In Murray, Maurice Kay J stated that he was satisfied that "the limits of the obligation imposed upon the Council are those so clearly set out by Richards J". He did also state that "it does seem a little odd that obligations arising from supra national negotiations and expressed in apparently strong language are reduced in national implementation to material considerations of unquantifiable weight".
52. The objective in Article 4 is binding on the Council. In referring to "necessary measures", it contemplates positive action whereas it is the failure to prevent action which is complained of in Murray and, in a sense, in Thornby; failure to refuse the landfill extension in Murray and failure to impose more stringent conditions in Thornby. Paragraph 2(1) of Schedule 4 refers to discharging functions with the relevant objective, terminology which readily encompasses all relevant decisions. I do not consider that anything turns in these cases on the different form in which the obligation is stated in the Directive and in the Regulations.

Conclusion on "objective"

53. An objective in my judgment is something different from a material consideration. I agree with Richards J that it is an end at which to aim, a goal. The general use of the word appears to be a modern one. In the 1950 edition of the Concise Oxford Dictionary the meaning now adopted is given only a military use: "towards which the advance of troops is directed". A material consideration is a factor to be taken into account when making a decision, and the objective to be attained will be such a consideration, but it is more than that. An objective which is obligatory must always be kept in mind when making a decision even while the decision maker has regard to other material considerations. Some decisions involve more progress towards achieving the objective than others. On occasions, the giving of weight to other considerations will mean that little or no progress is made. I accept that there could be decisions affecting waste disposal in which the weight given to other considerations may produce a result which involves so plain and flagrant a disregard for the objective that there is a breach of obligation. However, provided the objective is kept in mind, decisions in which the decisive consideration has not been the contribution they make to the achievement of the objective may still be lawful. I do not in any event favour an attempt to create a hierarchy of material considerations whereby the law would require decision makers to give different weight to different considerations.
54. That accords with the approach the ECJ had in mind when the Court used the expression "due regard" in Traen and when in Commission v Italian Republic the Court referred to the "margin of discretion in assessing the need for such measures" (paragraph 67) and accepted that the existence of a situation not in conformity with the objective does not necessarily involve a breach of Article 4 (paragraph 68). The above analysis, which substantially agrees with that of Richards J at his paragraph 48, is also consistent with the wording of Article 249 of the Treaty: "A directive shall be binding, as to the result to be achieved, … but shall leave to the national authorities the choice of form and methods".

Conclusion - Thornby

55. As to Thornby, there is in my judgment no breach of duty by Daventry in failing to "prevent" the release of prescribed substances under section 7(2)(a)(i) of the 1990 Act. A consultant's report was obtained and they were in my judgment entitled to make the assumption, on the basis of that report, that the release of prescribed substances could not be prevented. Whether they are in breach of their obligation to reduce the release of such substances to a minimum is more difficult. They must ensure that the best available techniques not entailing excessive cost are used to reduce the release to a minimum. Under section 7(1)(a) they shall include in an authorisation specific conditions for achieving that objective. Though no complaint about it is made by the appellants, I do find it surprising that the decision maker did not set out in writing, prior to taking his decision, the considerations relied on. Had the decision been taken by a committee, Mr Walsh would no doubt have reported to that committee in writing. I am not of course doubting the good faith of Mr Walsh but it is not satisfactory, for example in relation to BATNEEC, that the procedure which was followed is set out is only after the event.
56. On the point taken by the appellants, the issue is whether the best available technique was used. It is not a case in which considerations other than working towards the Article 4 objective arise. The evidence does not establish that the higher standard suggested would involve additional costs. Unlike the situation when most planning decisions are taken, there were, on the evidence, no competing considerations to be weighed by the decision maker.
57. On behalf of Daventry, Mr Hockman QC submits that there is no evidence that the incinerator could always operate at the standards achieved upon monitoring. A margin should in any event be allowed when fixing the maximum level for emissions. Daventry could not be criticised for adopting the limits specified in the Guidance Note.
58. I do not accept the submission that the paragraph 17 levels represent BATNEEC, as asserted by Mr Walsh and Mr Burrell. It is inconsistent with the opening words of paragraph 17 which provide that the specified concentrations "should not be exceeded". That is not the same as providing that they are inevitably the best which can be achieved. The submission is inconsistent with the obligation in section 7(2) to ensure that the best available techniques will be used and to reduce release "to a minimum". It is inconsistent with the continuing obligation in section 4(9) to follow developments in techniques for reducing pollution. I construe the word "techniques" in that section, and in section 7(2), as covering not only the machinery used but its most effective use in terms of reducing pollution.
59. Mr Burrell's approach, as set out above, cannot in my judgment fully be endorsed. It is not a question of Daventry setting its own standards. It is simply a question of meeting the statutory obligation. They have received a report from Dr BC Acton establishing emission levels which, in the words of the judge, were considerably below the authorised limits. Advice should have been sought as to the levels to set, given the results of monitoring and the BATNEEC obligation. Mr Burrell (or Mr Walsh) may well have wished to confer with Time Right's consultant, Dr Acton, before advice was given.
60. Mr Burrell's generalities about "excessive costs" and relying on "Government Guidance" do not meet the point. There is no evidence that setting the levels actually achieved upon monitoring would increase costs and relying on a Government specified upper limit does not ensure that the best available technique is being used. Enquiry as to whether it was realistic to impose the levels found upon monitoring, or some other levels, does not involve going "through a BATNEEC exercise right from scratch". It may or may not have revealed the need for margins to cover less favourable operating conditions or other contingencies. The obligation is to use the incinerator effectively, in terms of reducing pollution, and the need for substantial margins cannot, in the absence of evidence, be assumed. Consideration should have been given to stricter control of emissions of prescribed substances. In this legislative context, the appellant does not have to prove specific damage to the environment to establish a breach of obligation. The nature and extent of the damage will of course be relevant factors when the cost element of BATNEEC is considered.
61. The objective in Article 4 and Regulation 4 and the obligation in section 7(2) of the 1990 Act to use BATNEEC will not always be met by specifying the highest emission permitted by paragraph 17 of the Guidance Note. The enforcing authority must address itself to what is the best available technique. That does not necessarily involve world-wide enquiries as to available equipment and techniques. Regard must be had to the scarcity of resources and the limited resources available. That is recognised by the acceptance now that Daventry need look no further than the Pyrotec AP300 incinerator. Consideration of Dr Acton's report and the taking of advice from Mr Burrell were measured and sufficient steps in the circumstances. Their technical competence is not in question. There has however been a failure in not pursuing the enquiries in the light of Dr Acton's report. The emission levels in PG5/3 are not, and are not intended necessarily to be, coincident with use of the best available techniques. Neither does the discretion to specify conditions which the "enforcing authority considers appropriate" limit the obligation to achieve the objective when considering the issue in the present case. It confers a discretion to decide how most appropriately to achieve the objective but does not weaken the obligation to ensure that BATNEEC will be used.
62. This case reinforces the need for a properly documented process to be undertaken at the time of the decision and not only when litigation arises. It may well be that further enquiries at the time would have led to a conclusion that the paragraph 17 levels were the correct ones in the circumstances but the evidence does not demonstrate this.
63. In the circumstances, I am not, however, prepared to quash the authorisation or to make a formal declaration. I bear in mind the opinion expressed by Mr Burrell that "a review of the site location provided no reason to suggest why lower emission standards than those authorised need be applied on this site". That opinion, though lacking supporting particulars, is entitled to consideration when deciding whether relief is appropriate. While it does not discharge the BATNEEC obligation, it does permit an approach to the case less drastic than preventing further operations. That is particularly so when there is a statutory obligation to review the conditions of the authorisation no later than September 2002 (section 6(6) of the 1990 Act). The authority are also under a duty to follow developments in technology and techniques for preventing or reducing pollution of the environment due to releases of relevant substances into the air (section 4(9) of the 1990 Act). I am confident that Daventry will in the near future conduct an appropriate review.

Conclusion - Murray

64. In Murray, Derbyshire had to decide whether or not to grant planning permission. The Director had regard to material considerations in his report. Derbyshire accepted the Director's recommendation that the benefits of the proposal outweighed the disbenefits and granted permission. That was a perfectly ordinary and conventional decision unless it breached Article 4 and paragraph 4. As a contribution to achieving the Article 4 objectives it was of little value in circumstances where there was no need for it but that does not render it unlawful. The objective is not an overriding consideration on these facts. A council with the objectives well in mind may still grant a permission for the reasons given in the Director's report. This modest extension of landfill is not so contrary to the achievement of the objective that Derbyshire were obliged to refuse permission. The discretion available to them permitted them to take a broader view than merely to ask which of two possible outcomes contributes more to the objective. The obligation is not overriding in that sense.
65. The existence of the Article 4 obligation does not in my judgment render Derbyshire's decision unlawful. The grant of planning permission in those circumstances is not inconsistent with an adherence to the objective stated in Article 4, its importance and its binding nature. Neither the obligation to take "necessary measures" in Article 4 nor the recognition of the objective in paragraph 4 of Schedule 4 required planning permission to be refused because there is no immediate need for the land or because the relevant decision makes no positive contribution towards meeting the objective.
66. For the reasons given, I would dismiss both appeals.

Lord Justice Robert Walker:

67. I agree.

Mr Justice Laddie:

68. I respectfully agree with Pill LJ both as to the outcome of these appeals and on the construction of the relevant legislation.
69. In relation to the Thornby case, I echo the point made by Pill LJ in paragraph 63 of his judgment. The Council remains under an obligation to comply with BATNEEC. If there is material of which it is already aware, or learns, which shows that this plant can be operated at significantly lower emission levels but without entailing excessive costs, it is obliged to require the operators to run the plant at such levels. In particular, Dr Acton's report does not demonstrate that the levels set in the authorisation comply with BATNEEC. Lower levels may have been possible.

Order: Both appeals dismissed.

Murray v Derbyshire: The respondents to have their costs of the appeal.

Thornby Farms v Daventry: The respondents to have one half of their costs of the appeal.

Permission to appeal to the House of Lords refused.

(Order not part of approved judgment)