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QUEEN v. DERBYSHIRE COUNTY COUNCIL [2000] EWHC Admin 393 (6th October, 2000)

Case No: CO/1493/2000

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 6th October 2000

B e f o r e :
MR JUSTICE MAURICE KAY

	THE QUEEN
	v.
	DERBYSHIRE COUNTY COUNCIL

Ex parte David Murray
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(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)
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Mr Wolfe (instructed by Public Interest Lawyers) for the Applicant)
Mr Evans(instructed by David W. Tysoe, Solicitor and County Secretary) for the Respondent)
Mr Katkowski QC (instructed by Nabarro Nathanson) representing Fitzwise Limited

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Judgment
As Aproved by the Court
Crown Copyright

MR JUSTICE MAURICE KAY:
1 Derbyshire County Council ("the Council") is the local planning authority in relation to waste disposal facilities in its area. There is an established landfill site known as the Hall Lane Site close to the village of Barrow Hill which is just outside the town of Staveley. On 20 March 2000 the Council, through its Environmental Services Planning Development Subcommittee, granted planning permission for an extension in the use and duration of the Hall Lane Site. This involved a larger area, the extraction of 120,000 tonnes of clay, the incidental extraction of 1000 tonnes of coal and the provision of a fourth waste cell with an additional 650,000 tonnes of waste disposal capacity and extending the life of the landfill operation by about one year to December 2005. The Applicant lives in Barrow Hill. He and other local residents objected to the planning application on environmental and amenity grounds. Following the grant of planning permission, he now seeks to challenge that decision by way of an application for judicial review. The Respondent to the application is the Council and Fitzwise Limited, the operator of the Hall Lane Site, is an interested party. Permission to apply for judicial review was granted by Elias J on 18 May 2000.
2 When I come to consider the four grounds of challenge put forward on behalf of the Applicant, I shall have to refer to parts of the evidential material as appropriate. However, it is appropriate to refer at the outset to two factual aspects of the case which loomed large throughout Mr. Wolfe's submissions. These are that the permitted development would have some adverse environmental consequences and that there is no immediate need for the permitted development. This latter aspect was expressed by the Council's Director of Environmental Services in his Report to the Environmental Services Planning Development Subcommittee in the following terms:
"The site is well located to serve the North East Sub-Area of Derbyshire and currently
takes waste from Chesterfield and areas of North East Derbyshire closest to the site. Hall Lane and Glapwell are the two main sites for the disposal of household waste in the North East Derbyshire Sub-Area. Other approved landfill sites are Erin Void and Egstow Quarry. The remaining reserves in these existing or approved voids should be sufficient for waste arisings in this area for up to 20 years. I therefore consider that there is an adequate supply of facilities within the Sub-Area to meet its needs."
In the course of submissions, neither Mr. Evans on behalf of the Council nor Mr. Katkowski QC on behalf of Fitzwise took issue with Mr. Wolfe's oft-repeated submission that it cannot properly be claimed that there is any need, in waste disposal capacity terms, for the development.
3 I now turn to the grounds of challenge.
Ground 1: failure to comply with current guidance as to the best practicable environmental option ("BPEO").
4 In October 1999 the Secretary of State issued PPG10 under the title Planning and Waste Management. Annex A concerns planning considerations and planning conditions. Paragraph A1 requires waste planning authority to consider the provision of waste management facilities within the context of, inter alia, the BPEO. Paragraph A52 states:
"All locations need to be considered in terms of the [BPEO]."
This provision is new. It is not to be found in the earlier PPG23 of July 1994 which PPG10 partly replaces. PPG23 adopts the definition of BPEO put forward by the Royal Commission on Environmental Pollution, viz:
"the outcome of a systematic consultative and 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 cost, in the long term as well as in the short term."
Mr Wolfe submitted that the Council simply did not consider paragraph A52 which was clearly a material consideration and that it failed to undertake a site-specific BPEO assessment. In order to consider this submission it is necessary to refer to some of the documentary material.
5 The report of the Director of Environmental Services includes a passage under the heading "the need to adopt the BPEO for individual waste streams". The passage commences with the quotation of the Royal Commission's definition of BPEO and continues:
"To be able to assess BPEO on a site specific basis would need the presence of alternatives and further evolution in the guidance to enable it to be a more decisive tool in reaching planning decisions."
It then refers to ongoing research into land use planning aspects of BPEO before adding:
"BPEO is an important approach in planning decisions......There are clearly also a number of other issues which need to be taken into account in the planning process. Whilst under present knowledge it is difficult to assess BPEO, facilities for the safe disposal of waste are necessary. This site would provide for the safe disposal of the waste and it is not at the bottom of the waste management hierarchy in that there are environmental benefits from the energy currently recovered from waste by the utilisation by a local brickworks of the landfill gas. There will clearly be a continuing need for landfill over the life of the proposed site. The other benefits of this particular proposal include the waste recovery, clay extraction and local utilisation, removal of dereliction and appropriate reclamation. My overall assessment is that in the circumstances the proposal is an acceptable waste management option in terms of BPEO."
6 Against this background, Mr. Wolfe made the following submission. First, paragraph A52 is not referred to anywhere in the documentation and, by inference, it was not considered. Secondly, the Council did not consider the specific site in terms of the BPEO but rather sought to justify not doing so on the ground that to do so would be "difficult". Thirdly, the reference in the Report to a "continued need" is inconsistent with the earlier reference to an "adequate supply of facilities". Fourthy the reference to waste streams in the heading of the relevant part of the Report is indicative of a failure to appreciate a change in policy in PPG10 with its emphasis on a site-specific approach to the BPEO.
7 Mr. Evans, whilst accepting that paragraph A52 is in different terms from what went before, disputed that it required a wholly new approach to the application. A draft PPG10 had been a material consideration in Regina v. Leicester County Council, ex parte Blackfordby & Boothorpe Action Group Limited (Unreported, Transcript 15 March 2000) and its predecessor, PPG23 was an issue in Regina v. Bolton Metropolitan Council, ex parte Kirkman [1998] JPL 787, in which Carnwath J said (at p. 799):
"There is, however, no statutory duty imposed on the planning authority to treat it as the determinative issue or the `correct question', if that is meant to suggest that in every case the authority is required, as a first step, to determine whether the particular process represents the BPEO for the raw materials in question. It is a material consideration to which the authority should have regard. In law, the weight to be given to it in any particular case is a matter for them."
This approach was approved in the Court of Appeal (see Schiemann LJ at p. 807) and was followed by Richards J in the Blackfordby and Boothorpe case when he said (at para 64):
".....a detailed BPEO exercise was not required in relation to this application, even if no such exercise had been carried out in relation to individual sites at the stage of the draft Waste Local Plan. The Council was entitled to take into account the BPEO concept in the way that it did."
Thus, although there had been a change in the content of the documents attracting material consideration status between the two cases, the approach remained substantially the same. Secondly, Mr. Evans submitted that what is important is not whether paragraph A52 is expressly mentioned by or to the Council but what they did in fact consider. In this regard, the Report of the Director of Environmental Services contains what was in fact a site-specific approach to BPEO, notwithstanding the reference to "waste streams". These submissions were adopted and further refined by Mr. Katkowski. I should add that in the Director's Report, in addition to that which I have already quoted, there is a passage referring specifically to the partial replacement of PPG23 by PPG10 and to BPEO as one of the four principles set out in PPG10 (Bundle, pages 32-33). There is also material (Bundle, pages 50-51) which, in my judgment, does exhibit a site-specific approach, notwithstanding the difficulty to which the Director had referred in the passage which I quoted earlier.
8 I have come to the conclusion that the submissions of Mr. Evans and Mr. Katkowski are correct, that the advice contained in the Report of the Director was adequate and sufficient on the BPEO issue and that the Applicant has not established that the subsequent decision was afflicted by a failure to have due regard to the guidance on the BPEO contained in PPG10
Ground 2: Failure to give effect to the "relevant objectives" prescribed by the Waste Management Licensing Regulations 1994
9 Waste management has attracted the attention of European institutions. Council Directive 75/442/EEC, as amended by 91/156/EEC and 96/350/EC, prescribes a framework. It is usually referred to as the Waste Framework Directive. Article 4 of the 1991 amendment requires Member States to
"take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:
- without risk to water, air, soil and plants and animals,
- without causing a nuisance through noise or odours,
- without adversely affecting the countryside or places of special interest.
Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste."
In Article 7(1), the provisions of Article 4 are referred to as "objectives".
10 The Waste Management Licensing Regulations 1994 ("the 1994 Regulations") were enacted to give effect to the requirements of the 1991 Directive. Paragraph 4(1) of Schedule 4 is headed "relevant objectives" and is in the following terms:
"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."
11 Mr. Wolfe submitted that in the present case the Council did not give proper consideration to these "relevant objectives" and that it was a legal error not to give them substantial weight.
12 It is clear that the Council was made aware of Article 4 of the Waste Framework Directive and its transposition into domestic law. The Applicant's solicitors had raised it in correspondence and there is a section in the Report of the Director of Environmental Services dealing with it. It concludes with this advice:
"I consider therefore that the Article expresses a series of objectives to be achieved, which the Authority should follow, but does not create an absolute duty of that kind. If such a strict interpretation were to be followed then as a matter of logic it is difficult to see how permission could be granted for any means of disposing of waste; none can be shown to be entirely risk free."
All parties approached the case on the basis that in this and other respects the Report informed the decision of the Council.
13 Mr. Wolfe diligently took me through the jurisprudence of the European Court of Justice on the Waste Framework Directive, particularly Ministere Public v. Oscar Traen [1987] ECR I - 2141 and Comitato di Coordinamento per la Difesa Della Cava v. Regime Lombardia [1994] ECR I - 483. He was similarly helpful to Richards J when appearing for the applicant in Blackfordby & Boothorpe Action Group Limited. I intend no discourtesy to the thoroughness of Mr. Wolfe's research and submissions if I concentrate first on the judgment of Richards J. As in the present case, one of the issues concerned the parameters of the burden placed on a waste planning authority by the "relevant objectives". Richards J said (at paras 42-43):
"Mr. Wolfe accepts that the objectives are not absolute requirements in the sense of requiring a local planning authority in each case to achieve the result pursued by the objective. That would amount to a requirement to refuse planning permission if there were any risk to human health or the environment, which would in turn lead to the refusal of planning permission for any or almost any landfill site.....The submission made, however, is that the relevant objectives nonetheless impose more onerous obligations on local planning authorities that would be the case if they fell simply to be taken into account as material considerations. In particular, the Waste Framework Directive, and therefore the 1994 Regulations giving effect to it, should be interpreted as requiring the authorities to avoid or minimise any risk to health or to the environment, or.....to do all that is practical to achieve the objectives."
Richards J then referred to the European cases and also to the judgment of Schiemann LJ in ex parte Kirkman (at p. 805) before concluding (para. 49):
"I take the view that the balance of authority is against Mr. Wolfe's submissions. Even leaving aside authority, the proposition for which he contends should in my view be rejected. It would give to the relevant objectives and indeterminate status, lying in the unsatisfactory middle ground between that which must be taken into account in the decision - making process and that which must be achieved by the decision.....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 authority understands their status as objectives and takes them into account as such when reaching its decision, then it seems to me that the authority can properly be said to have reached the decision `with' those objectives. The decision does not cease to have been reached with those objectives merely because a large number of other considerations have also been taken into account in reaching the decision and some of those considerations militate against the achievement of the objectives."
All that, it seems to me, is both good sense and good law. In the present case, Mr. Wolfe sought to circumvent it by reference to factual differences between the two cases (in particular, the lack of proven need here) and to one submission which Richards J expressly left open. He said (para. 50):
"A further argument advanced by Mr. Wolfe ......is that it is generally open to a decision - maker to decide what weight to give to a material consideration, whereas it must be contrary to the Directive to give the objectives little or no weight. It may be that the general rule concerning the weight to be given to material considerations would need to be qualified in the case of the objectives and that it would amount to a misdirection to fail to give them substantial weight. I do not consider it necessary to decide that point in the present case because there was in my view no failure by the council to give them substantial weight."
Mr. Wolfe's submissions in the present case require a decision on the point there left open by Richards J. The argument is that, in the absence of proven need and in all the circumstances of this case, the affording of substantial weight to the objectives could result in only one conclusion, namely the refusal of planning permission.
14 I can well see why, from an environmentalist perspective, this approach has its attractions. Although Mr. Wolfe did not put it in precisely this way, it does seem a little odd that obligations arising from supranational negotiations and expressed in apparently strong language are reduced in national implementation to material considerations of unquantifiable weight. On the other hand, as Mr. Katkowski pointed out, the judicial creation of a special category of consideration attracting substantial weight as a matter of law would represent a radical departure from first principles in this area and would also generate numerous disputes as to what is "substantial weight" in the context of a particular case. I have in mind that in other areas of law "substantial" is given the somewhat limited meaning of "more than minimal".
15 In my judgment, it would not be appropriate for me to extend the law in the way Mr. Wolfe invited me to do. I am satisfied that the limits of the obligations imposed upon the Council are those so clearly set out by Richards J. Applying that to the facts of the present case I have no doubt that the Council had due regard to the relevant objectives and that whatever weight was afforded to them is not susceptible to challenge. Accordingly, this ground of challenge fails.
Ground 3: failure to give effect to the precautionary principle
16 Article 174 (previously 130r) of the EC Treaty, having provided that Community Policy on the environment "shall contribute" to specified objectives, states:
"Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventative action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay."
Mr. Wolfe submitted that it was incumbent upon the Council to give effect to these principles, and in particular the precautionary principle, when considering the application for planning permission in the present case. He conceded that if there were an identical pressing need for the facility, the precautionary approach would not necessarily prevent a grant of permission. However, in the absence of such a need and in the light of existing knowledge, the application of the precautionary principle in the present case pointed inexorably to a refusal. His reference to existing knowledge embraced material indicating uncertainties about health risks in relation to persons living close to landfill sites and the fact that the Government had commissioned research into the matter which was expected to be completed in summer 2000. All these were material considerations.
17 Whilst it is true that the Report of the Director of Environmental Services did not refer in terms to the precautionary principle, it did refer to the Waste Framework Directive and its transposition into English Law in the 1994 Regulations. They are, in effect, a restatement of the precautionary principle in the context of this case. Mr. Evans and Mr. Katkowski made forceful submissions against this ground of application. To the extent that it seeks to raise a free-standing principle of inexorable application in the circumstances, they rely on what Richards J said in Blackfordby and Boothorpe (para. 66):
"It is difficult to see precisely how Mr. Wolfe seeks to rely on the precautionary principle. He accepts that the principle as contained in the EC Treaty does not have direct effect. Although it is said to illuminate the Waste Framework Directive and the implementing provisions of the 1994 Regulations (which undoubtedly reflect the principle), it does not in my view take any further the arguments already considered in relation to those matters."
Thus, it was submitted, Mr. Wolfe has previously lost this argument and it is unsustainable here. In my judgment, there is irresistible force in this submission. To the extent that Mr. Wolfe is seeking to recast the argument to one which simply contends that the Council failed to have regard to the precautionary principle as a material consideration, I find that too unsustainable. For one thing, it adds nothing to Ground 2, above. Moreover, I am unable to find that there was a failure to have regard to the principle in any event.
Ground 4: Berkeley v. Secretary of State
18 Shortly before the hearing of this application, the House of Lords decided Berkeley v. Secretary of State (6 July 2000). As a result, Mr. Wolfe sought permission to amend his application to add a fourth ground alleging that the Council
"erred in law in granting planning permission having considered an Environmental Statement which failed to comply with the mandatory requirements of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988."
He sought to justify the lateness of his application to amend by contending that, prior to the decision of the House of Lords, the decision of the Court of Appeal in Berkeley was against such a ground. Mr. Evans and Mr. Katkowski opposed the amendment but frankly conceded that they were in a position to deal with the new ground without adjournment. I agreed to hear the rival substantive submissions. I have come to the conclusion that it is appropriate and just to permit the amendment.
19 It is common ground that the application for planning permission in this case attracted the provisions of the 1988 Regulations which imposed upon Fitzwise an obligation to produce an environmental statement (ES) which complied with the requirements of the Regulations. In fact they did produce a document purporting to be an ES. With its appendices, it exceeded fifty pages. Mr. Wolfe submitted that, nevertheless, it did not comply with the requirements of the Regulations and that, following Berkeley, the decision to grant planning permission on the basis of an application with a flawed ES was an unlawful decision.
20 In Berkeley no document purporting to be an ES accompanied the planning application and neither the local planning authority nor the Secretary of State, who "called in" the application, required one. It was common ground that this was a fundamental flaw. The argument on behalf of the Secretary of State in the House of Lords was that there had nevertheless been substantial compliance with the requirements in that the equivalent of an ES could be found by piecing together information from a number of different documents from different sources some of which incorporated or cross-referred to others. Lord Hoffmann rejected this argument. He said:
"........I do not consider that this paper chase can be treated as the equivalent of an environmental statement. In the first place I do not think it complies with the terms of the Directive. The point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language.......I do not think it allows Member States to treat a disparate collection of documents produced by parties other than the developers and traceable only by a person with a good deal of energy and persistence as satisfying the requirement to make available to the public the information which should have been provided by the developers."
Is the present case a Berkeley case? In my judgment it is not. No paper chase is necessary. Fitzwise submitted a lengthy document. The Council had the power to require further information (regulation 21) but did not do so. Neither did the Applicant request the Council to exercise that power. Indeed, no criticism was made of the document until very shortly before the hearing. Whatever may be said about the state of law between the decisions of the Court of Appeal and the House of Lords, it was not such as to inhibit criticism of an ES if it were thought to be defective or deficient. In all the circumstances I am quite satisfied that Berkeley does not, and was not intended to, apply to a case such a this. It would be most unfortunate if a document described as an ES could be treated by all parties as an ES up to and beyond a planning decision and only be called in question in a subsequent application for judicial review. In the course of the hearing I was provided with detailed submissions from all parties as to whether or not the document in this case complied with the requirements of the Regulations. I do not believe that it will be necessary or helpful for me to rehearse those submissions. It is sufficient for me to state that, in my judgment, Fitzwise's document complied or, at the very least, substantially complied with the requirements of the Regulations in relation to ESs.
Conclusion
21 It follows from what I have said that I am not persuaded by any of the grounds of challenge in this case and that the application for judicial review is accordingly refused.
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MR JUSTICE MAURICE KAY: In this matter the application for judicial review is refused for the reasons set out in the judgment handed down today.
MR CARTER: May it please your Lordship, I appear today for the respondent. My learned friend, Mr Smith, appears for the interested party; and my learned friend, Mr Wolfe, for the applicant. In those circumstances, I would invite your Lordship to order that the claimant should pay the respondent's cost in this application; that the amount of those costs should be subject to detailed assessment if they cannot be agreed; and that the determination of the amount of those costs, which it is reasonable for the claimant to pay, is postponed pursuant to regulation 127 the Civil Legal Aid General Regulations 1998.
MR JUSTICE MAURICE KAY: It is a legal aid case, is it?
MR CARTER: It is, my Lord, yes.
MR JUSTICE MAURICE KAY: How long did the hearing take?
MR CARTER: It went into a second day. The estimate for length of hearing was two days.
MR JUSTICE MAURICE KAY: Nobody has prepared a summary?
MR CARTER: No, well certainly not my clients, and I have not seen one from any other party.
MR WOLFE: If it assists, I do not have a reference but where the party against whom an order is proposed to be made out of the benefit of public funding, I think there are some assessment rules that discourage summary
assessments, even if it would be otherwise appropriate.
While on my feet, my client has the benefit of public funding.
MR JUSTICE MAURICE KAY: Is there any contribution?
MR WOLFE: No, my Lord. Subject to the wording being correct, I cannot resist the usual order.
MR JUSTICE MAURICE KAY: As far as concerns the respondent's cost there will be an order in the form in which it is sought.
MR SMITH: I appear, as my learned friend indicated, for the interested party. There was on the 26th May the hearing of an application for an interim judgment, in respect of which the costs of that matter were to be costs in the substantive application. The first respondent, the County Council was not present nor represented at that application. On the same basis, the same legal aid basis, I ask that I should have the costs for that hearing.
MR JUSTICE MAURICE KAY: That was an application effectively against Fitswise Limited who were operating the site and it sought interim relief, an injunction to stop you availing yourselves of the planning permission pending the hearing.
MR SMITH: Just so.
MR JUSTICE MAURICE KAY: It was a contested application which was not granted.
MR SMITH: It came to be that the matter was resolved between the parties, Fitzwise Limited undertaking that at the hearing it would not rely on any prejudice that
might be caused to it by reason of it having carried out any works.
MR JUSTICE MAURICE KAY: But it did not undertake not to act.
MR SMITH: It did not. It undertook not to rely on its actions in accordance with the permission in the substantive hearing as to any question of relief. But it was agreed, as I understand it, that the costs of that application were to be costs in the substantive application.
MR JUSTICE MAURICE KAY: What are you asking for? Simply an order in relation to the hearing of 26th May and no more?
MR SMITH: Yes.
MR WOLFE: Again I cannot resist the principle of that, but again obviously ask for it on the same legal aid terms.
MR JUSTICE MAURICE KAY: Certainly.
MR WOLFE: I have a separate application, which is an application to your Lordship for permission to appeal arising in relation to one of the grounds dealt with by your Lordship, which was ground 2, as your Lordship has described it. That is in relation to the relevant objectives and the Waste Management Licensing Regulations 1994. Your Lordship will recall that.
First of all, I should say that between your Lordship dealing with this matter and giving judgment, judgment has been given in another case which deals with the Article 4 objectives, although not quite the same
point your Lordship has had to deal with. Permission was granted in that matter by Mr Justice Collins. That matter will be going to the Court of Appeal. Therefore, the Court of Appeal will be wrestling with the proper application.
MR JUSTICE MAURICE KAY: Is that the one I saw in The Times the other day. You appeared for the applicant?
MR WOLFE: Indeed.
MR JUSTICE MAURICE KAY: That was a substantive hearing. You failed, but Mr Justice Collins gave you leave to go to the Court of Appeal. It was a totally different point.
MR WOLFE: It is, although the Article 4 point is part of the appeal. I have not seen the Times Law Report, but I suspect that that did not deal with the Article 4 point because the Article 4 argued in that case was not the one that your Lordship grappled with and was not an argument available to us at first instance in that case because it effectively had been decided against us at first instance on that point.
MR JUSTICE MAURICE KAY: Let me be perfectly clear about this. You are only seeking permission to appeal in relation to the Article 4 point?
MR WOLFE: There are two points I would wish to argue before the Court of Appeal. One is the Article 4 point and one is the Berkeley point, as your Lordship has characterised it. So not the not the other two points.
MR JUSTICE MAURICE KAY: As far as concerns the Article 4 point, did you seek permission to appeal against the judgment of Mr Justice Richards in the Blackfordby case?

MR WOLFE: Yes, my Lord.
MR JUSTICE MAURICE KAY: I think you told me at the hearing. Did you succeed or fail?
MR WOLFE: I failed.
MR JUSTICE MAURICE KAY: You were refused permission by the Court of Appeal?
MR WOLFE: Yes.
MR JUSTICE MAURICE KAY: The point you want to pursue is the one that Mr Justice Richards left open and the one that I resolved against you.
MR WOLFE: Yes, which was not ventilated before the Court of Appeal in the application in that case.
MR JUSTICE MAURICE KAY: No, because of the finding in the substantial way.
MR WOLFE: Exactly. I hope that is clear. In terms of the test, I am sure I do not need to remind your Lordship, is one of no real prospect of success. I draw your attention to what your Lordship identified as appearing a little odd, which is in paragraph 14 of your Lordship's judgment. That is the apparent distinction between an obligation arising from supernational negotiations expressed in -- as your Lordship put it -- apparently strong language and their domestic implementation. The difficulty which is faced -- I can take your Lordship to the Marleasing judgment which I think is on your Bench as necessary, but what we are here seeking to do is to have domestic legislation, which in its text directly transcribes the form of directory, construed. That is not in my submission inviting the court to do other than
that which it is obliged to do under the form of the implementing regulations.
Therefore, in my submission, the matter your Lordship has identified as being somewhat odd is precisely a matter which has very much a real prospect of success and which the Court of Appeal needs to consider both in this case and clearly more generally, because your Lordship will appreciate the point raised in this case is one of much wider public importance, in the sense that any waste management case, be it a landfill or an incinerator, is going to raise the same questions because the same threat is in play in every case.
MR JUSTICE MAURICE KAY: What to you want to say about Berkeley?
MR WOLFE: In relation to Berkeley your Lordship has dealt with that in two ways. First, in distinguishing -- quite clearly correctly -- whether or not the Barkeley case was about whether or not there was an EIA. That is clearly a material distinction. In my submission, the point goes further than that, which is as to the content of the EIA and in particular as to the specific requirements led by the individual elements of the regulations. Your Lordship has found that there was compliance. But in exactly the same way as in the Berkeley case that was a matter which precisely the Court of Appeal, and in due course the House of Lords, wrestled with on the bigger question. In my submission, that is a matter which is properly dealt with as a question of law not as a question of fact in relation to the content of the EIA.
Merely having a document which says it is an EIA and which appears to have a lot of material in it is not sufficient and the live question -- and it is, in my submission, a question of law -- is what is precisely required in the content. In my submission, there is at the very least a real prospect of success on appeal of that matter.
MR JUSTICE MAURICE KAY: Thank you very much. Any representations for the respondent on that or Mr Smith on that? .
MR CARTER: Only in respect of the point in relation to the second ground of the application. My learned friend refers to the situation which your Lordship refers in his judgment about appearing somewhat odd at first sight. Of course your Lordship approved the formulation of my learned friend, Mr Katkowski when he pointed out in his submissions that my learned friend's point would amount to a radical departure from first principles.
MR JUSTICE MAURICE KAY: Yes, but radical departures sometimes occur.
MR CARTER: Yes, but in my submission, this is not a case where the situation is ambiguous or unclear and requires clarification. The law is clear. Your Lordship applied it according to the authorities.
MR JUSTICE MAURICE KAY: Anything to add?
MR CARTER: My Lord, nothing.
MR JUSTICE MAURICE KAY: Mr Wolfe, I propose to give you permission on the Article 4 point, but I shall not give you permission on the Berkeley point. So far as concerns
the Article 4 point I chose my language carefully , as I hope I did in the rest of the judgment. The form of language I chose was not to discourage you from making the application you have just made. I think that the High Court ought to look at it.
If you have this pending appeal arising out of Mr Justice Collin's judgment, which is on Article 4, albeit different, would it be sensible if the two were heard together?
MR WOLFE: I am sure that it would.
MR JUSTICE MAURICE KAY: When did Mr Justice Collins --
MR WOLFE: The notice of appeal on that matter has only gone in in the past few days. Judgment was given on that formally at the beginning of September.
MR JUSTICE MAURICE KAY: The appeal is not far advanced.
MR WOLFE: My Lord, no. The papers have only just been lodged in the last few days.
MR JUSTICE MAURICE KAY: Who are the respondents in that case?
MR WOLFE: Daventry District Council. That arises in an incinerator licensing context rather than in a planning context.
MR JUSTICE MAURICE KAY: Yes. The approach of an authority to Article 4; it is a question of weight.
MR WOLFE: My Lord, yes.
MR JUSTICE MAURICE KAY: Is that common to both cases?
MR WOLFE: It is. In the sense the other case is the bolder submission, if you like, which is the submission as to doing all that is reasonably practicable. That
arises because the factual context is very different.
MR JUSTICE MAURICE KAY: It is your judgment that there would be advantages in them both being heard together.
MR WOLFE: I am sure that would be right. Certainly the Court of Appeal in both cases would have to look fundamentally at the same authorities on the Article 4 point. The other case raises other points as well.
MR JUSTICE MAURICE KAY: It is not fair to ask the respondents here whether they have any views on the matter because you probably know very little about the matter.
MR CARTER: That is correct, my Lord.
MR JUSTICE MAURICE KAY: Is that the same for the interested party? You would not be party to any appeal here.
MR SMITH: I was seeking to see if we would want to be in on that. We probably would be parties.
MR WOLFE: They would be entitled to be there. The costs position would be even weaker than it was today, but they would be entitled to be there.
MR JUSTICE MAURICE KAY: That depends on any course any appeal may take. I am wondering whether to order whether they be joined or merely to order that consideration be given to joining them and then somebody in civil appeals can communicate with the parties.
MR WOLFE: If your Lordship is able to order it, then I would encourage that because the adding of this case to the other case will not add any time to the appeal in the other case, or very little time, whereas clearly adding
that case to this would add time to this case because the other case raises free-standing arguments that do not arise here. But the Court of Appeal's time overall would be greatly saved by adding the two together.
MR JUSTICE MAURICE KAY: I am not sure that I can order it. It is rather like expedition in the Court of Appeal -- one hopes it takes place but it is a matter for the Court of Appeal.
MR WOLFE: I think that may be right. I will encourage your Lordship to do whatever you can to encourage it.
MR JUSTICE MAURICE KAY: I will simply say that I shall direct that consideration be given to the joinder of this appeal with the one in the Daventry District Council case. Could you give the associate a full reference for that before you leave the court? Anything else?
MR WOLFE: Legal aid taxation.
MR JUSTICE MAURICE KAY: Yes.
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