England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
(MR JUSTICE SIMON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd April 2008

Lord Justice Carnwath:

1. This is a renewed application for judicial review. It was refused on the papers originally by Mr Goudie QC sitting as a High Court judge, refused by Simon J and refused in this court on the papers by Dyson LJ.
2. The proposal is for a waste treatment and recycling facility at Stoney Street Industrial Estate in Hereford. It involves a new type of process which will treat 100,000 tons of waste per annum. Mr Wolfe appears on behalf of a group of local people who are concerned about the effects. The planning authority gave planning permission, subject to a whole range of conditions. That followed a detailed officer's report which was considered at a meeting of the planning committee in November 2006. As Mr Wolfe says, the issue which he seeks to raise comes down to a very short point, which turns on the proper approach to the relevant European-based regulations, the Waste Management Licensing Regulations 1994. Paragraph 4(1) of schedule 4 provides:

"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"

3. In Thornby Farms Ltd v Daventry District Council [2002] EWCA Civ 31 this court considered the obligations imposed on planning authorities by those provisions. Pill LJ discussed the meaning of the word "objective". He said that an objective:

"…must always be kept in mind when making a decision even while the decision maker has regard to other material considerations."

But he added:

"…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." (para 53)

4. To get his case off the ground Mr Wolfe has to raise a realistically arguable case that this authority failed to keep in mind the relevant objective. He seeks to do that by referring me to the officer's report, which he says wrongly equates the objective with the achievement of threshold standards. He points in particular to paragraphs 56-57 of the report, where the officer refers to certain tables of acceptable standards with which the project is said to comply. Mr Wolfe says that that is not the same as having regard to the objective, which is to minimise harm to health and to the environment, not simply to comply with such standards.
5. To my mind, however, that does not begin to raise an arguable point of law. It is not surprising that in deciding how to deal with this application the authority took guidance from such thresholds and standards as were available. As I understand, there is no suggestion that they were not appropriate standards. That led them to the conclusion at paragraph 6.59 that:

"The Revised Environmental Statement and subsequently submitted documents cover all the potential contaminants in similar detail and in each case the conclusion is the same -- the anticipated increases in levels of known pollutants in the atmosphere fall well below the concern thresholds set down by the Environment Agency. On this basis, the impact on air quality of the development proposals is demonstrably acceptable for the purposes of determining the planning application."

So it is not simply a question of saying that the standard is complied with, but that the degree of compliance leads to the conclusion that the proposals are "demonstrably acceptable".

6. As a matter of common sense, it seems to me fanciful to suggest that the members of the committee considering this case did not have in mind the relevant objective, of minimisiing harm to human health and the environment. That, indeed, was what the whole debate was about.In my view they were perfectly entitled to take account of the officer's advice on what was "acceptable" as a means towards achieving that objective. At the very least there is no evidence that they failed to keep it in mind , which is what Mr Wolfe would have to show, the burden of proof being on him. So, for the same reasons as those given by the other judges who have considered this, I would reject this application.

Order: Application refused