COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE DYSON
| THE QUEEN ON THE APPLICATION OF FEAKINS
|- and -
|SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
Mr Kenneth Parker QC and Mr Paul Harris (instructed by Defra Legal Department) for the Respondent
Hearing dates : 14-15 October 2003
Crown Copyright ©
Lord Justice Dyson :
"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."
(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?
"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".
"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".
"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 ."
"Bearing in mind these figures and the evidence now received from DEFRA our client is prepared to put forward an offer pursuant to Part 36 of the Civil Procedure Rules as follows:
1. Our client will accept the sum of £950,000 to allow DEFRA to bury the buried and unburied ash (estimated by DEFRA at 13,500 tonnes) upon Sparum Farm. This sum will be payable in twenty-eight days.".
"If in the future the Environment Agency or other relevant body considers that it is unsafe to leave material where it is buried or DEFRA's assessment of the risk of leaving the material changes, DEFRA will remove at their own cost the material in accordance with any existing current guidance".
"Furthermore, in ordinary civil proceedings the willingness of a claimant to settle an action for a sum less than the full amount claimed is generally consistent with the legal rights and obligations asserted by the claimant. In this case, however, the offer is predicated on the assumption that disposal may be affected at a price other than by incineration, an assumption wholly at odds with the relief sought by the claimant."
"The submissions were made to me upon the basis that this action was being brought in the public's interest, for fear of prosecution, and for fear of being sued. Reading the offer that was made, it seems to me that in fact what was lying behind it was none of those things but the financial interest that the claimant felt in this litigation. On reading that document, I have to say I was a little surprised and a little troubled, and I think it only right that you should know that is my feeling about it".
"I do not say that considerations of a claimant's motive in claiming judicial review could never be relevant to a court's decision whether to refuse relief in its discretion, for example, where the pursuance of the motive in question goes so far beyond the advancement of a collateral purpose as to amount to an abuse of process. The court should, at the very least, be slow to have recourse to that species of conduct as a basis for discretionary refusal of relief".
I would not disagree with these observations.
The First Issue
The Legislative Material
"(10) Certain ruminant issues should be designated as special risk material on the basis of the pathogenesis of TSEs and the epidemiological status of the country or region of origin or residence of the animal concerned. The specified risk material should be removed and disposed of in a manner which avoids any risk to human or animal health ".
"(e) Competent authority: the central authority of a Member State competent to ensure compliance with the requirements of this Regulation or any authority to which that central authority has delegated that competence ".
"A. Concerning the removal of specified risk material
1. Member States shall ensure that the specified risk material designated below is removed and destroyed in accordance with points 6 to 11.
8. Member States shall ensure that specified risk material is removed at:
(b) high-risk processing plants under the supervision of a designated agent appointed by the competent authority. Those establishments shall be approved for that purpose by the competent authority.
Where specified risk material is not removed from dead animals which have not been slaughtered for human consumption, the parts of the body containing specified risk material or the entire body must be treated as specified risk material.
9. Member States shall ensure that all specified risk material is stained with a dye and, as appropriate, marked immediately on removal, and completely destroyed:
(a) by incineration without pre-processing; or
provided that the dye or marking remains detectable, after pre-processing:
(ii) in accordance at least with the standards set out in Annex 1 to Council Decision 1999/534/EC by burial in an approved landfill site.
10. Member States may derogate from the provisions of points 8 and 9 to allow the incineration or burial of specified risk material or entire bodies, without prior staining, or, as appropriate, without removal of the specified risk material, in the circumstances set out in Article 3(2) of Directive 90/667/EEC and by a method which precludes all risk of transmission of a TSE and is approved and verified by the competent authority, in particular where animals have died or have been killed in the context of disease control measures."
"1. This Directive lays down:
(a) the animal and public health requirements for the:
(i) disposal and/or processing of animal waste in order to destroy pathogens which might be present in such materials ".
"1. The following high-risk material must be processed in a high-risk processing plant approved by the Member State in accordance with Article 4(1), or disposed of by burning or burial in accordance with paragraph 2:
2. The competent authorities may where necessary decide that high-risk material must be disposed of by burning or by burial where:
- transport to the nearest high-risk material processing plant of animals infected or suspected of being infected with an epizootic disease is rejected because of the danger of propagation of health risks,
- the animals are infected with or suspected of being infected with a serious disease or contain residues which could constitute a risk to human or animal health and which could survive inadequate heat treatment,
- a wide-spread epizootic disease leads to a lack of capacity at the high-risk material processing plant,
- the animal waste concerned originates from places with difficult access,
- the quantity and the distance to be covered does not justify collecting the waste
An epizootic disease is a disease affecting a large number of animals simultaneously throughout a large area and spreading with great speed. It is common ground that FMD is an epizootic disease.
The first issue explained
"Member States shall, for the purposes of this regulation, define what is meant by the expression " farmer practising farming as his main occupation"."
"In this respect, although, by virtue of the very nature of regulations and of their function in the system of sources of Community law, the provisions of those regulations generally have immediate effect in the national legal systems without it being necessary for the national authorities to adopt measures of application, some of their provisions may nonetheless necessitate, for their implementation, the adoption of measures of application by the Member States.".
"Derogations regarding the disposal of animal by-products.
1. The competent authority may, where necessary, decide that:
(c) animal by-products may be disposed of as waste by burial or burning on site if the competent authority rejects transport to the nearest incineration or processing plant because of the danger of propagation of health risks or because a widespread outbreak of an epizootic disease leads to a lack of capacity at such plants".
The Second Issue
The lack of capacity condition
"114. It seems to me necessary to consider the issue of capacity with a degree of common sense. There is a huge quantity of unburied ash on Sparum Farm (let alone buried ash). The problems of capacity in 2001 seem to me absolutely plain. The interim assessment from the Environment Agency underlines the scale of the problem of coping with the enormous number of carcasses to be disposed of. Other documents referred to above underline it. The information contained in the SEAC report speaks for itself. The fact burning on site was carried out to the extent it was, even where animals were old, was, in part, a recognition of that. It seems to me unrealistic to argue there was capacity in 2001.
115. The situation has no doubt improved by now. However, that there are significant problems of capacity when dealing with this quantity of ash is established by Mr Hickman's evidence. It would be surprising if that were not so. Moreover, if the claimant is right, and all the ash containing residue from carcasses of old cattle referred to by SEAC has to be incinerated, the effect on capacity would be enormous".
" .. Given available incineration capacity, initial indications were that up to 8 10 years might be required to dispose of the estimated 100,000 tonnes of ash currently unburied If all the ash had to be incinerated some would have to be stored for several years which would require double handling given that it could not be safely left where it currently lay. The worker safety risks of multiple movement of ash could be much bigger than the relative risk of different disposal options and needed to be taken into account in any risk assessments. .. However the risks from landfilling were also very small, and . smaller than leaving the ash where it . lay. Where incineration capacity was limited, the risks from greater handling and storage of ash, if it all had to be incinerated, also had to be taken into account in the risk assessments".
"3. The main potential pressures on the environment due to the outbreak have been:
- the disposal of about 6 million animal carcasses, two-thirds from disease control and one-third from welfare cull, amounting to some 600,000 tonnes. Provisional data show that about 14% went to mass burial, 16% to commercial landfills, 22% to rendering, and the remaining 48% was either burnt or buried on farms "
"During the early stage of the outbreak, restrictions on the movement of animals and carcasses limited the use of existing rendering plants. Suitable landfill sites had also not then been identified. This meant that initially, following 1967 practice, most disposals took place on farms by burial and burning on pyres. Mobile incinerators were trialled but could not achieve the throughput required. Later, suitable landfills were identified and ways found of using rendering plants. No carcasses were sent to incineration plants, although the meat and bonemeal from rendering plants were disposed of in this way."
"Incineration capacity is not generally available and we have been asked to put ash behind OTMS casualties and the fallen stock survey (75,000 animals per annum) in the queue. Thus for this option to be exploited we would have to find intermediate storage".
"110. Mr Dean says that, "The two types of incinerator that I believe could reasonably have handled significant quantities of BSE suspect pyre ash in 2001 are municipal waste incinerators and hazardous waste incinerators [3/28/620]." He says that municipal incinerators meet all the requirements for burning pyres ash and that DEFRA "virtually ignored" this "enormous potential incineration capacity [3/28/620]." He refers however to a number of matters that would have to be done before such incinerators could be used. They comprise "regulatory adjustments" to permit such incinerators to bury pyre ash, trial burns which the Environment Agency would almost certainly want, the probable requirement for public consultation before such use and the possible need for the installation of a separate, sealed conveyor system. He says that, "none [of these things] is a logical reason for ignoring the municipal waste sector [3/28/620]." He produces no evidence from any municipal contractor dealing with these matters. He says nothing as to how public consultation might reasonably be expected to proceed, or its time scale or the time scale for trial burns. He suggests that municipal incinerators would have been the "best type of facility to target [3/28/6121]." He criticises Mr Hickman's statement to the effect that municipal incinerators are fully utilised and would have difficulties dealing with pyre ash. He concludes, "that [municipal] incineration capacity [is] capable of destroying the prion and other residual proteins in BSE suspect pyre ash [and] could have been available in 2001 [3/28/621]."
"161. I do not accept Mr Smith's submission. In my view Mr Parker is right when he submits that capacity (both for the purposes of the paragraph 5(2) of the Animals By-Products Order 1991 and the derogation under the Animal Waste Directive) must be construed reasonably and purposively. If an incinerator plant cannot dispose of the high risk material within a reasonable time or without undue delay (to adopt the phraseology of the Order), but has to take it into storage for a long (and somewhat uncertain) time, and at high expense, it cannot be said to have capacity. It may be worth repeating Mr Hickman's evidence in this regard. The time to dispose of the ash would be between one and one and a half years. That would cost more than £11 million. It would involve transporting all the waste to a suitable warehouse, putting it in there, re-packing it into smaller containers and transporting it to Ellesmere Port. The cheapest incinerator would cost more than £6.3 million. The time to dispose of the ash would be between two and five years. It would have to be transported and stored in a facility during that time. Capacity on such time scales was not contemplated by a derogation brought in to deal with the consequences of epizootic disease."
The Risk Condition
"The defendant's proposal is burial in approved, licensed, landfill sites. Such sites, as I understand it, would safely retain the ash. As I have said, even before burial, the expert evidence which I accept and is in reality all one way, suggests the burning has substantially reduced infectivity. Such burial would reduce the already reduced risk to what Dr Huntly, conservatively, has termed "negligible". On any reasonable, sensible and purposive construction of the Regulation, the course of action proposed would avoid "any risk to human or animal health". "All risk of transmission of a TSE" would for the purposes of the Regulations be precluded".
"The destruction calculation on the three buried samples showed a destruction rate of about 99.5% and of the unburied samples of about 99.9%. However, it should be pointed out that the samples were of higher fuel ash content than other pyre ash samples (as shown by the silicon, iron etc results) and there were not as many non-determined amino acids as in many samples. Given this, the length of time after the pyre, the approximations in the calculation and the other points mentioned above, it is probably unwise to assume a destruction rate greater than 95%. This percentage destruction is not unusual for pyres and within the original risk assessment carried out by DNV Consulting Limited".
"Mr Barker has dealt with the effectiveness of these burns. The defendant is not assuming as part of her case a 99% destruction of protein. For present purposes I need say no more".
"1. The most likely outcome is that there were no BSE infected cattle included in the slaughter and disposal of stock at Sparum Farm. However, there is a significant chance (about 1 in 3) that there would have been at least one animal with significant levels of BSE infectivity present.
2. Any BSE infectivity remaining in the ash on the farm was not considered to be a risk to people, as it would be mixed into a large volume of ash and soil and is not in a form that could be readily ingested. However, in some circumstances the materials could potentially pose a risk to cattle grazing on land where the materials were present.
3. A number of options have been proposed to either remove the ash from the site or bury it. If these remedial activities are conducted adequately, it is considered they should be effective in reducing any risk from BSE infectivity to negligible levels".
"The Working Group reached the following conclusions with respect to ash:
- There were no risk-free options. Although high-temperature incineration was the ideal option, SEAC had already accepted that burial on-farm and in landfill represented a low risk with respect to TSEs for disposal of pyre ash. Leaving the ash in situ was likely to be associated with a higher risk than disposal through these alternative routes".
Lord Justice Jonathan Parker
Lord Justice Thorpe