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R V DAVENTRY DISTRICT COUNCIL EX PARTE THORNBY FARMS [2000] EWHC Admin 382 (28th July, 2000)

Case No: CO/4753/1998

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
DATE: 28 JULY 2000

HEARD BE F O R E :
THE HON. MR JUSTICE COLLINS

	REGINA
	V
	DAVENTRY DISTRICT COUNCIL
	EX PARTE
	THORNBY FARMS

- - - - - - - - - -
(TRANSCRIPT OF THE HANDED DOWN JUDGMENT OF
SMITH BERNAL REPORTING LIMITED, 190 FLEET STREET
LONDON EC4A 2AG
TEL NO: 020 7421 4040, FAX NO: 020 7831 8838
OFFICIAL SHORTHAND WRITERS TO THE COURT)
- - - - - - - - - -

MR. D. WOLFE	FOR THE APPLICANTS

MR. S. HOCKMAN Q.C.	FOR THE IST RESPONDENT
MR. P. HARRISON
MR. D. PARK	FOR THE 2ND RESPONDENT

JUDGMENT
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
MR JUSTICE COLLINS:
1. Time Right Ltd. operates incinerators at a site in Guilsborough, Northamptonshire which are used to dispose of the carcasses of animals. These carcasses come from veterinary practices and, for example, the Peoples Dispensary for Sick Animals and so are in the main pets which have died whether from natural causes or otherwise. In addition, Time Right operate at the site what is known as a waste transfer station. This is separate from any incineration process and involves the collection on site and subsequent transfer of clinical waste. This is not incinerated; it is despatched elsewhere for disposal. The clinical waste concerned is what is known as sharps, that is to say, syringes, needles or other sharp instruments used in treating sick animals together with swabs, dressings and other pharmaceutical products and tissue, blood and other material which is likely to be hazardous to humans.
2. The respondent Council is the authority responsible for controlling the activities of Time Right under the Environmental Protection Act 1990 (the 1990 Act). The applicants farm land adjoining West Lodge Farm and are likely to be affected by any pollution emanating from the incineration processes carried out by Time Right. In those circumstances, it is accepted that they have locus standi to bring these proceedings.
3. The proceedings themselves have been somewhat protracted. They challenge an authorisation granted by the respondent Council on 11 September 1998. They were launched on 1 December 1998. On 15 December 1998 Dyson J ordered that the application be renewed orally on notice to the respondent council and Time Right and on 18 May 1999 following a hearing which lasted all day Turner J granted leave. All three parties were represented at that hearing. I am bound to say that I think that the procedure adopted was unfortunate. It has served to delay the hearing of the substantive application and has undoubtedly increased the costs. While there are many cases in which an oral hearing is necessary, a lengthy hearing is usually inconsistent with the determination whether there is an arguable case so that leave or permission should be granted. Furthermore, in my view interested parties such as Time Right should very rarely be allowed to appear at such hearings. Sometimes, a case can be dealt with at the permission stage because, for example, the matter at issue needs an immediate decision and the court may be able in effect to determine the issue. But normally lengthy hearings should be avoided.
4. Despite the lengthy hearing before Turner J which resulted in an unqualified order that leave be granted, the grounds relied on in argument by the applicants are not those in the 86A. Mr. Hockman, Q.C. on behalf of the council raised a somewhat half-hearted objection which I noted but has not in the end sought to argue that I should not decide the case on the basis of the arguments put before me. This case involves air pollution. Mr. Wolfe has submitted first that the council has misunderstood the law and so has applied pollution limits which are inappropriate because insufficiently rigorous. In addition, this error has led the council to fail to have regard to the relevant statutory objectives. In the alternative, he submits that, if the council has considered the correct limits, it has not applied them properly and has been content to permit levels of pollution contained in guidance issued by the Secretary of State when it should have required the maintenance of lower levels. The first ground depends on a correct interpretation of the applicable law and does not involve any in depth consideration of factual material. The second ground involves some consideration of what the council has done and the approach that it has adopted.
5. Time Right commenced its operations at the site in 1990 when it obtained planning permission to enable it to operate an animal crematorium for the disposal of domestic animal carcasses only. In 1993 the first authorisation under the 1990 Act was granted following an application made in January 1992. This authorisation was subject to a number of conditions and related to the incinerator then in use namely a Pathpak 1000 incinerator. In December 1996 the authorisation was varied to cover the use of the Pathpak 1000, a Pyrotec 300 and an Ellendale. The capacities of each were not to exceed 7 loads of 600 Kg in a 22 hour cycle, 300 Kg per hour and 45 Kg per hour respectively. The conditions included a restriction on the emission of smoke from the Pathpak 1000 which had to be upgraded by October 1997. This was largely because there had been a number of complaints from neighbours including the applicants about emissions of smoke. This is, of course, the most obvious sign that pollution is taking place and the nature of what was being incinerated understandably led to concerns that the pollution might be injurious to health.
6. It became clear that the Pathpak 1000 could not be upgraded to meet the requirements of the authorisation. Accordingly, Time Right decided to replace it with a more modern incinerator known as a Pyrotec AP300. In October 1996 the respondents sought advice from the National Fuel Efficiency Service (NIFES), a body originally set up by the Government to provide a consultancy service on the efficient use of energy. Thereafter Mr. Walsh, the Council's principal environmental health officer, consulted with NIFES in considering the application which has led to this challenge. That application was eventually, following discussions between Mr. Walsh, Mr. Burrell on behalf of NIFES and Dr. Acton of a company called Alderley Consulting Group on behalf of Time Right (Alderley provides consulting services in relation to all aspects of environmental pollution control and Dr. Acton is its technical adviser) granted on 11 September 1998. The authorisation was limited to the two Pyrotec incinerators (the 300 and the AP300), the capacity of each not to exceed 300 Kg per hour. In addition, two small incinerators with a capacity not to exceed 25 Kg per hour each were permitted. Thus the maximum permitted throughput from all the incinerators on site was not to exceed 650 Kg per hour. Evidence from Time Right establishes that about 40 to 50 tonnes of animal carcasses are incinerated each week.
7. The authorisation contained within it limits to the concentration of pollutants which could lawfully be emitted from the Pyrotec incinerators. Those limits are expressed in terms of milligrams per cubic metre. Condition 7.4 of the authorisation reads as follows;-

"Emission	Concentration
Total particulate matter	100 mg/m³
Hydrogen chloride (excl particulate matter)	100 mg/m³
Carbon Monoxide	100 mg/m³as an hourly average; and 150 mg/m³ of 95% of all measurements determined as averages over 10 minute periods, taken in any 24 hour period.
Sulphur Dioxide	300 mg/m³
Organic compounds excl particulate matter	20 mg/m³ (express as total carbon)
All pollutant concentrations expressed at reference conditions 273K, 101.3 kPa, 11% oxygen dry gas".

These limits replicate exactly those set out in the Guidance issued by the Secretary of State in August 1995 (PG5/3((95)). That is the guidance which the council used. The applicants contend that that was the wrong guidance and that the one which should have been used (PG5/1(95)) set much lower limits. Thus particulate matter is 30 mg/m³, hydrogen chloride 30 mg/m³ and carbon monoxide 50 mg/m³ daily average. There are extra limits for other substances.
8. In addition to the incinerators Time Right operates a waste transfer station. This was the subject of an application for planning permission which was refused by Northamptonshire County Council. This led to an appeal against the refusal and a public enquiry was held from 30 March to 1 April 1999. At that appeal, one of the issues raised was that the clinical waste would be included in the material incinerated. There was, it was said, a risk that such contamination would take place. While it was conceded that some animals might have died of disease, it was for the vets to decide whether there was a sufficient degree of hazard to humans to require their carcasses to be bagged and dealt with as clinical waste. Naturally, it could not be guaranteed that every carcass which ought to be regarded as clinical waste would be or that there would never be a needle or a swab left in a carcass. However, there would not be more than minimal contamination since the system in use to ensure that the carcasses for incineration and the clinical waste for transfer were kept separate worked satisfactorily. The inspector concluded in his decision letter dated 13 May 1999 by which he granted planning permission subject to conditions that, provided the clinical waste was dealt with as proposed, there was no direct evidence that it would be a significant pollution risk and that there were "no grounds to suspect that clinical waste would be incinerated". In those circumstances, Mr. Wolfe has recognised very properly that he cannot pursue the issue of possible incineration of clinical waste coming into the waste transfer station and has not done so.
9 . It is apparent from what I have set out that both Time Right and the council in the person of Mr. Walsh have taken very seriously the question of control of pollution. It was not suggested before me and rightly so that either party had not been aware of and tried to meet their responsibilities. The applicants' contention that the more rigorous requirements of the Guidance PG5/1(95) should have been applied would result in a cost to Time Right of about £1,500,000 to upgrade the incinerators.
10. I shall deal first with the argument that the wrong guidance was used. This is coupled with the further argument that the council failed to give effect to the objectives under the Waste Management Licensing Regulations 1994. Those objectives are not relevant, submits Mr. Hockman, because those Regulations do not apply to the processes being carried out by Time Right.
11. The resolution of those arguments depends upon a close examination of various European Directives and of domestic regulations, most of which have been enacted to put those Directives into effect. That examination involves a difficult and somewhat tortuous journey. I have been much assisted by the arguments of counsel. I indicated to Mr. Wolfe that he would have an uphill struggle to persuade me, having heard Mr. Hockman's submissions, that his arguments should prevail. He set about climbing the hill with skill and perseverance. That he has not in the end succeeded is no reflection on his sustained advocacy.
12. The central question is whether the carcasses are to be regarded as clinical waste within the meaning of that expression in the relevant legislation. If they are, the stricter controls will apply and the objectives referred to will be relevant; furthermore, the council will not have approached its task correctly. The starting point is the 1990 Act. Part I is headed "Integrated pollution control and air pollution control by local authorities". Section 2 enables the Secretary of State to make regulations prescribing processes which need authorisations under the Act and any regulations must inter alia designate such processes as ones for central or local control (s.2(4)). The relevant regulations are the Environmental Protection (Prescribed Processes and Substances) Regulations 1991. Schedule 1 divides the processes into Part A and Part B. Part A processes are designated for central and Part B for local control (Reg:5). The relevant process is in Schedule 1 under Chapter 5 which is headed `incineration' and in Section 5.1 Part B one finds;-
"(a) the destruction by burning in an incinerator other than an exempt incinerator of any waste, including animal remains, except where related to a Part A process,
(b) the incineration of human remains".
An `exempt incinerator' is one which is designed to incinerate waste at a rate of not more than 50 Kgs per hour. However, it is not to be regarded as exempt if it is employed to incinerate clinical waste which is defined as meaning "waste other than wastes consisting wholly of animal remains which falls within" the relevant definitions in the Controlled Waste Regulations 1992. In addition, Part A includes the incineration of "any waste including animal remains otherwise than by a process related to and carried on as part of a Part B process, on premises where there is plant designed to incinerate such waste at a rate of one tonne or more per hour". All that, it is common ground, means that the incineration of animal remains by Time Right is within Part B and so is designated for local control by the council. This has important consequences since s.4(3) of the 1990 Act provides, so far as material;-
".... those functions, in their application to prescribed processes designated for local control shall be ....... exercisable for the purposes of preventing or minimising pollution of the environment due to the release of substances into the air (but not into any other environmental medium".
Thus only air pollution is material. Further, by s.4(9), the council has the duty to follow such developments in technology and techniques for preventing or reducing pollution of the environment due to the releases of substances from prescribed processes as concern releases into the air of substances from prescribed processes designated for local control.
13. Section 7 of the 1990 Act deals with conditions which may or must be included in authorisations and how they are to be decided upon. S.7(1) reads;-
"7(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 1 of the Health and Safety at Work etc Act 1974).
S.7(2) specifies the objectives to achieve which conditions are to be imposed. It reads;-
"(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 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;
(d) compliance with any requirements applicable to the grant of authorisations specified by or under a plan made by the Secretary of State under section 3(5) above".
This introduces the expression `best available techniques not entailing excessive cost' known by the acronym BATNEEC. This reflects the relevant European Directive which uses the same expression with the substitution of `technology' for `techniques'. S.7(3) enables the Secretary of State to direct that particular conditions are imposed and s.7(4) implies in every authorisation a general condition that the person carrying on the process must use BATNEEC in order to prevent or minimise the release of pollutants into an environmental medium: in this case, that would be into the air (see s.7(5)). S.7(6) provides that the implied obligation under s.7(4) `shall not apply in relation to any aspect of the process in question which is regulated by a condition imposed under' s.7(1). This means that, for example, the condition limiting the amounts of the various substances which can be emitted cannot be enforced more rigorously and at a more restrictive level by reliance on s.7(4). S.7(10) extends BATNEEC beyond technical means and technology to include "the number, qualifications, training and supervision of persons employed in the process and the design, construction, lay out and maintenance of the buildings in which it is carried on". Thus it is necessary not only to have the right machinery in place but to ensure that there are enough qualified and supervised staff working in properly maintained buildings so that the machinery will achieve the results required of it. Finally, s.7(11) requires local authorities to "have regard to any guidance issued to them by the Secretary of State for the purposes of the application of" s.7(2) to (7) "as to the techniques and environmental options that are appropriate for any description of prescribed process".
14 .A general guidance note was issued by the Secretary of State as GG 1(91) in April 1991. This was stated not to constitute guidance under s.7(11) of the 1990 Act and should not be used as an aid to construction of the Act. Guidance notes under s.7(11) would be issued for all the main categories of processes prescribed for local authority control. In paragraph 21 (one of a series of paragraphs explaining the meaning of BATNEEC) reference is made to the EC Air Framework Directive (84/360/EEC) and the EC Dangerous Substances Directive (76/360/EC) and the so-called `daughter' directives which follow them. In those, BATNEEC is to be found. It is not, I think, necessary to set out the detailed provisions of the guidance: it is largely common sense. I note that `best' means the most effective in preventing, minimising or rendering harmless polluting emissions and NEEC involves a balancing of the cost of the techniques against what is needed to reduce pollution to a level which will properly protect the environment. Paragraph 32 notes that BATNEEC may be expressed in terms of emission standards. I should set out the paragraph in full. It reads:-
"Clearly BATNEEC may be expressed in technological terms - i.e. a requirement to employ specified hardware. It may also be expressed in terms of emission standards. Having identified the best techniques and the emission values they are capable of producing, it will be possible to express BATNEEC as a performance standard: that is, a technique which produces emission standards of X or better where X are the values yielded by the identified BATNEEC. The process guidance notes generally express BATNEEC in these terms so as not to constrain the development of cleaner techniques or to restrict unduly operators' choice of means to achieve a given standard".
15. There are two relevant guidance notes issued under s.7(11). The council has applied PG 5/3(95) (so identified since it is guidance relating to incineration, a process dealt with in Chapter 5 of Schedule 1 to the 1991 Regulations). It is headed;-
"Secretary of State's Guidance - Animal Remains Incineration - Processes under 1 tonne an hour".
The point is made that the guidance reflects the techniques available at the time of publication. Further, it cannot take into account individual process characteristics, in particular location, which may influence the nature of the conditions to be included in any authorisation. Paragraphs 2 and 3 define the scope of the guidance note and read;-
"2. This Note refers to animal remains incineration processes on premises where there is plant designed to incinerate less than 1 tonne of waste per hour but more than 50kgs per hour. Subject to Clause 3 below, these processes include animal remains incinerators at research establishments and farms, slaughterhouses, zoos, animal crematoria, incinerators for disposal of infectious or diseased animal remains, and incinerators for disposal of animal remains arising from veterinary practices.
3. This Note also apples where excreta and natural non-synthetic bedding waste are co-incinerated with animal remains and to the incineration of packaging in which he animal remains are contained. This Note does not apply to clinical waste incineration processes less than one tonne per hour. PG5/1(95) should be applied if the waste being incinerated is comprised of animal remains and more than incidental amounts of clinical waste".
Paragraph 17 sets out the control limits in terms of mg/m³ to which I have already referred and paragraph 18 reads;-
"Where a veterinary inspector certifies that any animal is suspected to have died from anthrax, and where an incinerator which complies with the full standards of this Note is unavailable to enable urgent incineration of the carcass, the incinerator used should meet the highest possible air pollution control standards. There will be a concern to destroy anthrax spores in these cases, but such matters are the responsibility of the Health and Safety Executive and therefore not for consideration within the scope of this Note".
There is a footnote to the reference to clinical waste in paragraph 3. It refers to the definitions in the 1991 Regulations and the Controlled Waste Regulations 1992. It reads;-
"Clinical Waste is defined in SI 1991 / 472, as amended:
"clinical waste" means (waste other than waste consisting wholly of animal remains) which falls within sub-paragraph (a) or (b) of the definition of such waste in paragraph (2) of regulation 1 of the Controlled Waste Regulations 1992 [SI 1992 / 588] (or would fall within one of those sub-paragraphs but for paragraph (4) of that regulation)".
The definition of clinical waste in regulation 1(2)(a) and (b) of SI 1992 / 588 is:
"(a) any waste which consists wholly or partly of human or animal tissue, blood or other bodily 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".
"Clinical Waste" will also be taken to include packaging associated and incinerated with the clinical waste as defined above.
The incineration of much clinical waste will come within the scope of EC Directive 94/67/EC on the incineration of hazardous waste, details of which are contained in PG5/1(95)".
Mr. Wolfe submits that that guidance, particularly the last sentence of paragraph 3, is misleading. Animal remains themselves can and in the circumstances of this case will be likely to constitute clinical waste since the animals may well have died from diseases which make the emissions when they are incinerated and make the carcasses themselves hazardous to humans. Thus PG 5/1(95), also issued in August 1995, should apply. This is headed
"Secretary of State's Guidance Clinical Waste Incineration Processes under 1 tonne an hour".
After citing the definitions of clinical waste which I have already set out, in Paragraph 6 the note states;-
"The incineration of animal remains (including excreta) is the subject of a separate note - PG 5/1(95). The provisions of PG 5/1(95), however, should be complied with where animal remains and more than incidental amounts of clinical waste are co-incinerated".
This falls into the same error, submits Mr. Wolfe. It fails to recognise that the European Directives define clinical waste in such a way as to include animal remains which themselves may constitute a hazard to humans so that the distinction drawn in the Guidance Notes is inappropriate.
16. I must therefore turn to the European Directives. Mr. Wolfe argues that, as he puts it, the `overarching classification regime' is contained in Directive 91/156/EEC (the Waste Framework Directive). This among other things is intended to provide a common terminology and definition of waste. Article 2 is important. This excludes from the scope of the Directive "where they are already covered by other legislation... animal carcasses and the following agricultural wastes: faecal matter and other natural, non-dangerous substances used in farming". Annex 1 sets out the various categories of waste. There are 15 specified and a catchall at 16 which specifies `any materials, substances or products which are not .......in the above categories'. Thus unless exempted by Article 2 because covered by some other directive, animal remains can be within the scope of this directive. If so, it is `Directive Waste' within the meaning of SI 1992 / 588.
17. The Waste Framework Directive refers to disposal and recovery of waste. These are kept separate. Each is defined in Article 1. `Disposal' is any operation referred to in Annex IIA and `Recovery' is any operation referred to in Annex IIB. Annex IIA is headed:-
"This Annex is intended to list disposal operations such as they occur in practice. In accordance with Article 4, waste must be disposed of without endangering human health and without the use of processes or methods likely to harm the environment".
There follows a list of methods of disposal No.10 of which is "incineration on land". Annex IIB has an identical instruction in relation to recovery and then lists various operations including reclamation of organic substances. The Directive has been translated into domestic terms by the Waste Management Licensing Regulations 1994. These define `Directive Waste' as;-
"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 but with the exception of anything excluded from the scope of the Directive [i.e. the Waste Framework Directive] by Article 2 of the Directive.......".
Schedule 4 is given effect by Regulation 19. After identifying the `competent authorities', that is those responsible for granting authorisation and imposing the necessary controls, Paragraph 4 of Schedule 4 specifies the relevant objectives. Paragraph 4(1) and (2) read as follows;-
"(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 objectives 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".
It will immediately be apparent that there is no material difference in practical terms between the objectives in Paragraph 4 and those in Section 7 of the 1990 Act. Mr. Wolfe argues that Paragraph 4(1) is not subject to BATNEEC and therefore is somehow more rigorous. That seems to me to be an impossible construction. The purpose of sub-paragraph 4(1) is to enjoin the competent authorities to ensure that positively harmful techniques are not used. That one hopes they would always do. But BATNEEC comes in because it is recognised that any system of disposal is bound to have a potential for harm and that that potential must be reduced or eliminated as far as possible. Mr. Wolfe's construction would effectively make waste disposal almost impossible and leave little if any room for BATNEEC. In reality, I do not think that there is really any real difference in the objectives which are applicable whether or not the 1994 Regulation are applicable.
18. I note in this regard Paragraph 8 of the Schedule which modifies Part I of the 1990 Act to allow an enforcing authority to `exercise its functions under that Part for the purpose of achieving the relevant objectives'. While that may widen the objectives in accordance with Paragraph 4(1), it does not in my judgment make any practical difference unless an authority is so neglecting its responsibilities as not to seek to avoid danger to health, harm to the environment or a nuisance. That as it seems to me is clearly not the position here. Parts II, III and IV of Schedule 4 reproduce the various definitions in Annexes to the Directive.
19. One therefore must see whether there is within the meaning of Article 2 of the Directive other legislation covering animal carcasses. Mr. Hockman relies on two in particular. First, there is the Animal Waste Directive (90/667/EEC). It is to be noted that in its Circular 11/94, the Department of the Environment stated that "the disposal and recovery of animal carcasses is already covered by the Animal Waste Directive (90/667/EEC) and the Animal By-Products Order, and so any such waste is in the Department's view excluded from the scope of the Directive and the definition of Directive Waste". This, submits Mr. Wolfe, is wrong since the Animal waste Directive deals only with recovery and not with disposal. The Directive itself is introduced as;-
"laying down the veterinary rules for the disposal and processing of animal waste, for its placing on the market and for the prevention of pathogens in feedstuffs of animal or fish origin ...".
It is concerned to ensure, as the preambles show, that incorrect disposal may spread pathogens and that harmonised rules should be laid down for processing. Article 1 states that the 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..".
Article 2 contains the relevant definitions. `Animal waste' means `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 then divided into `high-risk material' (that which is suspected of presenting serious health risks to animals or man) and `low-risk material' (that which does not present serious risks of spreading communicable diseases to animals or man). Article 3 requires that high-risk material is processed in a high-risk processing plant "or disposed of by burning or burial in accordance with paragraph 2". There is then a list of the relevant material which covers farm animals. Paragraph (d) includes animal waste `originating from animals which show during the veterinary inspection carried out at the time of slaughtering clinical signs of disease communicable to man or other animals'. Paragraph 2 requires disposal by burning or burial (following sprinkling with disinfectant if needed) where taking to a processing plant would be dangerous or pointless.
20. The Animal Waste Directive is clearly aimed at farmed animals or fish which are intended to be processed for other than human consumption. No doubt it owes its present form to such problems as BSE. It is not in my judgment apt or intended to cover the disposal of pets. However, it is noteworthy that it does not require any particular quality of incineration even for high-risk material and certainly does not categorise such material as clinical waste. It is only concerned with disposal as an alternative to processing. Accordingly, it does not constitute, so far as the carcasses in issue in these proceedings are concerned, other legislation covering the disposal of those animal carcasses. Thus I agree with Mr. Wolfe that the Department's view in its circular is wrong.
21. However, that is not the only relevant Directive. Mr. Hockman referred me to 84/360/EEC and Mr. Wolfe did not submit that it was not applicable to the incineration of waste. It is aimed at preventing and/or reducing pollution from industrial plants. It includes within it waste disposal by incineration (Annex 1(5)). Paragraph 5.1 covers dangerous or toxic waste and Paragraph 5.2 other solid or liquid waste. Article 4 applies BATNEEC and a regime of emission limit values. It does not refer specifically to animal carcasses, but they would be covered by the references in Annex 1(5) to the various forms of waste.
22. Mr. Wolfe for his part referred to the Hazardous Waste Directive (91/689/EEC). It is to be noted that this Directive is applied domestically by Regulations made under Part II of the 1990 Act. It adopts in Article 1(3) the definition of waste contained in the Waste Framework Directive. Hazardous waste by Article 1(4) is defined by reference to a list in Annexes to the Directive. Those include wastes which are infectious because they contain `viable micro-organisms or their toxins which are known or reliably believed to cause disease in man or other living organisms' (Annex III Paragraph H9). The incineration of hazardous waste is dealt with by Directive 94/67/EEC. Article 2(2) excludes the following;-
"- incineration of animal carcasses or remains
- incineration of infectious clinical waste provided that such waste is not rendered hazardous as a result of the presence of other constituents listed in Annex II to Directive 91/689/EEC".
Without such express exclusion, animal remains could be covered by the Directive. That is hardly surprising since animal remains are obviously waste. But the exclusion and the distinction drawn between animal remains and clinical waste is important. Mr. Wolfe submits that the need to exclude shows that the carcasses can be waste within the meaning of the Waste Framework Directive and that they fall within the list established by the Commission pursuant to Article 1(a) of that Directive (known as 94/3/EC). Paragraph 18 00 00 of this is headed `Waste from human or animal health care and/or related research' which, by 18 02 00 covers `waste from research, diagnosis, treatment or prevention of diseases involving animals'. 18 02 02 reads;-
"other wastes whose collection and disposal is subject to special requirements in view of the prevention of infection".
23. None of this is at all surprising. Animal carcasses would normally fall within the Waste Framework Directive unless exempted by Article 2 because already covered by other legislation. Thus one comes back to the question whether there is such other legislation and to establish that it can be shown that otherwise they fall within the Directive cannot assist the applicant's case. Although the Animal Waste Directive does not of itself provide that other legislation since it does not deal with disposal of the type of animal remains in issue in this case, the inclusion of high-risk material is significant since it suggests the infected animal carcasses are not regarded as requiring a special regime.
24. It is instructive too to see how the Animal Waste Directive has been translated into domestic law. This is by means of the Animal By-Products Order 1992 which defines `animal by-product' as meaning;-
`any carcass or part of any animal or product of animal origin not intended for direct human consumption...".
`Article 5(1) requires disposal of animal by-products by
(a) rendering in approved premises;
(b) by incineration;
(c) by burial'.
While this may, if taken at face value, appear wider than the Directive, the reference to Schedule 1 imports the same limitation to farm animals as is in the Directive. It therefore takes the council's case no further.
25. While the Animal Waste Directive does not by itself constitute other legislation within Article 2 of the Waste Framework Directive, the approach set out in it coupled with 84/360 which specifically deals with air pollution from incinerators does. I do not think that it was intended that animal carcasses should fall within the ambit of Directive Waste or Hazardous Waste so as to require special and wider restrictive control. I am fortified in that view by considering the Controlled Waste Regulations 1992 (1992/588). The definition in (b) includes `any other waste arising from ... veterinary ... practice' and so could include all animals which die in a surgery or are put to sleep by a vet. But that I am sure was not intended. The purpose behind the definition is to include not the whole carcasses but parts which may be removed because infected ("human or animal tissue, blood or other body fluids").
26. Thus in the end the lengthy journey through the various Directives and Regulations has persuaded me that animal carcasses are not Directive Waste. It confirms that the carcasses do not qualify as clinical waste. Accordingly, I am satisfied that the council was correct to have regard to PG 5/3(95) and not to the more rigorous requirements of PG 5/1(95).
27. In order to deal with the arguments based on an alleged failure to consider the required objectives and properly to apply BATNEEC I must consider the evidence in a little more detail. Before doing so, I observe that it seems to me to be clear that any enforcement authority must try to ensure that there is the least possible danger to the environment. Any pollution however small has the potential to damage. Thus the whole tenor of the legislation is looking to keep such pollution and any emissions which can cause pollution to the lowest possible level. Thus I agree with Mr. Wolfe that, as he put it, to apply slavishly the emission limits in the guidance without considering whether any lower limits could be imposed would be to fail properly to comply with the authority's duty. I am not sure that it matters how it is labelled. Essentially the arguments that the council erred in treating compliance with the emission levels in PG 5/3(95) and that it failed to give effect to the relevant objectives (assuming they all apply) are two sides of the same coin. The error lies in an alleged failure to set emission limits and impose conditions which seek to apply BATNEEC to achieve the least possible air pollution.
28. Mr. Walsh explains that he did not directly apply Article 4 of the waste Framework Directive because it did not in his view apply. As I have already indicated, I believe he was correct. But it makes little difference since he himself confirms in Paragraph 73 of his affidavit that he considered BATNEEC and the National Air Quality Strategy and was `seeking to limit emissions to the air certainly to well below any levels at which there could be a risk to human health'. He continues;-
"The national Air Quality Strategy and BATNEEC are both concerned with avoiding the use of processes which could harm the environment".
He asserts in Paragraph 74 that the council in discharging its functions under Part 2 of the 1990 Act `did so with the relevant objectives'. I see no reason to doubt that. He explains why, after taking advice from NIFES, he applied the limit in PG 5/3(95). After pointing out that there was a four year review, he says in paragraph 85;-
"If a guidance note was significantly out of date or failed to take into account a significant new improvement which had become available in a particular process it may be appropriate for a local authority to seek higher standards than those suggested in the Notes. However in this case there was no evidence and no suggestion made to us at any time before issuing the variation that the 1995 Guidance Notes should be applied to a stricter or any other modified way. Nor did our consultants NIFES suggest to us hat there was any reason or any argument that we should regard the Notes as out of date".
29. The applicants have produced evidence from Mr. Watson which raises possible techniques which ought to have been in his opinion considered. The council have produced evidence from their experts seeking to show that Mr. Watson's suggestions are impractical. I cannot decide who is right and am bound to accept for the purposes of these proceedings that Mr. Walsh did not, having taken advice, fail to consider all relevant techniques.
30. Mr. Wolfe argues that for Mr. Walsh to apply the Guideline limits is not to seek to minimise. Thus BATNEEC was not properly applied. He did at one time suggest that to accept the approach advised by NIFES was unlawfully to delegate his responsibilities. That is manifestly wrong and Mr. Wolfe did not pursue the argument. Mr. Walsh did not have the necessary expertise and he and the council cannot be criticised, indeed must be applauded, for seeking advice from those who did have the necessary expertise. Mr. Burrell in his affidavit explains his approach to BATNEEC. I should set out Paragraphs 37, 38, 39 and 41 of his affidavit. They read;-
"37. Measures above those normally required may be appropriate in certain cases. For example in a case where background concentration levels of emissions were higher than those laid down in the Air Quality Strategy or where the plant was in the vicinity of another source of pollutants or located in a different geographic location for example the base of a steep sided valley or by the sea. In my view none of those circumstances apply here. Timeright's premises are situated in a remote location well away from other settlements and there is no other source of emissions with which emissions from the Timeright site would combine.
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 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.
41.It is not correct to suggest that the Council has slavishly followed guidelines rather than 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. Indeed Local Authorities are required by Section 7(11) to have regard to these Guidance Notes when determining applications such as that in this case. Had I considered this to be the case, bearing in mind my initial approach to BATNEEC as set out above, I would have advised DDC differently".
It seems to me that that approach cannot be faulted. Consideration has been given to whether more rigorous controls are needed but, for good reasons, it was decided that the limits in the Note were appropriate to achieve BATNEEC.
31. Mr. Wolfe draws attention to a summary of actual emissions prepared by Dr. Acton in January 1999. Those are set out in a table thus;-
"EMISSIONS TO ATMOSPHERE

POLLUTANT	Measured Emission Value PYROTEC A300	Measured Emission Value PYROTEC AP300	PG Note 5/3 [August 1995 edition standards]
Particulate	28	71	100
Opacity (Ringelmann Shade)	<1	<1	<1
Chloride, as HCI	44	32	100
Sulphur dioxide	221	242	300
Carbon monoxide [test average][peak]	6.5	3.9	100
Organic compounds, as C	2.7	2.3	20
Dioxins/furans	0.0778ng Nm^-3	No Test	1.0ng Nm^-3

A similar table prepared in March 2000 showed as follows;-

POLLUTANT	Measured Emission Value PYROTEC A300	Measured Emission Value PYROTEC AP300	PG Note 5/3 [August 1995 edition] standards
Particulate	64	47	100
Opacity (Ringelmann Shade)	<1	<1	<1
Chloride, as HCI	33	38	100
Sulphur dioxide	221	119	300
Carbon monoxide [test average][peak]	8 16	8 13	100 150
Organic compounds, as C	1.8.	1.2	20

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.
32. 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.