COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE SULLIVAN
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE BUXTON
THE RIGHT HONOURABLE LORD JUSTICE LAWS
| DERBYSHIRE WASTE LIMITED
|- and -
|- and -
|THE SECRETARY OF STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr David Wolfe (instructed by Public Interest Lawyers) for the Respondent
Mr James Maurici (instructed by the Department for Environment, Food & Rural Affairs) for the Intervener
Crown Copyright ©
Lord Justice Auld :
Law and policy
The Waste Framework Directive
"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 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 "
And Article 5 of the Directive provides:
"1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs. The network must enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move toward that aim individually, taking into account geographical circumstances or the need for specialised installation for certain types of waste.
2. The network must also enable 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."
"1. In order to attain the objectives referred to in Article[s] 3, 4 and 5, the competent authority or authorities referred to in Article 6 shall be required to draw up as soon as possible one or more waste management plans. Such plans shall relate in particular to
- the type, quantity and origin of waste to be recovered or disposed of,
- general technical requirements,
- any special arrangements for particular wastes,
- suitable disposal sites or installations.
Such plans may, for example, cover
- the natural or legal persons empowered to carry out the management of waste,
- the estimated costs of the recovery and disposal operations,
- appropriate measures to encourage rationalisation of the collection, sorting and treatment of waste.
2. Member States shall collaborate as appropriate with the other Member States concerned and the Commission to draw up such plans. They shall notify the Commission thereof.
3. Member States may take the measures necessary to prevent movements of waste, which are not in accordance with their waste management plans. They shall inform the Commission and the Member States of any such measures."
" management plans cannot in all cases be the only factor which determines the exact location of waste disposal sites, inasmuch as the final decision concerning location in some circumstances depends on the relevant rules relating to land-use planning and, in particular, the consultation and decision-making procedures implemented pursuant to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment as amended "
"(1) The Secretary of State shall prepare a statement ("the strategy") concerning his policies in relation to the recovery and disposal of waste in England
"(4) the strategy must include-
(a) a statement of the Secretary of State's policies for attaining the objectives specified in Schedule 2A to this Act;
(b) provisions relating to each of the following -
(i) the type, quantity and origin of waste to be recovered or disposed of;
(ii) general technical requirements; and
(iii) "any special requirements for particular wastes."
"discharge their specified functions, insofar as they relate to the recovery or disposal of waste, [sic] with the relevant objectives.".
It looks as if the draftsman may have mistakenly omitted some words after "waste," possibly "in accordance with" or "in compliance with" with, or more likely, "in line with", the critical words to be used in Article 8(b) of the Landfill Directive. (see paragraph 38 below). That the last were the missing words is suggested by the Department of the Environment in paragraph 1.47 of its Circular 11/94, issued on 19th April 1994, drawing attention to and summarising these provisions of the 1994 Regulations.
"The general duty in paragraph 2(1) means that in exercising their specified functions, authorities must always consider the objectives of the Directive and aim to determine decisions and permit conditions in line with them. "[my emphasis]
It added, in paragraph 1.48 as this Court was to hold in R (Thornby Farms Ltd) v Daventry DC; R (Murray) v Derbyshire CC  EWCA Civ 31;  QB 503, and consistently with the formulation of the European Court in Ministere Public v Traen (Joined Cases 372-374/85)  ECR 2141, and the Lombardia Case (Case C-236/92)  Env LR 281, at paras 12 and 13 - that the duty was objective, but not absolute; it was a duty "to have due regard to the objectives" mentioned in Recital 3 to, and Article 4 of, the Directive.
"The duty imposed by paragraph 2(1) of Schedule 4 does not remove authorities' discretion in exercising their functions. The objectives are not framed in sufficiently precise terms for that. Account should also be taken of the decision of the European Court in the Lombardia case which has determined that Article 4 should be considered as an objective rather than an absolute requirement."
"The United Kingdom does not dispute its alleged failure to meet its obligations. It admits that, during the period under consideration, it failed to adopt and/or notify waste management plans capable of covering the entire territory of the United Kingdom It accepts that the Commission has valid grounds for a declaration of failure to fulfil treaty obligations in the application. It states that competent authorities are engaged in rectifying that situation, by replacing local plans with national strategies, which should constitute the appropriate means of satisfying the requirements of [the Waste Framework Directive] "
" considering the objectives pursued by the obligation laid down in Article 7(1) of [the Waste Framework Directive], it is clear from the very wording of that provision that the obligation is necessary in order for the objectives set out in Articles 3,4 and 5 of that directive to be fully attained (see, by analogy, Case C-387/97 Commission v Greece  ECR O-5057, paragraph 95). Chief among those objectives is the protection of public health and the environment, which is the essence of Community legislation relating to waste. That is the reason why, according to the case-law, a failure to fulfil the obligation to draw up waste management plans must be regarded as serious, even if the failure relates to only a very small part of a Member State's territory, such as a single department or a single area within a valley " [my emphasis]
The Landfill Directive
"6. Around 400 million tonnes of waste are produced in England and Wales each year. Of this waste 106 million tonnes is waste produced by industry, commerce and households. Most of the waste produced in England and Wales goes to landfill. . According to DEFRA about 75 per cent of household waste is landfilled each year
7. Landfill, as a means of waste disposal is at the bottom of the waste hierarchy due to the impacts that landfills have on both the environment and society. FOE's concerns about landfill include particularly the following:
- Land filling materials is a waste of resources as materials that could be re-used or recycled are buried instead.
- Land filling materials also exacerbates climate change, because when materials are buried more fossil fuels are used to replace the materials, through mining, manufacturing and transportation around the glob.
- Landfill sites are also a major source of methane gas which is a very potent greenhouse gas.
- Landfill sites can cause serious pollution of rivers, streams and groundwaters.
- Landfill sites can also create a nuisance to local communities through the generation of traffic, noise, dust, pests, litter and odours.
7. As a result of these problems the Landfill Directive was agreed with the aim of reducing the degree to which Member States rely on landfill as the principal means of waste disposal.
"Member States shall take measures in order that:
(a) the competent authority [namely the Environment Agency] does not issue a landfill permit unless it is satisfied that:
"(i) without prejudice to Article 3(4) and (5), the landfill project complies with all the relevant requirements of this Directive
(b) the landfill project is in line with the relevant waste management plan or plans referred to in Article 7 of [the Waste Framework Directive]. " [my emphasis]."
"(9) Whereas Member States should be able to apply the principles of proximity and self-sufficiency for the elimination of their waste at Community and national level in accordance with [the Waste Framework Directive], whereas the objectives of this Directive must be pursued and clarified through establishment of an adequate, integrated network of disposal plants based on a high level of environmental protection;" [my emphasis]
(18) Whereas because of the particular features of the landfill method of waste disposal, it is necessary to introduce a specific permit procedure for all classes of landfill in accordance with the general licensing requirements already set down in [the Waste Framework Directive] "
"With a view to meeting the requirements of [the Waste Framework Directive], and in particular Articles 3 and 4 thereof, the aim of this Directive is, by way of stringent operational and technical requirements on the waste and landfills, to provide for measures, procedures and guidance to prevent or reduce as far as possible negative effects on the environment from land filling of waste, during the whole life-cycle of the landfill.
Article 3.3, under the heading "Scope", provides:
"Without prejudice to [the Waste Framework Directive] Member States may declare at their own option, that the deposit of non-hazardous waste can be exempted from [certain] provisions in this Directive.
And Article 3.4 provides, under the same heading:
"Without prejudice to [the Waste Framework Directive] Member States may declare at their own option [certain specified provisions] of this Directive not applicable to: [certain types of landfill sites] "
BPEO and Waste Strategy 2000
"A BPEO is the outcome of a systematic and consultative decision-making procedure which emphasises the protection and conservation of the environment across land, air and water. The BPEO procedure establishes, for a given set of objectives, the option that provides the most benefits or the least damage to the environment as a whole, at acceptable costs, in the long term as well as in the short term. "
p 40, under the head "Delivering change" "Decisions on waste management, including decisions on suitable sites and installations for treatment and disposal, should be based on local assessment of the Best Practicable Environmental Option."
p 41, para 4.4 "The right way to treat particular waste streams cannot be determined simply. The objective is to choose the Best Practicable Environmental Option (BPEO) in each case. BPEO varies from product to product, from area to area and from time to time. It requires waste managers to take decisions which minimise damage to the environment as a whole, at acceptable costs, in both the long and the short term. "
p 42, para 4.5 "In determining BPEO we will expect those making decisions to take account of three key considerations:
- the waste hierarchy. Within the hierarchy the Government and the National Assembly do not expect incineration with energy recovery to be considered before opportunities for recycling and composting have been explored.
- the proximity principle requires waste to be disposed of as close to the place of production as possible. This avoids passing the environmental costs of waste management to communities which are not responsible for its generation, and reduces the environmental costs of transporting waste.
- self-sufficiency. The Government believes that waste should not be exported from the UK for disposal. Waste Planning Authorities and the waste management industry should aim, wherever practicable, for regional self-sufficiency in managing waste.
4.7 The Government and the National Assembly now look to key contributors to take action as set out in the following sections."
p 44, para 4.13, setting out the responsibilities of waste planning authorities "Waste Planning Authorities are responsible for identifying suitable sites for waste treatment or disposal installations. The Government and the National Assembly look to the Waste Planning Authorities to:
take full account of the policies described in this strategy, in particular:
the importance of establishing the BPEO
the importance of taking an integrated approach to waste management
the need to move substantially away from landfill towards recycling, composting and energy from waste
in England, to ensure consistency with the quantity of tradable landfill permits available and with statutory performance standards for recycling
implement planning policy guidance fully and quickly PPGs 10 and 11 in England and PPG (Wales) in Wales together with any relevant Regional Planning Guidance
make realistic assessments of likely future requirements for the number, type and siting of waste treatment facilities in their area in the light of this waste strategy, proposals for development (e.g. new housing and commercial centres)
promote informed debate with the public and businesses in their area about the need for waste management facilities and the options available to produce the Best Practicable Environmental Option
work with the Environment Agency to ensure that planning and licence conditions are complementary and effective and to ensure timely decisions, twin tracking where possible.
"The Government and the National Assembly for Wales believe that the most effective waste management decisions can be taken by adopting an integrated approach to waste management. Integrated waste management can be considered to be a number of key elements working in concert, in particular:
- recognising each step in the waste management process as part of a whole decisions should take account of the collection, transport, sorting, processing and recovery or disposal of wastes;
- involvement of all key players an integrated approach to waste management should also define the contributions which all interested parties (which might include waste producers and managers, waste re-processors, waste regulators, waste management planners, community groups, consumers and householders, and Government) can make in the development and achievement of common goals and objectives
- a mixture of waste management options those planning the management of significant quantities of various wastes should avoid over-reliance on a single waste management option. It is unlikely that one approach will represent the Best Practicable Environmental Option (BPEO) for all elements of the waste stream
- formal and informal partnerships especially between those organisations obligated with legal responsibilities for managing waste that they generate or that arises in their areas. In particular this means Waste Collection and Waste Disposal Authorities within a particular area. Local authorities within a region who will also need to take a collective view of the more strategic regional implications of their various policies.
"The following section gives some further detail on determining BPEO. Subsequent sections in this Chapter consider the impact of land use planning, waste management licensing, integrated pollution prevention and control regulation, the Duty of Care, which all have a role to play in determining and implementing optimum waste management solutions across England and Wales. Decisions on how to treat or dispose of waste should be taken locally, taking account of local circumstances and nature of particular waste streams. When taking waste management decisions on suitable treatment options, sites and installations, local authorities must follow the framework set out below. This framework should also act as a guide for other decision-makers, including business waste managers."
"The judgment about which mix of waste management options provides the BPEO can be resolved by analysing the trade-offs between objectives or criteria. This can show the extent to which one objective is sacrificed in order to achieve another (for example, how much costs could rise to reduce the impact on global warming). Formally, this can resolved using decision techniques such multi-media analysis (MCA). These entail the systematic modelling of decision-makers' preferences, to resolve the choice between several options involving a number of objectives or criteria. By aggregating disparate information onto a common index of value they provide a rational basis for classifying the choices."
"The precautionary principle"
" where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation"
"The proximity principle"
waste should generally be disposed of as near to its place of origin as possible "
"The waste hierarchy"
a conceptual framework, which acts as a guide
- The most effective environmental solution is often to reduce the generation of waste reduction
- Products and materials can sometimes be used again for the same or a different purpose re-use
- Value can often be recovered from waste, through recycling, composting or energy recovered
- Only if none of the above offer an appropriate solution should waste be disposed of."
"This strategy is a waste management plan for England and Wales under the EC Waste Framework Directive implemented by Section 44A of the Environmental Protection Act 1990 "
The effect, as I have indicated in paragraph 30 of this judgment, is that paragraph 4(1)(b) of Schedule 4 to the 1994 Regulations should be read in this context as if it read "implementing, so far as material, the Waste Framework Directive in the form of Waste Strategy 2000".
"54A Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
70(2) In dealing with [an application for planning permission] the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material consideration."
The issues on appeal
Issue 1 implementation of Article 8(b) into our domestic law
"98. The 1999 Landfill Directive is concerned with a particular method of waste disposal, landfill, which is at the bottom of the waste hierarchy (that is to say, all other things being equal, it is the least preferred option). The purpose of the Landfill Directive included encouraging the prevention, recycling and recovery of waste and obviating the wasteful use of land (Recital 3), and ensuring that, in future, only safe and controlled landfill operations should be carried out (Recital (2)). In short, it sought to discourage the unnecessary use of landfill as a method of waste disposal.
99. To this end, Article 8 of the Landfill Directive is more prescriptive than the Framework Directive as implemented by paragraphs 2 and 4(1)(b) of the 1994 Regulations. In ordinary language an obligation to be satisfied that a proposed development is 'in line with' a waste management plan, is more stringent than an obligation to keep the objective of implementing the plan, so far as material, in mind. The difference in wording between the two directives, requiring greater weight to be placed upon the waste management plan, is deliberate, having regard to the purposes of the later directive. The words 'in line with' admit of some flexibility. They are perhaps less prescriptive than 'in accordance with'. Moreover, given the complexity of the subject matter and the many factors that may have to be taken into account when taking individual waste disposal decisions, the waste management plan itself may well allow for further degree of flexibility.
"This requirement has already been transposed in the PPC Regulations through the duty placed on the Environment Agency not to issue a permit to any waste management activity unless it has already obtained planning permission."
Issue 2 - Relative rigour of the Waste Framework Directive and the Landfill Directive
"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." [my emphasis]
"54. That accords with the approach of the European Court of Justice had in mind when it used the expression 'due regard' in the Traen case  ECR 2141 and when in Commission of the European Communities v Italian Republic  ECR I-7773, 7824, para 67 the court referred to the 'margin of discretion in assessing the need for such measures' and, at para 68, accepted that the existence of a situation not in conformity with the objective does not necessarily involve a breach of article 4. The above analysis, which substantially agrees with that of Richards J in the Leicestershire County Council case  Env LR 35,57, para 48, is also consistent with the wording of article 249 EC (ex article 189):'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."
"64. 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 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 contributed more to the objective. The obligation is not overriding in that sense."
"100. Both parts 1 and 2 of [Waste Strategy 2000] must be read as a whole. It is true that it is an important source of guidance which must be taken into account by local planning authorities. But on its face it professes to be more than that: it implements the requirement within the Waste Framework Directive as incorporated into law by section 44A of the Environmental Protection Act.
101. Fairly read as a whole, the policies relating to BPEO in [Waste Strategy 2000] are, and are intended to be, more prescriptive than earlier policy guidance.
102. On a fair reading, the Strategy does not simply maintain the status quo in policy terms, leaving local planning authorities free to give such weight as they choose to BPEO. One of the main objectives of the Strategy is to 'deliver change' by placing greater emphasis on the need to choose the BPEO when making waste management decisions.
103. It is true that Chapter 3 in Part 2 of the Strategy applies to waste management decisions by local authorities generally, but contrary to the advice given to members in the Joint Report it applies with no less force to waste planning authorities when they are taking decisions on planning applications for waste disposal. It is for waste planning authorities when deciding whether or not to grant planning permission for landfill proposals to ensure that they are "in line" with Parts 1 and 2 of the Strategy."
106. For these reasons, I conclude that the [Council's] approach to the status of the policies relating to BPEO in Waste Strategy 2000 was erroneous in principle because the Joint Report effectively relegated BPEO to a material consideration to be taken into account but to be given such weight as the [Council] thought fit. Such an approach did not accord with Pill LJ's pre-Landfill Directive and Waste Strategy 2000 dicta in [Thornby]. There was no recognition of the [Council's] duty, post the publication of the Strategy and the implementation of the Landfill Directive, not to grant planning permission unless the proposed development was 'in line with' the policies relating to BPEO in Waste Management 2000."
"The BPEO methodology (as elaborated in WS 2000, the UK national plan under Article 7 of the Waste Framework Directive) is the key way in which the UK gives effect to its obligations to seek to progress waste decisions up the waste hierarchy by ensuring that no particular waste decision is made unless it can be demonstrated that options higher up the waste hierarchy are not practicable."
" in contrast to what is expressly laid down in respect of the categories of waste listed in Article 2(1)[(1)] of [the] Directive , the categories of waste which are the subject of individual directives under Article 2(2) remain subject overall to the Directive, even if individual rules derogating from its provisions may be adopted on certain aspects and supplementary rules may be adopted with a view to more extensive harmonisation of the management of the waste in question. "
" management plans cannot in all cases be the only factor which determines the exact location of waste disposal sites, inasmuch as the final decision in some circumstances depends on the relevant rules relating to land-use planning and, in particular, the consultation and decision-making procedures implemented pursuant to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment , or Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control "
"That provision [i.e. Article 4] does not 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. Their freedom must, however, be exercised having due regard to the objectives mentioned in the third preamble to the Directive and in article 4 thereof, namely the protection of human health and of the environment." [my emphasis]
" Paragraph 2(1) of Schedule 4 to the 1994 Regulations 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 Waste Framework Directive and in the 1994 Regulations."
" . 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 . 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 is 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 be cause 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."
Issue 3 whether the Council's consideration of the BPEO was flawed in any event
"Provision will be made for sufficient sites and facilities to cater for the waste management needs of Derbyshire, having regard to the national, regional and local strategies for waste management. Particular account will be taken of:
1) the need to pursue objectives which further the aim of achieving sustainable waste management, such as to find the Best Practicable Environmental Option for individual waste streams;
2) the aim of minimising the overall volume of waste going to landfill disposal and maximising the recovery of value from waste; and
3) the location and technical suitability of sites."
" Whilst the application site is particularly accessible from the north-east of the County, the site also has good connection to the M1 Motorway and A38 trunk route to serve the wider needs of Derbyshire and I am mindful of the imminent shortage of landfill space in the south-east of the county. Thus, I consider that land-filling at this site would be in accordance with the key considerations Proximity Principle and Regional Self-Sufficiency and technically suitable for land-filling as proposed, thereby providing a Best Practicable Environmental Option for the disposal of waste with [criterion] 1 of [Waste Management Policy 1 of the Structure Plan]"
He also concluded that it satisfied the other two criteria of need and suitable location respectively and, moreover, expressed the firm view that use of the site for landfill was the only way it which it could be satisfactorily restored.
"With respect to the Structure Plan Waste Disposal Policy 2: Waste as a Positive Resource, the proposal provides a means of reclaiming the last remaining area of dereliction at the former colliery. I think it unlikely that other methods of reclaiming the site without importing waste, would produce a satisfactory result in landscape terms "
"Notwithstanding the availability of alternative sites both currently, and which may become available in the north-east of the County within the Waste Management Plan period , I consider that there are compelling reasons to accept the infilling/land raising/restoration of the site as submitted to restore the site satisfactorily and conserve and enhance its ecology thereby providing a significant benefit. I consider that there is no realistic likelihood of an appropriate restoration being achieved without the importation of waste in the manner proposed."
Those sentiments were touched on orally in the Committee's meeting, as the following part of the minutes records:
"Members, having considered the report and heard the comments made and explanations provided by the officers, generally considered that there were not any substantial planning grounds for refusal of the application. It was felt that the site was in need of improvement but that it would be unlikely to regenerate in a satisfactory manner on its own. An officer explained that satisfactory restoration without use of waste was a technical possibility but was not feasible except at great expense and that no such alternative scheme was likely to be promoted. "
"The report to Committee of 11 March [i.e. the Report] explained the concept of BPEO (i.e. the option that provides the most benefits at the least damage to the environment as a whole, at acceptable costs, in the long term as well as the short term), and analysed it in the context of this proposal.
The challenge [i.e. Mr Blewett's judicial review claim] essentially alleges that the Council's treatment of BPEO was insufficient. In particular, the level of detail that should be taken into account in determining a planning application, including the lack of identification of the specific BPEO for particular waste streams.
The Courts have held that in appropriate cases BPEO is an objective to which planning authorities should have regard as a material consideration. It is for local planning authorities to decide how much weight to attach to it. In this case the waste hierarchy and the proximity principle were considered and reference was made to the relevant Planning Policy guidance, Waste Strategy 2000, Regional Planning Guidance and the Derbyshire Waste Management Strategy. The ES [environmental statement] made reference to the applicant's own waste management strategy and proposed recycling rates. In particular, the report identified the waste hierarchy, the proximity principle and self-sufficiency as considerations. It addressed the issues of the targets for reducing, re-using and recovering value from waste and the requirements for landfill capacity for the residual wastes. In the context of Structure Plan policies it identified the use of waste as a positive resource to reclaim this site".
"107. But the [Council's] consideration of BPEO was seriously flawed, regardless of the weight that should have been attributed to the policies in the strategy. Mr Evans [counsel for the Council] and Mr Barrett [counsel for Derbyshire Waste] pointed to a number of places in the Report where BPEO was mentioned. I accept that there are frequent references to BPEO in the Report, but merely repeating the acronym, however frequently, and whether or not accompanied by the Royal Commission's definition, is not an adequate consideration of the issues raised by BPEO. If a material consideration is to be taken into account it must first be properly understood. What matters is not the letters BPEO, but the analysis of the issues raised by the concept: the application of the three key elements the waste hierarchy, the proximity principle and self-sufficiency to the particular waste stream(s) which the development is intended to serve. So long as there was both a local (in the North-East Derbyshire Sub-Area) and county-wide shortage of capacity, it was relatively easy to see how the proximity principle might be met. It would appear that this must have been the assumption underlying the environmental statement, since it contained no discussion of BPEO whatsoever. However, once it had been concluded that there was capacity both locally and county-wide up to 2011, the question whether this particular application site would be the BPEO for meeting a shortage of landfill space in the south-east of the county had to be addressed in terms of the three key considerations, including the proximity principle. Beyond referring to the application site's good road connections, and stating that the Director was 'mindful of the imminent shortage of landfill space' in the south-east of the county, the report did not address this issue at all. It may well be that this is why the Director did not feel able to conclude that the site was the BPEO in accordance with criterion 1 in the Waste Management Policy in the Structure Plan, merely that it was 'a BPEO for the disposal of waste'.
"108. I accept that officers' reports should not be read in a legalistic or pedantic manner. If there had been a reasonable attempt to grapple with the issues raised by BPEO in the light of local spare landfill capacity and capacity county-wide for the structure plan period, the use of the indefinite rather than the definite article might have been of little consequence, and reference to it dismissed as mere pedantry. Its use in this Report is, in my judgment, a reflection of the [Council's] muddled approach to the BPEO issue. Unfortunately, the muddle was compounded, rather than clarified, by the advice given to members in the Joint Report as to the weight that they ought to give the BPEO. Given the importance attached to choosing the BPEO for a particular waste stream in Waste Strategy 2000, this was a significant flaw in the decision-making process.".
Issue 4 the Court's discretion
"The [Council's] failure to deal adequately with BPO, whether it is regarded as a breach of its obligation to ensure that the grant of planning permission was in line with Waste Strategy 2000, or whether it is viewed more simply as a failure to have regard to a material consideration, does not mean that the planning permission must be quashed. The court has a discretion and I have anxiously considered whether it would be right in all the circumstances to exercise that discretion, given the two-fold justification for the development in the environmental statement to reclaim a despoiled site and to facilitate the disposal of wastes arising in the area. It is clear from the Report and from the Minutes of the Meeting on 11th March 2002 that the Director placed considerable weight upon the first justification: 'there was no realistic likelihood of an appropriate restoration being achieved without the importation of waste in the manner proposed'. However, it was for members to determine the application. The minutes record that they 'generally considered that there were not any substantial planning grounds for refusal of the application. It was felt that that the site was in need of improvement but that it would be unlikely to regenerate in a satisfactory manner on its own'.
110. Given the manner in which BPEO was addressed in the Report and Joint Report it is not surprising that members concluded that there were no substantial planning grounds for refusing planning permission. Since there had been no proper BPEO analysis it is not possible to say whether there would or would not have been a substantial planning objection on this ground, for example because of failure to comply with the proximity principle. Thus it is simply not possible to tell what members' attitudes might have been if there had been a proper analysis of the BPEO issue, including both the weight to be given to, and the content of, the policies relating to BPEO in Waste Strategy 2000. In particular, Waste Management Policy 2 in the Structure Plan gives preference to waste disposal proposals that assist in the reclamation of derelict or despoiled land, 'where waste disposal activities are justified' In deciding whether waste disposal activities are justified a BPEO assessment is, for the reasons set out above, a most material consideration."
"A court is not entitled retrospectively to dispense with the requirement of an EIA [environmental impact assessment introduced to implement a Directive] on the ground that the outcome would have been the same or that the local planning authority or the Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues. It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found to be ultra vires: see Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P & CR 343, 353. ."
Lord Justice Buxton:
Lord Justice Laws:
ORDER: Appeal dismissed; the appellant to pay the respondent's costs to be assessed if not agreed and that there be detailed assessment of the Legal Service Commission funding of the respondent's residual costs.