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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Langton & Anor, R (On The Application Of) v Department For The Environment, Food & Rural Affairs & Anor [2001] EWHC Admin 1047 (17th December, 2001)
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Cite as: [2001] EWHC Admin 1047
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Langton & Anor, R (on the Application of v Department for the Environment, Foodand Rural Affairs & Anor [2001] EWHC Admin 1047 (17th December, 2001)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
| Royal Courts of Justice Strand, London, WC2A 2LL | ||
B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
THE QUEEN on the application of
MATTHEW JOSEPH LANGTON
DENLEY GEORGE ALLEN
Claimants - and -
(1)THE DEPARTMENT FOR THE ENVIRONMENT, FOOD
AND RURAL AFFAIRS
(2) DERBYSHIRE COUNTY COUNCIL
Defendants
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)
Richard McManus QC, and Paul Brown (instructed by the Department for the Environment, Food and Rural Affairs) for the First Defendant
Philip Havers QC, and Nicholas Cole (instructed by Derbyshire County Council, Matlock, Derbyshire) for the Second Defendant
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
- The Second Claimant is a farmer and owns land known as Bardon Farm in Smalley, Derbyshire, together with grazing land about three miles away in Woodlinkin in Loscoe. The First Claimant is the Second Claimant’s son-in-law and lives in a self-contained dwelling at Bardon Farm with his wife and children. Since December 1998, the First Claimant has operated a knackers yard at Bardon Farm. Although these proceedings have been brought by both claimants, only the Second Claimant was represented during the course of the hearing.
- The First Defendant has powers and duties under the Animal Health Act 1981 including the power to make orders for the purpose of preventing the spreading of disease. In particular the First Defendant has power under the Animal By-Products Order 1999 to serve on any person in charge of any animal by-product, a notice calling for the disposal of the by-product by burning or by burial, or as may otherwise be specified in the notice.
- The Second Defendant has a particular responsibility under the 1999 order for the enforcement of any notice served by the First Defendant.
- Enforcement action in this case arises from the accumulation of maggot waste by the First Claimant on the land referred to above. The First Claimant failed to dispose of the maggot waste (an animal by-product) – this is not only the opinion of the First and Second Defendants, but appears to be common ground. This led to the service of a notice, to subsequent enforcement action, and eventually to the Second Defendant carrying out the works. The Second Claimant, relying on the Human Rights Act 1998, alleges breaches of Article 6 and Article 1 of the First Protocol of the European Convention on Human Rights and, by proposed amendments, claims relief on the basis of alternative judicial review grounds, such as unreasonableness, absence of proportionality and general unfairness.
- On 27th October 2000, Mr Justice Sullivan granted permission for amendments to be made to the grounds, and granted permission in relation to the Article 6 and Article 1/First Protocol points. (Mr Justice Sullivan rejected as unarguable a claim that the First Defendant could not have been satisfied that there was lack of capacity to process the animal waste.)
- On 15th January 2001 the Second Defendant entered onto the land at Loscoe in order to commence necessary works. On 17th January 2001 Mr Justice Elias granted an injunction until 15th February 2001 (the then proposed date of the hearing of the substantive application for judicial review).
- On 20th February 2001, Mr Justice Elias dismissed an application for the continuation of the injunction. Between February and March 2001 contractors carried out work on behalf of the Second Defendant at an estimated cost of £30,000 to £40,000. An application was made before me, opposed by the Defendants, for permission to re-amend the original grounds to add (in paragraphs 27 and 28) additional grounds of complaint, including a breach of Article 3(2) of Directive No.667/EEC.
- This necessarily brief introduction merely touches on some of the facts and refers to some of the statutory material. It is necessary in the following sections of this judgment to set out the facts in greater detail and to reproduce the central statutory provisions. I turn first to the legislative framework.
- Animal Health Act 1981, Section 1.
- Council Directive 90/667/EEC of 27th November 1990.
- The Second Claimant accepted before me that the maggot waste with which these proceedings are concerned falls within the definition of “high-risk material” in Articles 1 and 3 of the Directive. The Second Claimant also accepts that the maggot waste contained residues of substances which may have posed a danger to human or animal health and which were suspected of presenting serious health risks to animals or man. It is to be noted that the purpose of the Directive is to avoid risk – see, for example, the Recitals, Article 1(1)(a)(i), and Article 2(2). The Directive, therefore, adopts the precautionary approach that where material is suspected of presenting serious health risks to animals or to humans, rules for the processing of that material must be followed. This seems to me to be an important feature of the legislative framework. It is not a case of the need for the responsible authorities to establish, or to be satisfied, that actual serious risks to health exist, but rather that there is a reasonable basis for deciding that the material (such as maggot waste in this case) is suspected of presenting such a risk.
- The Animal By-Products Order 1999
- An inspector is defined by Section 89 of the Animal Health Act 1981 as “a person appointed to be an inspector for the purposes of this Act by the Minister or by a local authority, and, when used in relation to an officer of the Ministry, includes a veterinary inspector”.
- The Human Rights Act 1998
- The relevant provisions of the Human Rights Act came into force on 2nd October 2000, see S.I. 2000/1851.
- Schedule 1 – The Articles
- The application for judicial review in its various amendments has consistently focussed on two events. First, the service by the First Defendant of a notice dated 19th July 2000 on the First Claimant requiring the disposal of animal by-products on land at Bardon Farm and Loscoe, Derbyshire; secondly, the decision of the Second Defendant made on or about 21st August 2000 to enter the land at Bardon Farm and Loscoe to carry out the works identified in the notice. However it is necessary to look at events before and after those dates in a little detail. There are many witness statements and expert reports and a considerable number of documents. I have not attempted in this judgment to refer to all of the factual background and there are areas of evidence which remain contentious. What follows is an attempt to summarise the history with a few more detailed extracts from the evidence. I have not attempted to resolve conflicts of fact unless that resolution is clear and obvious. However, at the end of the day, it may be concluded that the conflicts of fact on the strictly relevant matters are not of central importance when considering the lawfulness of the Defendants’ decisions and actions, and whether or not there has been an interference with the Second Claimant’s human rights.
- The first part of the story can be taken from the witness statements of the Claimants. As already noted, the First Claimant is the Second Claimant’s son-in-law and operates a knackers yard on land belonging to the Second Claimant on part of Bardon Farm, including land which he occupies in accordance with the terms of an agreement dated 9th February 1999. It is unnecessary to set out the terms of that lease in any detail, save to note the following: by Clause 4.1 the tenant was only to use the holding for grazing and mowing and for no other purpose whatsoever without the consent in writing of the landlord; by Clause 4.9 the tenant agreed that he would not allow anything to be done on the holding which might cause the pollution of any watercourse or any supply of water; by Clause 4.12 the tenant agreed that he would comply with any proper notice, order or direction given in relation to the holding and would comply with any by-laws, statutory provisions or regulations which applied to the holding.
- As the First Claimant notes in paragraph 3 of his statement, the land was not particularly good and the land at Woodlinkin was former opencast land. As such it had very little topsoil on it and was comprised mainly of clay. It was therefore only of use for grazing rather than for growing arable crops.
- At the end of 1999 the First Claimant saw the opportunity of making extra money by taking in maggot waste and burning it in his incinerator at the knackers yard. In paragraph 4 of his witness statement, he says:
- In paragraph 8 of his statement, the First Claimant describes how maggot breeding operations take place, indicating, in his opinion, that the maggot waste is merely the residue of minced fresh poultry meat, mixed in with sawdust.
- The First Claimant’s description of the problem - that he “bit off more than he could chew” – is not entirely accurate. His incinerator could only process 5 tonnes of animal waste per week. Eurobait, the owners of various maggot farms, were sending the First Claimant, between 40 and 60 tonnes a week for disposal.
- Following a complaint from one or more members of the public, a veterinary officer from the First Defendant, together with officers from the Second Defendant and Environment Agency officers visited the land where the First Claimant had deposited the maggot waste in two very large heaps, together with areas of land where earlier deposits had been ploughed in by the Second Claimant. The following extract is taken from paragraph 9 of the first witness statement of Mrs Bolton, an administrator with the First Defendant:
- Following those visits, three fields were ploughed on 11th and 12th April by the Second Claimant to a high standard under the supervision of Derbyshire County Council officials.
- On 20th April 2000, the Second Defendant and the Environment Agency served notices on the First and Second Claimants under the Environmental Protection Act 1990 requiring that “the waste is to be removed and disposed of at a suitable licensed disposal facility” within 21 days of the notice.
- These notices related to two mounds of maggot waste, with an approximate overall weight of 2,000 tonnes (see the witness statement of Peter Rutherford, Environment Protection Officer employed by the Environment Agency). The Environment Agency notices and the notices by the Second Defendant required the disposal of the animal by-product. The First Claimant, however, ignored the notices and over the Bank Holiday weekend of 29th April/1st May 2000 spread the material over the land. There was an attempt to plough the waste into the land, but this was carried out inadequately, the end result being that the waste was now mixed with soil and earth, increasing its approximate weight from 2,000 tonnes to 36,000 tonnes. It was also now not possible for the waste to be rendered - due not only to the volume of the mixed material but also to the fact that the animal by-products had been mixed with the soil and stones. There was a risk of damage to the rendering machinery.
- As rendering was not possible, the available options appeared to be: first, removing the material to landfill; second, covering the ploughed field with additional material; or third, deep burial on site. A fourth option was to double-trench the affected area which would involve the excavation of the top foot of soil/animal waste from the surface of the fields and burial in a series of parallel 4ft deep trenches, dug across the fields, and the covering of the buried soil/animal waste by the soil excavated from the trenches. Broadly speaking, that is the solution which was favoured by the responsible officers and which was carried out by the Second Defendant’s contractors. The Claimants favoured a different solution which was to allow the land to lay fallow for a period of two years, which, they argued, would allow the material to decompose without any substantial risk to animal health, or indeed to public health. This solution was supported by the Claimants’ expert evidence.
- The First Defendant’s position was that maggot waste is a source of disease organisms that can be potentially harmful to any animal or bird that eats or comes into contact with it. The details of these concerns were set out in a letter from the local Ministry Divisional Veterinary Manager, Mr Watkin-Jones, on 23rd May 2000. That view was not shared by the Claimants’ expert witnesses, including, in particular, Professor Keevil, who in a report dated 23rd October 2000 stated that many of the micro-organisms in the list provided by Mr Watkin-Jones were already naturally present in the soil and he concluded –
- As already noted, it was “inversion of the land” by double trenching which was suggested as an option for the rectification of the problem on site.
- I now turn to the central document in these proceedings, namely the notice dated 19th July 2000, issued by the First Defendant. It is unfortunately necessary to set out the terms of this notice in some detail.
- The Notice was subject to a series of conditions A-F and was accompanied by a warning explaining what would be considered to be a breach of the terms of the notice.
- The First Claimant did not comply with the terms of the notice and no application was made in writing within seven days of service requesting a reconsideration of that notice.
- Shortly after the service of the notice, the Environment Agency notices were withdrawn, and quotations for the proposed work were received (the lowest being in the region of £25,000). On 21st August 2000 the Second Defendant gave notice to the Claimants’ solicitors that they intended to carry out the work required by the Notice, on the 4th September. It is this second decision which is the subject of complaint in the judicial review proceedings. Shortly after that decision the solicitors acting for the Claimants did make representations and indicated that there would be an application for judicial review. The Claimant’s solicitors alleged that the notices were ill-founded and excessive in their requirements “especially since other waste has been, at the request and with the approval of yourselves, the County Council and the Environment Agency, ploughed into other neighbouring lands.”
- A meeting was suggested to discuss matters and, in particular, to discuss the Claimants’ proposal “that the land should be left as it is, but not cropped, not ploughed and not used for the grazing of animals”. That proposal was rejected by the Second Defendant in a letter dated 6th September 2000 in the following terms:
- By letter dated 1st September 2000, written to the Claimants’ solicitors, the First Defendant explained why rendering and incineration were no longer suitable disposal routes, because the waste was now mixed with soil – and further explaining why burial of the waste on two of the five fields was a proportionate reaction to the problem.
- On 2nd October 2000, the Human Rights Act 1998 came into operation.
- It may now be convenient to turn to consider the expert evidence in a little more detail. As already indicated, the Claimants’ position as expressed in correspondence and supported by expert views was to the effect that the proposed works in the notice dated 9th July 2000 were unnecessary, excessive and disproportionate. I have already referred to Professor Keevil who made a statement dated 23rd October 2000. On the same day Mr Baker made a report. Mr Baker has over twenty-five years of experience of the movement of soils and the reinstatement of the land. In paragraph 5 of his report dated 23rd October 2000, upon which Mr Straker appearing for the Second Claimant places much emphasis, he said this:
- The Claimants also relied upon a report prepared by Mr Crick, a chartered surveyor specialising in rural estate and management, land use planning and rural development. His report deals with whether or not the maggot waste was attracting vermin, rodents etc. and whether or not there was any sign of rotting carcasses, etc on the land. His conclusion, taken from paragraph 33 of his report, was as follows:
- On 27th October there was a hearing of the application for permission to apply for judicial review before Mr Justice Sullivan who granted permission on the Human Rights Act grounds but refused permission on other grounds advanced on behalf of the Second Claimant.
- After the hearing the Defendants were engaged in a process of reconsideration of the scientific evidence and whether or not the restorative action was necessary.
- On 25th October Mr Jones distinguished between the two sites placing the current risk at Loscoe at a lower level than that at Bardon Farm. On 3rd November 2000, Mr Jones commented on the report of Professor Keevil, referred to above, and joined issue with some of his observations. The Second Defendant remained concerned that they were receiving conflicting expert advice and on 9th November the Second Defendant wrote to the First Defendant seeking detailed advice as to the necessity for the proposed action. As noted in the second witness statement of Susan Bolton, Head of Branch B of the BSC and Scrapie Division of the First Defendant, the Second Defendant was keen to clarify the evidence with regard to the need to intervene and carry out the remedial work and to be satisfied that it was proportionate to the risk. The letter from the Second Defendant dated 2nd November 2000 asks a series of questions calling for technical evidence which needed to be clarified, in particular asking whether there remained a significant risk to animal health. The letter said this:
- The reply from the First Defendant dated 21st November 2000 was firm and clear. The relevant passages include the following:
- The letter then continues to answer specific questions and, in response to Question 5, the writer, Mr Varley, Deputy Head of the veterinary team TSE’s Animal Waste and Animal Identification, says this:
- The Second Defendant then had a decision to make. It had to decide whether or not it would enforce the notice dated 19th July 2000 or, and this appears to be the only other option, take no enforcement action and allow the land to lie fallow, with the attendant difficulties of enforcement referred to in Mr Varley’s letter.
- A lengthy report was produced for consideration by the sub-committee and this was supplemented by addendum. Mr Bodnar, the Claimants’ then solicitor, accompanied by Mr Baker (referred to above) attended the meeting on 11th December 2000. Mr Bodnar had been given a copy of the report and invited to make written representations. Immediately prior to the commencement of the meeting Mr Bodnar handed in a note which was distributed to members of the sub-committee. That note summarised the observations and test trenching carried out by Mr Baker on the 10th December 2000 concluding, at paragraph 16:
- Although Mr Bodnar was invited to make oral representations to the sub-committee, he declined to do so.
- The sub-committee considered the proposed remedial work to be proportionate and decided to authorise the carrying out of the remedial work using the deep trench burial method.
- The claimants were informed of the Second Defendant’s decision in a letter dated 18th December 2000 and later informed of the intention for the works to be commenced on 15th January 2001.
- The works were eventually carried out with the interruption caused by the stay ordered by Mr Justice Elias.
- As already noted, the decisions under challenge in the judicial review proceedings were identified as 19th July 2000 and 21st August 2000. Mr Havers, representing the Second Defendant, submitted that evidence of facts, or of expert opinion, directed to events after the meeting of 11th December 2000 – which he accepts to be an operative decision for the purposes of the Human Rights Act 1998 – is irrelevant. Although the evidence may have been relevant to the injunction proceedings before Mr Justice Elias in January and February 2001, in my opinion the evidence cannot sensibly be relevant to the exercise of discretion, in relation to the Second Defendant. The difficulty is exemplified by the second statement of Professor Keevil dated 10th August 2001 in which he reports on his findings “following completion of the work carried out by and on behalf of the second respondent in these proceedings”. It is even more starkly revealed by the second witness statement of Mr Barrett, yet another expert – a chartered engineer who was instructed to carry out investigations in June 2001, again long after the works were completed in March. At paragraph 10 of his second statement, Mr Barrett says this:
- This, like several other passages in Mr Barrett’s report and in the other expert reports, is the language of negligence rather than the language of failure lawfully to discharge a public law duty, or exercise a public law discretion. I was not surprised to find that, by letter dated 26th July 2001, the Second Claimant’s present solicitors have indicated that civil proceedings for damages and “other appropriate remedies were being considered”. Mr Straker, for the Second Claimant, submits that the evidence as to what happened in relation to the land is important because it shows “outcome” rather than merely a prediction as to what would happen if the works were carried out. He points, for example, to the third report of Mr Baker dated 26th July 2001 which shows, as predicted, that, for example, “this land was never suitable for the works proposed for the reasons set out in my previous statements; the view which I formed then has now been confirmed.” Mr Baker now puts the costs for the reinstatement of land at Bardon Farm at £90,499, and for reinstatement of the land at Loscoe at £197,626.
- It is useful to step back for a moment at this point and consider the real nature of the Second Claimant’s complaint. Although he seeks to challenge the decisions taken in July and August 2000, his real complaint is that he should receive compensation, or damages, for the unnecessary (as he would see it) harm to his land. He wants his land reinstated, at the Defendants’ cost. Although the focus of the challenge has been on Article 6, and the alleged inadequacies of the procedures available to the Second Defendant, his main concern is whether or not Article 1 of the First Protocol requires the state to provide compensation in cases such as this – there being no existing mechanism for the payment of compensation/damages absent tortious behaviour.
- What does emerge from this overview of the factual background set out above is that there were differences of opinion being expressed by the experts advising the Second Claimant, and the experts at the First Defendant and at the Environment Agency (and also, of course, in the offices of the Second Defendant). In summary, the Second Claimant complains that he has been denied an opportunity – guaranteed to him by Article 6 of the European Convention for Human Rights - of access to an impartial and independent tribunal to resolve these factual differences.
- The Second Claimant’s case can be divided conveniently into four areas. First, alleged breach of Article 6. Second, breach of Article 1 of the First Protocol. Third, general errors of public law such as failure to take account of relevant material. Fourth, breach of Council Directive 90/667/EEC. I will address each of these topics in turn.
- Article 6
- The reason for the absence of any right of appeal is explained by Susan Bolton, referred to above, in paragraphs 7-9 of her second witness statement:
- Although the recipient of a notice does not have an appeal to an independent and impartial tribunal, he or she is not left without legal remedies. Applications could be made for permission to apply for judicial review and, further, such an application could be coupled with an application for an interlocutory injunction. Whether or not an injunction would be granted would, of course, depend on the circumstances and, as observed by Counsel representing the First Defendant before Mr Justice Sullivan, the injunction proceedings may in turn lead to a resolution of any factual disputes by an agreed, independent and impartial, arbitrator.
- In the course of his submissions, Mr Straker representing the Second Claimant accepted that there could be circumstances, for example where matters were urgent, where the absence of a right of appeal would not offend Article 6. He went on to submit that this was not such an urgent case, relying on the fact that it was not until January 2001 that the Second Defendant took action to enforce the notice served in July 2000. The fact that in this particular case there was such a delay – explained by the witnesses for both the First and Second Defendant - cannot undermine the conclusion that there will be cases, particularly where animal and public health is concerned, where the existence of an automatic right of appeal could have the effect of undermining the very purpose lying behind the service of the order.
- Whether or not judicial review, with or without additional remedies, is sufficient will depend upon a consideration of the speeches of the House of Lords in R (Alconbury) v Secretary of State for the Environment, Transport and the Regions and other cases [2001] UKHL 23, and [2001] 2WLR 1389, as recently applied by the Court of Appeal in R (McLellan) v. Bracknell Forest Borough Council, and another [2001] EWCA Civ 1510 – judgment delivered 16 October 2001.
- The Second Claimant’s case under Article 6, therefore, is simple and straightforward. Although the notice was directed to the First Claimant, enforcement has had an adverse impact on his land, has exposed him to additional costs and expenses and, if corrective action is not taken, there will be a permanent diminution in the value of his property. In those circumstances, he submits that there has been a “determination of his civil rights and obligations” and, in the absence of an appeal on the facts, he has been deprived of his entitlement to “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
- The First Defendant’s response is that the Second Claimant cannot rely on Article 6, or indeed on Article 1 of the First Protocol, at all, because the decision of the First Defendant – indeed the only decision of the First Defendant which is under challenge - was made on 19th July 2000 some time before the Human Rights Act 1998 came into force on 2nd October. If that time point does not avail the First Defendant, the First Defendant resists the Second Claimant’s claim under Article 6 on the basis that as the decision involved matters of public interest or policy, it was unnecessary for there to be more than an overall fair procedure with access to the court by the judicial review route. In addition, the First Defendant asserts that the Second Claimant has waived any rights which he may have had under Article 6 in particular by the failure to take up the opportunity to make representations given to the Second Claimant when the notice was issued. The First Defendant also relies on the Claimants’ failure to make representations as properly forming a basis for the Court, in the exercise of its discretion, to refuse any relief.
- Does Article 6 apply to any act or decision of the First Defendant in this case? Under the Animal By-Products Order 1999, Article 5(2), it is for the appropriate Minister to serve on the person in charge of any animal by-product a relevant notice calling for the disposal of the by-product by burning or by burial as may be specified in that notice. Article 31 makes clear that failure to comply with a notice may lead to an inspector making arrangements for it to be complied with at the expense of that person. Enforcement of the notice is by the local authority (see Article 33(2)). It seems to be reasonably clear from the evidence filed in these proceedings that the First Defendant’s involvement, in terms of operative decisions, was completed by 19th July 2000, when the notice was served. Thereafter, the First Defendant’s role, if that is the correct term, was to provide advice and assistance for the enforcing local authority. This is exemplified by the letter from Mr Varley dated 21st November 2000 referred to above. In the report to the Committee on 11th December 2000, it was made clear that the matter was brought to the sub-committee’s attention “for consideration of the exercise of the discretionary power (and not statutory duty) to carry out the remedial work, following the default on the party under notice”.
- I do not accept, as submitted by Mr Straker, that the Second Defendant was really acting as the agent for the First Defendant in deciding whether or not to carry out the remedial work.
- As already noted, the Human Rights Act 1998 did not come into force until the 2nd October 2000 – see The Human Rights Act 1998 (Commencement No.2) Order SI 2000/1851. In R v. Lambert [2001] UKHL 37 and [2001] 3WLR 206, the House of Lords decided that apart from the limited exception in Section 22(4) the relevant provisions of the Human Rights Act 1998 were not intended to apply to things happening before the date when they came into force and decisions of courts or tribunals made before that date were not to be impugned under Section 6 on the ground the court or tribunal had acted in a way incompatible with convention rights. See also R. v. Director of Public Prosecutions, ex parte Kebilene [2000] 2AC 326 and Wilson v First County Trust Ltd (No.2) [2001] 3 WLR 42, in particular the judgment of Sir Andrew Morritt V.C at page 51.
- Mr Straker’s response to the time point is that the court is here concerned with a set of proceedings initiated by the First Defendant, leading to the Second Defendant doing the work. There are according to Mr Straker, three stages in this process. First, the decision to serve the notice; second, the arrangement by the Minister for the Second Defendant to do the work; and third, the actual carrying out of the work by the Second Defendant. According to Mr Straker it is at that third stage when the civil rights of the Second Claimant are determined because it is at that point that his land is entered upon and his property interest interfered with. Mr Straker seeks to rely upon Section 22(4) of the Human Rights Act 1998 which I here repeat:
- Put shortly, Mr Straker’s argument is that the notice dated 19th July 2000 marked the commencement of the proceedings brought by or at the instigation of the First Defendant and, therefore, the Second Claimant can rely on Article 6 after the 2nd October 2000. Is the service of a notice under Article 5(2) of the 1999 order, the commencement of “proceedings” within Section 7 of the Human Rights Act 1998? Prosecutions brought by the Crown Prosecution Service are proceedings, see R v Lambert referred to above. However, I do not accept that the expression “legal proceedings” as defined in Section 7(6) of the HRA was intended to cover the mere service of a notice which if not complied with, may result “(a) in arrangements for compliance being made by an inspector at your expense; and/or (b) in prosecution.” The Second Claimant’s submission appears to me to confuse the term “legal proceedings” with “the unlawful act”. In my opinion, the service of the notice was certainly an act which may or may not have been unlawful but it was not “proceedings brought by or at the instigation of a public authority” within Section 22(4).
- Therefore, in my opinion Mr McManus is correct in his submission that the Second Claimant cannot rely on Article 6, or on Article 1 of the First Protocol, in relation to the decision of the First Defendant which was taken before the Human Rights Act 1998 came into force.
- The same analysis would apply to the decision of the Second Defendant made on 21st August 2000 to enter the land at Loscoe and Bardon Farm to carry out the works identified in the July notice. However, the Second Defendant does accept that the decision taken on 11th December 2000, after 2nd October 2000 was subject to the Human Rights Act 1998 and, therefore, it is necessary to consider Article 6 and Article 1 of the First Protocol.
- If I am wrong in my conclusion that the decision of the First Defendant which pre-dated 2nd October 2000 is not subject to a Human Rights Act challenge, I will also decide whether or not the decision was HRA compliant. I am satisfied that if the Notice had been served after the 2nd October 2001, Article 6 would have been engaged requiring some procedure whereby the lawfulness of the decision could be challenged.
- The Second Defendant accepts that the civil rights and obligations of the Second Claimant may have been determined by its decision on 11th December 2000, such as to engage Article 6 of the European Convention. By that time, of course, the decision to issue a notice under Article 5(2) of the 1999 Order had been made by the First Defendant and the Second Defendant was entitled to proceed on the basis that that notice was lawful. The essential question for me to consider is whether or not the legal challenges which were available to the Second Claimant were such as to demonstrate that the enforcement action taken by the Second Defendant in December 2000 (physically implemented in January and February/March 2001) complied with Article 6 – or perhaps more correctly put, did not involve the Second Defendant in acting contrary to the Second Claimant’s human rights as set out in Article 6(1).
- The Defendants rely upon the decision of the House of Lords in Alconbury referred to above. The Second Claimant accepts that the lack of an independent and impartial review does not, in itself, mean that there has been a breach of Article 6. It is clear from all the speeches in Alconbury that compliance with Article 6 is achieved where the original decision-maker complies with the requirements of Article 6 or the decision is subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees to be found in Article 6(1). As noted by Lord Hoffmann, at paragraph 87, “‘full jurisdiction’ does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires”. Mr Straker, for the claimant, submits that the nature of the decision under challenge in these proceedings requires access to an independent and impartial tribunal established by law so that any factual disputes between the Defendants’ experts and the Claimants’ experts can be resolved. At paragraph 53 of Alconbury, Lord Slynn stated that the judicial review court had jurisdiction to quash for a misunderstanding or ignorance “of an established and relevant fact”. However, the judicial review process is ill-suited to establishing facts and Lord Slynn’s observation merely extends error of law (by, for example, failing to have regard to a relevant consideration), to those facts which are not contentious, which are “established and relevant”.
- It seems to me from an examination of the speeches in Alconbury that their Lordships were influenced by the existence of an enquiry process conducted by an inspector who, in relation to the fact-finding process, was independent and impartial. The existence of such an enquiry was referred to by Lord Slynn (at paragraph 46) as a “procedural safeguard”. At paragraph 128, Lord Hoffman said this:
- At paragraph 152, Lord Clyde said:
- And at paragraph 157, Lord Clyde said:
- The Defendants, in response, submit that their Lordships did not draw a distinction between cases where facts were of importance and cases where there was a strong policy content. In any event, submits Mr McManus for the First Defendant, at the heart of this case there was no conflict as to relevant fact – for example, it was not disputed that carrying out the trench digging procedure would damage the existing drainage system. What was of central importance, according to the Defendants, was the reasonableness of the response to the facts and the reasonableness of the decision not to allow animal waste to remain spread over the land. Mr McManus goes further and submits that once it is accepted by the Second Claimant (as it is accepted) that the animal waste was “high risk material” within the meaning of the Council Directive 90/667/EEC, the competent authorities had no choice. Either the high risk material must be processed in a high risk processing plant approved by a member state in accordance with Article 4(1) of the directive or the high risk material must be disposed of by burning or by burial in accordance with the provisions of Article 3(2).
- There has already been some expression of judicial concern about the absence of procedural protections under the Animal Health Act regime. In April 2001, shortly before the decision of the House of Lords in Alconbury, in Westerhall Farms v Scottish Ministers (dated 25th April 2001) the Outer House of the Court of Session, at paragraphs 30 and 31, said:
- Although from that extract there are expressions of judicial concern, it is to be noted, and this is emphasised by the Defendants in these proceedings, that the court concluded that notwithstanding the absence of procedures or mechanisms to challenge the decision on its merits, not even a prima facie case had been made out in terms of contravention of the Convention. Further, in the instant case, there is a greater degree of formality than appears to have been the case under the Scots legislation.
- I was referred to a recent decision of Mr Justice Sullivan – R.(on the application of Vetterlein) v Hampshire County Council and Hampshire Waste Ltd [2001] EWHC Admin 560 (judgment, 14th June 2001). That decision has to be treated with some caution as it proceeded on the basis of a series of assumptions (see paragraph 20). However, the Defendants can draw some assistance from the following passages in the judgment:
- Although I can see considerable force in much of the analysis set out these extracts from the judgment of Mr Justice Sullivan, I find it difficult to accept that there is compliance with Article 6(1) where all that is provided in terms of safeguards is access to the very committee which makes the decision on the facts – even if that decision can, in turn, be challenged before the Administrative Court. If the proceedings of a Committee of a local authority (which must of course be procedurally fair in order to comply with common law, Wednesbury Corporation, requirements) can themselves provide the necessary element of fairness, even when it is clear beyond argument that the Committee is neither independent nor impartial, there is a danger that the Article 6(1) protections will be diluted to the extent that they add nothing of value.
- I am more persuaded by the reasoning in the decision, on the 6th July 2001, of Mr Justice Richards in R. (on the application of Alan Kathro and Others) v Rhondda Synon Taff County Borough Council [2001]EWHC Admin. At paragraphs 15 onwards, his Lordship subjected the decision in Alconbury to a detailed analysis. It is unnecessary to set out Mr Justice Richards’s judgment in great detail but I draw particular attention to paragraphs 28-32.
- His Lordship then went on in paragraph 31 to observe that the application was premature because it was not possible at that stage to decide whether there was any dispute as to primary facts. At paragraph 32, his Lordship says:
- On 31st July 2001, Mr Justice Moses, in R.(on the Application of Bewry) v Norwich City Council [2001]EWHC Admin 657 held that the decision of the City Council’s Housing Benefit Review Board was susceptible to judicial review because the Board lacked the appearance of an independent and impartial tribunal and, thus, contravened the claimant’s constitutional right to a fair trial. He said this:
- The decision of Mr Justice Moses in Bewry was doubted, at least in part, by the Court of Appeal in McLellan – see paragraph 75 of the judgment.
- I return now to Alconbury. Can it be said that their Lordships were there only concerned to deal with cases where there was an independent and impartial fact-finding body, such as an inspector, interposed between the original decision-maker and the judicial review court? Clearly the position of the inspector was of considerable, perhaps central importance, but certain passages in the speeches do suggest that the intention was to approve a judicial review approach to administrative decisions where there were at least some adequate safeguards in place to ensure that the overall procedure was fair. I have already referred to paragraph 87 in the speech of Lord Hoffman. In the next paragraph he continued as follows:
- In R (Friends Provident Life Pensions Limited) v. The Secretary of State for Transport, Local Government and the Regions, and others [2001] EWHC 820, Mr Justice Forbes identified the range or spectrum of types of issue which can arise in cases of administrative decision making, setting out three examples suggested by counsel for the Secretary of State, Mr Sales :
- At paragraph 93, Mr Justice Forbes considered the situation where the administrative decision maker was concerned with findings of fact – as to some present or future act. He said this:
- A similar approach to fact finding issues can be found in the decision of the Court of Appeal in McLellan v. Bracknell in the governing principles set out at paragraph 89:
- Is this case essentially a case concerned with the facts, or is it merely another example of the application of policy and expediency? The final sentence in paragraph 117 of Lord Hoffman’s speech seems to make the position clear – if there is a dispute as to the “findings of fact, or the evaluation of facts”, for example when looking at whether or not there had been a breach of planning control, then there will not be compliance with Article 6(1) in the absence of a full right of appeal to a Court unless there are acceptable safeguards in place. At paragraph 68 of the speeches in Alconbury, Lord Hoffman referred to the fact that planning cases involve general, social and economic issues and “the number of persons potentially interested is very large, and the decisions involved the consideration of questions of general welfare, such as the national or local economy, the preservation of the environment, the public safety, the convenience of the road network, all of which transcend the interests of any particular individual.”
- It was central to Mr Straker’s submissions, on behalf of the Second Claimant, that issues of fact are clearly relevant to the decisions under challenge, and that Article 6 is breached because there is no tribunal, expert or otherwise, and no Court with the necessary full jurisdiction, to carry out any fact finding role. Mr McManus, for the First Defendant, perhaps not surprisingly takes a contrary view, submitting that no findings of fact were material to the decision to issue the notice under Article 5(2) of the 1999 Order – see paragraph 9 of his Supplementary Submissions dated 24th October 2001.
- In this case many of the facts are not disputed, or are incapable of reasonable dispute. For example, there can be no doubt that the First Claimant allowed high risk animal waste to be brought onto the land, and, in defiance of notices served by the Second Defendant and the Environment Agency, spread that high risk waste over the land by incompetent ploughing, thereby mixing the offending material with stones, soil etc., such that it could not be processed. (There had been an issue as to the capacity of the First Claimant’s knacker’s yard to process the material, but, as already noted and entirely understandably, Mr Justice Sullivan did not grant permission to challenge that aspect of the decision.)
- The question at the end of the day for the First Defendant, and for the Second Defendant when the issue of enforcement came to be considered, was whether or not the land should be allowed to lie fallow with no remedial action, save perhaps, for some fencing of the land, or whether one of the methods referred to in the July 2000 notice should be undertaken to bury the offending material. The Second Claimant now raises additional factual issues by his proposed amendment in paragraph 27 and 28 of the Amended Grounds, in particular in relation to whether or not the land on which the burial of the animal waste to take place was “suitable so as to prevent contamination of water tables or any environmental nuisance”. That allegation is supported by expert evidence which was produced after the works were carried out in February/March 2001 and it is clear to me that this was not a factual issue which was before the First Defendant when the July 2000 decision was made or before the Second Defendant when the operative decisions were made in August 2000 and/or in December 2000. Indeed, they do not appear to have been raised in the course of the injunction proceedings before Mr Justice Elias in January and February 2001.
- So far as the First Defendant’s decision to issue the Notice in July 2000 is concerned, assuming it to be subject to an Article 6 challenge, it seems to be reasonably clear that there were very few material facts in dispute – it is very close to a decision based on agreed facts, but with a high policy/expediency element. That decision was made long before the Claimants produced expert reports to cast doubt on the reasonableness of the decision to ensure that the offending material was buried on the land. In relation to the Second Defendant’s decision to enforce the Notice, because of non-compliance by the Claimants, I accept that there is a higher fact content – but, it seems to me, that by December 2000, the decision was a combination of fact-finding and implementation of policy.
- In my opinion this is a case which, when considered in the round, does have a high policy/expediency content but, I am not satisfied that it was, or remains, “fact free”. In those circumstances, it is necessary, applying the reasoning of their lordships in Alconbury, and of Mr Justice Forbes in Friends Provident, to consider what procedural safeguards, if any, were in place which, when combined with the court’s powers on an application for an injunction and/or on an application for judicial review, would together satisfy the requirements of Article 6.
- In relation to the Notice of 19th July 2000, the only procedural safeguard was the opportunity to make representation requesting a reconsideration of the notice. That was certainly a safeguard but, without more, it seems to me that it is unlikely to be adequate. I cannot see any reason why there should not be within the Animal Health Act 1981, or at least within the 1999 Order, a right of appeal on the merits similar to that found in Section 161(c) of the Water Resources Act 1991, referred to earlier in this judgment. As with that section, provision could be made to ensure that a notice was not suspended pending any appeal where, for example, the First Defendant reasonably concluded that there was an imminent risk of harm to animal health and/or to public health. If such a system was in place the First Defendant’s officials could override any objections by the landowner, or the recipient of the Notice, and proceed to take all necessary action. However, such action would be taken at the First Defendant’s risk because a subsequent appeal may disclose that there was no factual basis for the concerns which led to the service of the Notice, and the taking of enforced action. A possible answer to this line of reasoning, although I should note that this has not been suggested in the evidence submitted by the First Defendant in these proceedings, is that such an appeal process, even if suspended in urgent cases, may have the undesirable effect of inhibiting necessary public action. Although I accept that such concerns may exist, they did not prevent the implementation of the scheme set out in section 161 of the Water Resources Act 1991 (which refers, among other things, to poisonous matter entering controlled waters), and I cannot see any reason why it would inhibit proper action in cases such as this. But, as I have already concluded, the decision of 19th July 2000 preceded the implementation of the Human Rights Act. I am not persuaded, nor was it argued before me, that there was a pre-existing common law right to access to an Article 6(1) equivalent tribunal to resolve any factual disputes between the Second Claimant and the First or Second Defendants (see however the decision of Mr Justice Moses in Bewry - supra).
- I turn now to the procedural safeguards, which were available to the Claimants, before the decision to enforce was taken by the Second Defendant on the 11th December 2000. These safeguards were more substantial than those in place before the First Defendant served the July 2000 Notice, but it is difficult to see how they can be compared with access to an independent and impartial fact finding tribunal such as an inspector in a planning enquiry case. The importance of the role of the planning inspector in deciding questions of primary fact, or reaching conclusions based on such facts was emphasised by Lord Hoffman in Alconbury at paragraphs 107 to 110. In paragraph 110 he said this:
- I emphasise the reference to “quasi-judicial”. It seems to me that if this term is to have any utility when considering fundamental human rights, then it must mean what it says – although not judicial, obliged to act as if judicial. The term is readily applicable to formal tribunals, or to inspectors, or arbitrators and the like, but I find it far less appropriate and useful if it is merely used, in this context, as meaning nothing more than “obliged to act fairly”.
- At this point in the analysis I turn to the witness statement of Councillor Powell, who chaired the meeting of the Second Defendant’s sub-committee on the 11th December 2000 when the decision was taken to authorise the necessary intervention to dispose of the animal by-products on the Second Claimant’s land. The witness statement casts some light on the question as to whether or not there was indeed any finding of facts by the sub-committee, which could be compared with the quasi-judicial determination by a body or person such as an expert planning inspector. I set out below extracts from paragraphs 4 to 9 of that witness statement:
- I have no doubt having read the evidence that the sub-committee did deal with this matter in a fair, detailed and conscientious manner. However, within those extracts from Councillor Powell’s statement is an assumption that there was “continuing significant risk to animal health”. That assumption is not surprising in the light of the advice received from MAFF and the Environment Agency, and indeed from the Second Defendant’s own officers. However, that assumption is not a “finding of fact” by an independent or impartial tribunal. It also runs counter to the expert evidence of Professor Keevil referred to above, in particular paragraphs 12, 15, and 16. Paragraph 16 says this:
- I am therefore driven back to a consideration of the Alconbury decision and whether or not, as submitted by both Defendants, there is a clear distinction to be drawn between those decisions which are administrative, deciding matters of policy, of expediency, and what is or is not in the public interest, and other decisions - whether administrative or judicial, or even quasi-judicial - which more directly affect individual’s rights and obligations. The First Defendant submitted that in a public interest/public category type of case it was legitimate for the administrator or policy maker to take the decision provided that the whole process, including the right of challenge to the Court complied with Article 6(1) but that it was not necessary for that right of challenge to embrace a full appeal on the facts. The Second Defendant’s submission was that “the Claimant’s protection under Article 6(1) is safeguarded by the availability of judicial review which is sufficient to consider the fairness of the decision making process of both MAFF and the Second Defendant, including a review of the facts and expert evidence relied upon by the decision makers. Thus the limitation on the right of access to a court by means of an appeal against the notice was fully justified” – Skeleton Argument, paragraph 13.
- The purpose behind the service of the notice in July 2000, the Second Defendant’s decisions in August and December 2000, and the entry onto the land to carry out the work in early 2001, was clearly based on considerations of animal health, with an additional element of concern for public health, and environmental protection. I accept, as submitted on behalf of the First Defendant, that there is no difference in principle between a decision not to grant planning permission because of environmental considerations and a decision to require the disposal of waste in a particular manner because of the same considerations. Both decisions involve the consideration of the public interest beyond that of the landowner in question. Here, it could also be said that the First Claimant brought this problem on his own head, and on the head of the Second Claimant his father-in-law and landlord. The central question for my determination is whether or not access to the court by way of judicial review proceedings and/or application for an injunction (coupled with any proceedings in negligence in the event of careless harm to the Second Claimant’s land) together with the limited procedural safeguards put in place by the First and Second Defendants in relation to the 1999 order and its enforcement, discharges the Defendant’s obligation not to breach the Second Claimant’s Article 6(1) rights. Or, put another way, and using the language of Article 6(1), am I satisfied on the evidence before the Court that the Second Claimant has had access to “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”, in order to determine his civil rights?
- There seems to me to be a tension between some parts of the speeches of their Lordships in Alconbury and the overriding principle that “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” - Artico v. Italy (1981) 3 EHRR1, at paragraph 33. As Lord Clyde said, at paragraph 159:
- Later in his speech, Lord Hoffman referred to the opinion of Mr Bratza (as he then was) in Bryan v. UK (1995) 21 EHRR 342. At paragraph 107, Lord Hoffman sets out the following passage from Mr Bratza’s opinion:
- Lord Hoffman then, as already indicated, went on to refer to the importance of the inspector in the review process. The question then becomes - is the power of judicial review in this case sufficiently wide to satisfy the requirements of Article 6 bearing in mind factors such as (a) the subject matter of the dispute, (b) the nature of the decision of the administrative authorities which is in question, (c) the procedure if any which exists for review of the decision by a person or body acting independently of the authority concerned and the scope of that power of review. Here, in my opinion, the subject matter of the dispute is of some importance - it is a decision related to public health (or at least animal health) where there is a clear and obvious need for prompt, indeed urgent, action in certain cases. Mr Bratza used the phrase “if any” when referring to the existence of review of the administrative body’s decision by a person or body acting independently - a person such as a planning inspector. It was clearly not Mr Bratza’s opinion, therefore, that the absence of such a person or body acting independently would inevitably lead to a breach of Article 6.
- In his speech in Alconbury Lord Clyde, having referred to Chapman v. UK (2001) 10 BHRC 48 and Kaplan v. UK (1980) 4 EHRR 64, said this (at paragraph 168):
- Notwithstanding my strong inclination towards a conclusion that even in cases affecting animal health and public health there should be a right of appeal against notices or orders, as provided in Section 161C of the Water Resources Act 1991, I am driven to the conclusion by the reasoning of the House of Lords in Alconbury, now strongly endorsed by the Court of Appeal in non-planning cases, in McLellan, that this is the type of case where access to a judicial review Court, with all its limitations, is adequate to satisfy the requirements of Article 6(1) of the Convention.
- In this particular case there are further indicators which would suggest that such a conclusion is correct. At the time of the decisions in July 2000, August 2000 and December 2000, there was very limited disagreement as to the facts between the Claimants’ experts and the experts within the various central government and local government departments. Further, the only real decision was whether or not the land was to be left to lie fallow or whether or not some form of burial process, such as deep trenching, was to be undertaken. Proceeding upon the basis that the animal waste on the land was high risk material within the terms of council directive 90/667/EEC the range of decisions open to the Defendants was extremely limited - indeed, it is at least arguable that there was no choice at all and that the only option was disposal by burial which had to be deep enough to prevent carnivorous animals from digging up the waste.
- Further, the chosen option was less expensive than all the other options apart from doing nothing and, in my opinion, was clearly proportionate. If there is then added into consideration the limited procedural safeguards which were available to the Second Claimant then, it is my conclusion that the scope of review in the instant case is sufficient to comply with the standards set by the European Court of Human Rights and, therefore, there is no violation of Article 6 of the Convention as set out in Schedule 1 to the 1998 Act.
- Returning to Councillor Powell’s evidence, it is unsurprising that the Committee concluded, even in the light of the submissions and expert reports by then lodged on behalf of the Claimants, that they were satisfied “that the remedial work on the land needed to be undertaken, and that the nature of the proposed work was proportionate to the end to be achieved”.
- There may well be cases where the factual dispute is so clear cut, and the consequences for the recipient of the notice, or an indirectly affected person such as the Second Claimant, so serious that nothing less than a full investigation of the case on the merits would do to satisfy the requirements of the Convention. In such circumstances, it may be necessary for the judicial review court to hear evidence and decide for itself which expert view is to be preferred. For a recent example, in the field of mental health, see R. (Wilkinson) v. The Responsible Medical Officer, Broadmoor, and another [2001] EWCA Civ 1545, where the Court of Appeal ordered cross examination of expert witnesses. This, however, is not such a case.
- If Article 6(1) was at least potentially breached, the First Defendant argued before me that the Claimants, including therefore the Second Claimant, had waived their rights under Article 6. To be effective a waiver must be unequivocal, must be made in the absence of constraint, and made in full knowledge of the nature and extent of the right - see Clayton and Tomlinson “The Law of Human Rights” at page 332 and following, particularly paragraph 6.161. Here, the only conduct to which the First Defendant can point is the failure by the Claimants to accept the First Defendant’s invitation to make representations. Reference is also made to the fact that Article 6(1) considerations were not raised until the hearing before Mr Justice Sullivan on the 27th October 2000, some time after the service of the notice on the 19th July. In my opinion there is nothing in this point. There is no evidence of an unequivocal waiver of any of the rights protected by Article 6. If, contrary to my conclusions above, I had decided that there was here a breach of Article 6 in relation to any of the three decisions made by the Defendants then I would not have refused relief in the exercise of my discretion on the basis of the claimed waiver.
- In conclusion, on the Article 6 issue, and assuming that both Defendant’s decision are subject to examination for compliance with the requirements of the Human Rights Act, my decision is that the combination of the (limited) procedural protections available before the administrative decision maker, and access to the judicial review court are sufficient in this type of public interest case for the purposes of Article 6. If I am wrong on that point, and Article 6 requires access to a full fact-finding procedure before an independent tribunal or court, the Claimants have not waived their right to such a process, nor should the Court exercise its discretion to refuse the Second Claimant relief on the basis that their has been a failure to take up the offer to make representations on the Notice.
- Article 1 of the First Protocol
- The Second Claimant contends that there have been here breaches of principles (a) and (b) set out above. At paragraph 53 of his skeleton argument Mr Straker lists the rights expropriated and/or interfered with as:
- Both Defendants reject the claim that there has been here expropriation or interference with the Second Claimant’s peaceful enjoyment of his land. Mr Havers, representing the Second Defendant, puts it as follows:
- Relying on R v. Secretary of State for Health, ex parte East Side Cheese Company [1999] 3 CMLR 123, Mr Havers submits that the maintenance of public health must be regarded as a very important objective and must carry great weight in the balancing exercise.
- In my opinion the evidence submitted in the case points to the conclusion that the court is here concerned with the third principle or rule derived from Article 1 of the First Protocol and that there has been no expropriation of the Second Claimant’s land, and no interference with his peaceful enjoyment of his land save, possibly, for a short period in February/March 2001 when the works were carried out.
- In paragraph 59 of his Skeleton Argument, Mr Straker, for the Second Claimant, submits that the effect of the actions taken by the Defendants has been “grossly disproportionate and economically punitive to an unjustifiable extent”. The full paragraph reads:
- I have considered the points raised by Mr Straker with care, and taken the opportunity of re-reading the evidence, and exhibits in the case. In the light of that evidence I accept the Defendants’ submissions that the works set out in the notice and as enforced by the Second Defendant were proportionate to the interference with the Second Claimant’s property. Apart from the “do nothing” option, which the Defendants were entitled to reject, the cost of the works as carried out was the least expensive. It is to be noted that although the cost of carrying out the works, approximately £25,500, could be claimed from the First Claimant, no claim for that money can be made against the Second Claimant. Any consequential damage to the land - which, on a sensible view was of poor quality and only fit for grazing - would be recoverable by the Second Claimant from the First Claimant for breach of the terms of the tenancy agreement between them. Further, I accept Mr Havers’ submission that the value of the land would have been substantially reduced if no remedial works were undertaken as it was contaminated with animal by-products, and remedial works to the land have only been necessary because of the spreading and ploughing in of the maggot waste in contravention of the notices served on the 20th April 2000. If those notices had been complied with, the land in question would have been unaffected.
- My one remaining concern on this aspect of the Second Claimant’s case relates to his assertion, supported by expert evidence, that the land is now of no use for agricultural purposes, and there is a need for the expenditure of sums of money which greatly exceed the value of the land. If there was a full investigation of the facts, with expert evidence called on all sides and subjected to detailed cross-examination, findings of fact favourable to the Second Claimant may be made, and the Second Claimant may then be able to argue that there has here been what amounts in fact to a deprivation of property or expropriation. If that was to be the decided factual position, then it is possible to conclude that it is some way removed from a planning case where landowners, or indeed non-landowners, are deprived of the opportunity of using land for a particular purpose. There may in such cases be losses in terms of wasted investment costs but there would rarely be destruction of the economic value of the land.
- In my opinion, judicial review, for all its strengths and even with the possibility of cross examination when the justice of the case demands it, is unsuitable for the investigation and determination of such complex, expert opinion based, disputes. The Second Claimant may complain that he has been deprived of the opportunity of calling his experts before an independent fact-finding tribunal or court, with full jurisdiction to award compensation.
- It is to be noted that Council Directive 90/667/EEC calls for remedial action in relation to high risk material which does include burial on site and, therefore, could affect the value of land, but provides no mechanism for compensation. The Directive, therefore, does not provide any basis for compensation. Neither the UK statute nor the regulations provide for compensation, and the common law, absent negligent breach of a duty of care, does not provide a route to a claim for compensation. In my opinion, it is unlikely that Article 1 of the First Protocol provides for compensation in a case such as this. However, if I am wrong, and breach of Article 1 of the First Protocol does lead to a claim in damages, the Second Claimant may be able to deploy his expert evidence in a straight forward private law civil claim, alleging that the Second Defendant has acted in breach of section 6(1) of the Human Rights Act 1998, and seeking an award of damages under section 8(1). That possible route may not produce the kind of sums which the Second Claimant alleges to be his losses, but it could lead to the recovery of some compensation.
- What this possible route shows is that it is not merely by judicial review that the Second Claimant can seek to establish breaches of the Human Rights Act. Indeed, in some factually complex cases, the private law route may be more suitable.
- Although I have expressed concerns in relation to this aspect of the case, my conclusion remains that, on the material which I have seen and considered, there is here no breach of Article 1 of the First Protocol. This is a case where the state – represented by the First and Second Defendants – was entitled to take action and control the use of the Second Claimant’s land in the public interest. It is accepted by counsel for the Second Claimant that the public interest could require speedy action. It follows that the public interest, in matters of animal and human health, could require intervention so that the necessary action is carried out by agencies of the state where the land-owner, here the Second Claimant, is either unwilling or unable to act. Here the facts are unusual in that, because the First Claimant had spread the maggot waste over the land, what was considered to be necessary was far more extensive and expensive than might usually be the case. Of course, such intervention must be subject to public law constraints, and the action taken must not be irrational, based on irrelevant factors, or disproportionate etc. I now turn to consider those principles.
- Proportionality/Irrationality/Failure to take account of relevant material
- It seems to me that the Defendants were also entitled to take into account, when rejecting the “do nothing” option that there could be difficulties of enforcement. The First Claimant had already shown himself to be capable of disregarding the content of notices served on him, and the Second Defendants did not act irrationally, disproportionately, or unfairly, in taking this factor into account.
- I have considered all the points made on behalf of the Second Claimant but have reached the clear conclusion that there was here no disproportionate action and no irrationality in classic Wednesbury Corporation terms.
- Before I leave the question of proportionality and irrationality I should refer to the application by the Second Claimant to amend, yet again, the grounds of challenge. In the course of oral argument I gave permission to make the various amendments set out in paragraphs 1 to 27(1) of the proposed amended document. The First and Second Defendants object to the amendments in paragraphs 27(2), 27(3) and 28 insofar as these amendments require additional evidence, expert or lay, which was not before the First and Second Defendants when they made their operative decisions in July 2000, August 2000 and December 2000. I disallow the amendments. It seems to me that these amendments are far too late and seek to introduce evidence which as already noted, is directed to supporting allegations of negligence in the execution of the works rather than to undermining, in public law terms, the decision to serve the notice and thereafter to take enforcement action. I do, however, allow the amendment in the first line of paragraph 27(2) - “the Defendants failed to take and/or act upon the appropriate expert advice.”
- It seems to me that that is an allegation which does not require additional evidence. I have considered the expert evidence which was before the decision making bodies at the relevant times and have concluded, contrary to this assertion, that they did take account of and indeed act upon expert advice which they had received which, in some respects, was contrary to the expert advice advanced on behalf of the Second Claimant.
- Breach of Council Directive 90/667/EEC
- If I am mistaken in refusing to allow these amendments then I am satisfied that the Defendants have an adequate response as set out in the fourth witness statement of Susan Bolton dated 31st August 2001 in which she describes with some care and in some considerable detail the steps which were taken, in particular by liaison with the Environment Agency, to ensure that there was no contamination of the water tables or any environmental nuisance. See also the fifth statement of John Hammond and the statement of Peter Rutherford employed by the Environment Agency.
- In summary, I accept the evidence of the Defendants that the suitability of the land was considered as part of the detailed decision-making process as to the method of disposal. Further, before the works were carried out, the Second Defendant’s contractor was given adequate information, and test bores were made at each site to assess the state of the land. It seems to me to be clear that the Defendants, particularly the Second Defendant, did have regard to the requirements of the Directive, and that there was a reasonable basis for the conclusion that the ground was “suitable”. There were of course additional constraints in that this was not a case of removing the animal waste and burying it on some other land, but rather a case of the waste being buried where it lay, spread across the Claimants’ land.
- Conclusion
INTRODUCTION:
Legislation:
The Ministers may make such orders as they think fit –
a) generally for the better execution of this Act, or for the purpose of in any manner preventing the spreading of disease;
b) in particular for the several purposes set out in this Act, and for prescribing and regulating the payment and recovery of expenses in respect of animals.
Recitals
Whereas, in order to avoid any risk of dispersion of pathogens, animal waste should be processed in an approved and supervised processing plant or disposed of in another suitable manner; whereas, in addition, animal waste associated with a high risk should be collected and transported directly to a processing plant designated by the Member State concerned; whereas, in certain circumstances, especially when this is justified by distance and time of transport, the designated processing plant could be located in another Member State.
Article 1
(1) This Directive lays down:
a) the animal and public health requirements for the:
(i) disposal and/or processing of animal waste in order to destroy the pathogens which might be present in such materials…
Article 2
For the purposes of this directive, the following definitions shall apply:
(1) Animal Waste – 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;
(2) High-risk material – animal waste referred to in Article 3 which is suspected of presenting serious health risks to animals or man;
(3) Low-risk material – animal waste other than that covered by Article 3, which does not present serious risks of spreading communicable diseases to animals or man; …
Chapter 2 - Rules concerning the processing of animal waste and the placing on the market of the final product
(A) High risk material
Article 3
(1) The following high-risk material must be processed in a high-risk processing plant approved by the Member State in accordance with Article 4(1), or disposed of by burning or burial in accordance with paragraph 2:
(i) animal waste containing residues of substances which may impose a danger to human or animal health; milk, meat or products of animal origin rendered unfit for human consumption by the presence of such residues; …
(2) The competent authorities may, where necessary, decide that high-risk material must be disposed of by burning or by burial where:-
- Transport to the nearest high-risk material processing plant of animals infected or suspected of being infected with an epizootic disease is rejected because of the danger of propagation of health risks,
- The animals are infected with or suspected of being infected with serious disease or contain residues which could constitute a risk to human or animal health and which could survive inadequate heat treatment,
- A widespread epizootic disease leads to a lack of capacity at the high risk material processing plant,
- The animal waste concerned originates from places with difficult access,
- The quantity and the distance to be covered does not justify collecting the waste.
Burial must be deep enough to prevent carnivorous animals from digging up the cadavers or waste and shall be in suitable ground so as to prevent contamination of water tables or any environmental nuisance. Before burial, the cadavers or waste shall be sprinkled as necessary with a suitable disinfectant authorised by the competent authority.
Part I - Interpretation and Scope
3. (1) In this Order, unless the context otherwise requires –
“animal by-products” means –
a) animal carcasses,
b) parts of animal carcasses (including blood), or
c) products of animal origin,
not intended for human consumption, with the exception of animal excreta and catering waste;
“high risk material” means animal by-products of the following description, or any material containing such by-products -
a) animal by-products which present a serious risk of spreading communicable disease to man or animals;
g) all animal by-products (other than hides, skins, hooves, feathers, wool, horns, blood and similar products) which are from animals (other than fish, crustaceans or molluscs), slaughtered in the normal way if either –
i) the animal by-product is not presented for post mortem and veterinary inspection; or
ii) during post mortem veterinary inspection, the animal by-product shows gross pathological lesions indicating disease communicable to man or animals.
j) animal by-products containing residues of substances which may pose a danger to human or animal health, or milk, meat or products of animal origin rendered unfit for human consumption by the presence of such residues.
(3) The provisions of this Order shall not apply in relation to –
a) hides, skins, shells, hooves, feathers, wool, horns, blood and similar products which are not used in the manufacture of feeding stuffs but shall apply to such products when originating from animals which show clinical signs of any disease communicable through that product to man or animals.
[Again, the Second Claimant accepted in submissions before me that the maggot waste with which these proceedings are concerned, was high risk material within the meaning of the 1999 Order.]
Part II - Disposal of high-risk and low-risk material
Scope of Part II
4. The provisions of this Part shall apply in relation to all high-risk and low-risk material
Restrictions on disposal of animal by-products
5. (1) Subject to the following provisions of this article, any person who has in his possession or under his control any animal by-product shall without undue delay consign it for or dispose of it by –
(a) rendering or part rendering in approved premises;
(b) incineration;
(c) burning other than in an incinerator, or burying, if –
(i) it is in a place where access is difficult or
(ii) the quantity of by-product and the distance to premises in which disposal is otherwise permitted under this Article do not justify transporting it;
(f) treatment at an approved knacker’s yard, or feeding to zoo, circus or fur animals, recognised packs of hounds or maggots farmed for fishing bait at premises registered under Article 13…
(2) If the appropriate Minister serves on the person in charge of any animal by-product a notice certifying that -
(a) ……
(b) the by-product contains, or is suspected of containing, residues or pathogens which could constitute a risk to human or animal health and which could survive rendering; or
(c) there is a lack of capacity at rendering premises or incinerators;
then that person shall, without undue delay, dispose of the by-product by burning or by burial as may be specified in the notice.
Burial of animal by-products
11. Any person burying animal by-products shall
(a) sprinkle them with a suitable disinfectant if this will help prevent the spread of disease; and
(b) bury them in such a way that carnivorous animals cannot gain access to them.
Compliance with notices
31. Any notice served under this Order shall be complied with at the expense of the person on whom the notice is served, and if it is not complied with, an inspector may arrange for it to be complied with at the expense of that person.
Enforcement
33. (1) …..
(2) Other than as specified in paragraph 1, this Order shall be enforced by the local authority.
Section 6 – Acts of Public Authorities
(1) it is unlawful for a public authority to act in a way, which is incompatible with a Convention right.
Section 7 - Proceedings
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by Section 6(1) may –
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
….
(6) in sub-section (1)(b) “legal proceedings” includes –
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
Section 22 - Short title, commencement, application and extent
(4) paragraph (b) of sub-section 1 of Section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that sub-section does not apply to an act taking place before the coming into force of that section.
Article 6 – Right to a fair trial
(1) In the determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
The First Protocol
Article 1 – Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
FACTUAL BACKGROUND
“Unfortunately, I bit off more than I could chew and my incinerator was not operating efficiently, so I was having to store the maggot waste on the land adjacent to the knackers yard. I covered it with manure from [the Second Claimant’s] dairy farm so that it wasn’t obvious. I also took some of it up to the land at Woodlinkin and piled it up, again with cow manure mixed in and covering it. It was these two piles of material which were the subject of notices issued on 20th April 2000 by the Environment Agency and the County Council. I had also taken some of the manure and maggot waste and spread it on the other land, which I rented at Woodlinkin. When the authorities found out about this [the Second Claimant] was hopping mad and ploughed in the manure and maggot waste which had been already spread on the land.”
“Mr Ridgeway [a Ministry Veterinary Officer] identified the material on the first field as a mixture of liquid slurry, manure and maggot waste which contained recognisable poultry material (claws and part of a leg) and red stained material with red maggots present. He identified the material in the second field as being slurry and manure type material which contained maggot waste and which Derbyshire County Council officials believed was spread by a muck-spreader. The second field also contained recognisable parts of pig and poultry carcasses such as skin, poultry feet, pig claws and a pig trotter. A further field was not inspected by a Ministry Veterinary Officer as it was not discovered by Derbyshire County Council until 10th April. However, I understand from council officials that this field had also been spread with a slurry/maggot waste mix, containing recognisable parts of animal carcasses. In a large heap on a further field, Mr Ridgeway identified maggot waste which appeared to have been there for some time and which contained recognisable pieces of pig and poultry carcasses, including a whole decomposing poultry carcass, poultry skin, spinal column, leg, wing, feet and bone, as well as fish bones, a pig’s jawbone a pig’s trotter, a decomposing front leg of a calf and skin with the attached tissue of either a pig or a calf.”
“It will be difficult to accept that their presence in the field in question was due to the incorporation of maggot waste, particularly in the presence of cattle manure and chicken litter”.
Professor Keevil continues:-
“Most pathogens would be considered to be dead within a one year period from introduction to soil and therefore pose little or no threat to animals and humans (Nicholson et al, 2000).Since the pathogens, if any, have been buried beneath the surface of the soil and the land is not open to public use, or for grazing animals, the inversion of the land would seem to be an extreme and unnecessary measure”.
Notice requiring the First Claimant to dispose of animal by-products
“I, the undersigned, an Officer of the Ministry of Agriculture, Fisheries and Food, being satisfied that you are in charge of animal by-products (“the Animal Waste”) deposited on (a) a field situated at Bardon Farm…and (b) a field situated at Hog Barn Lane and Woodlinkin/Loscoe…, in exercise of the powers conferred on the Minister of Agriculture, Fisheries and Food by Article 5(2) of the Animal By-Products Order 1999, and of all other powers enabling him in that behalf –
HEREBY GIVE NOTICE CERTIFYING that there is a lack of capacity at a rendering premises or incinerators for disposal of the Animal Waste by rendering, part-rendering or incineration for the reason that the Animal Waste has been ploughed into and mixed with soil on, the Fields.
AND THAT YOU ARE REQUIRED to dispose of the Animal Waste by burial in accordance with the particulars specified in Annex A to this Notice. Under Article 5.2 of the Animal By-Products Order 1999 you are under an obligation to comply with this Notice without undue delay.
FAILURE TO COMPLY WITH OR BREACH OF this Notice may result:
a) in arrangements for compliance being made by an inspector at your expense; and/or
b) in prosecution.
YOU MAY, by application made in writing delivered to me at the above-mentioned address within 7 days of this Notice being served on you, request a reconsideration of this Notice. Your application must specify the grounds, either as to fact or as to law, or as to both, upon which it is based. This facility does not affect your right to challenge or seek review of this Notice before any appropriate Court.
This Notice remains in force until it is suspended or revoked by a subsequent notice served on you.
Annex A - Particulars of Notice
Method of Disposal
Either (Method A)
Disposal by means of landfill by
(i) excavation of the top two feet of soil/animal waste from the surface of the fields and
(ii) transport of such excavated soil/animal waste to and burial at, a suitable licensed landfill site.
Or (Method B)
Disposal by means of burial on the fields by –
(i) excavation of the top one foot of soil/animal waste from the surface of the fields:
(ii) burial of such excavated soil/animal waste in a series of parallel four foot deep trenches dug across the fields and
(iii) coverage of the buried soil/animal waste by the soil excavated from the trenches to a depth of three feet.
Such other means as an inspector of Derbyshire County Council (“an Inspector”) may require, by notice in writing served on you.”
“I wish to clarify our position concerning a meeting to discuss these matters which you raised in your telephone conversation with Mr May on 25th July. I understand it was your wish to consider alternative methods of disposal outside those identified as Method A and Method B in the Notice. Your alternative might briefly be summarised as ‘leaving the land as it is’.
As we are not prepared to discuss such methods, it was agreed by both your Mr Bodnar and Mr May that there would be little point in a meeting at this stage”.
“In carrying out the work, the agricultural under-drainage system would be destroyed. The soil structure, which has been carefully built up through the aftercare period and subsequent agricultural use, would also be destroyed. Inferior quality/overburden would be brought to the surface, making normal farming practices impossible”.
In paragraph 6, Mr Baker then recommends ten steps to be taken if the work is carried out, including a suggested reinstatement of an agricultural under-drainage system and the importation of suitable soils to re-establish the agricultural usefulness of the land. Mr Baker suggests that reinstatement costs for the field, which he was considering, would be in the region of £78,000.
“In summary and by reference to my instructions… I confirm that ten holes were dug on the Order field but photographic records could not be taken. The holes were visually inspected and I found no signs of animal carcasses or discernible flesh in any of the holes. I examined the Order field over its surface and along some of the boundaries and found no evidence of holes dug by carnivorous animals. I found no materials, which would be attractive to carnivorous animals. All the samples of farmyard manure found and the manure in the heaps were clearly well rotted and decayed and there was no sign of any physical disturbance anywhere. In one small area of bare soil, I found at least two dozen bones and bone fragments, which I believe to be from chickens. I found a few bones on a very small area of the manure heap. All appeared to be clean. There were no signs of any physical disturbance to the bones or the surrounding area”.
“If the MAFF Technical and Policy views are now that the burial is no longer necessary, we will need to be able to refer to the report in public statements, and clearly we will need to explain the revised position of the County Council.
I note that you have some reservation and difficulty in our request for additional technical expert involvement, but I am advised that this is considered to be absolutely essential to enable the County Council to properly justify discretionary action.,”
“It is our firm view that the County Council should do the work, as originally specified, as soon as possible. We consider that the works as described in the notice of July 19th are still necessary and proportionate to the risks, and that other circumstances, such as enforceability, also needed to be taken into account.
We still endorse the technical view of Mike Watkin-Jones on the micro biological risks associated with the deposit of maggot waste on agricultural land, expressed in his correspondence of 23 May, 25 October and 3 November 2000. These risks still exist and are not diminished. His view expressed on 25 October in respect of Loscoe does not, in our view, make the burial in accordance with the notice disproportionate. Although the visible contamination is deemed to be less than that at Bardon Farm, there is still a real microbiological risk that needs to be addressed in an effective and enforceable way. The lack of appropriate action by the respondents to the notices served on them leads us to believe that to follow the line of fencing and leaving fallow the land at Loscoe is not a viable or enforceable option. This view is reinforced by Langton’s disregard of separate MAFF notices suspending the operation of his knacker yard and SRN incinerator…. Also we understand that as the public has access to this land by means of the footpath, barring that access might create other difficulties. We would not want people walking their dogs over such land where the maggot waste has not been effectively removed. We still believe that this course of remedial work is proportionate to the current risk, both at Bardon Farm and at Loscoe.”
“The operation of leaving the ground fallow and ungrazed for two years is not one that we consider appropriate, both from the risk to animal health and the question of enforceability which has already been addressed above”.
“Agreed the above exercise [the proposed trenching] will take months, be labour intensive, very costly and has probably not been considered in this detail by the council. An effective alternative is to fence the land at Loscoe, and cover it with soil/making material. This too would take some months but the maggot waste has been buried for the best part of a year now and MAFF has been careful not to suggest that there is imminent risk of harm”.
“In my opinion, the above evidence indicates the lack of competent supervision by an appropriately qualified engineer leading to an increased risk of ground contamination.”
The Grounds
Neither the Animal Health Act 1981 nor the Animal By-Products Order 1999 contain any provision which would allow an appeal against a notice to an independent or impartial tribunal. This is to be contrasted with other provisions dealing with public health and safety. For example, my attention was drawn to Section 161C of the Water Resources Act 1991, which provides for an appeal by any person on whom a works notice is served by the Environment Agency to the Secretary of State. (It is to be noted, however, that regulations made under that section may prescribe cases in which a works notice is, or is not, to be suspended until the appeal is decided – see Section 161C(4)(b)).
“7. The Animal By-Products Order 1999 does not contain an appeals procedure as such a procedure is considered impracticable, having regard to the subject matter and the objectives of the Order. The primary aim of the Order is to protect animal health. Where animal by-products are not handled in accordance with Order, or if they pose a particular health risk (e.g. diseased carcasses) there would often be a need to act immediately to remove the risk to animal and human health. In such circumstances, time is of the essence to ensure that the health of live animals, and possibly the public, is not put in jeopardy. An appeals procedure would prevent such a prompt action being taken, increasing the risk to animal and public health and potentially leading to the damage or destruction of other people’s property. It could also mean that MAFF would be open to legal challenge by the European Commission for failure to fulfil the United Kingdom’s obligations under the Treaty of Rome to enforce the Directive properly.
8. There is a balance to be struck between respecting the rights of the person who holds the animal by-products and the greater number of people whose animals' health is put at risk by them. For legislation made under the Animal Health Act 1981, this balance is tilted in favour of the latter. This is particularly true in the case of specific disease control legislation. For example, the recent outbreak of swine fever in East Anglia required the immediate slaughter of all the pigs on affected farms to ensure that the disease was contained. An appeals procedure would delay such action, allowing the disease to spread, and would thus undoubtedly have meant that ultimately a far larger number of pigs would have been destroyed.
9. Although there is no appeals procedure under the Animal By-Products Order 1999, it is unlikely that MAFF would ever serve a notice under the Order without the person on whom it is served being informed of the situation and given an opportunity to rectify it. In general, notices are only served after oral and written warnings have been given. It would only be if immediate action were required to remove a threat to animal and public health that such warnings would not be given. In this case, MAFF’s notice of 19th July 2000 was only served after Mr Langdon had failed to comply with the notices served by Derbyshire County Council and the Environment Agency on 20th April 2000. Because there is no other appeals procedure, MAFF also takes care to offer the opportunity to make representations wherever possible. The length of time allowed for such representations will depend on the level of risk imposed by the animal by-products and the time within which remedial action is considered necessary. In this case, the notice allowed 7 days in which representations should be made. However, Mr Langton did not take up this offer.”
“Paragraph (b) of sub-section 1 of Section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that sub-section does not apply to an act taking place before the coming into force of that section.”
Returning to Section 7(1)(b) it reads:
“A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by Section 6(1) may –
(b) rely on the Convention right or rights concerned in any legal proceedings
but only if he is (or would be) a victim of the unlawful act.”
The expression “legal proceedings” is defined by Section 7(6) of the Human Rights Act 1998 as including “proceedings brought by or at the instigation of a public authority”.
“The second strand concerns the facts. These are found by the Inspector and must be accepted by the Secretary of State unless he has first notified the parties and given them an opportunity to make representations in accordance with Rule 17(5) of the Town and Country Planning (Enquiries Procedure) (England) Rules 2000, SI 2000/1624. This is the point upon which, in my opinion, Bryan’s case is authority for saying that the independent position of the inspector, together with the control and fairness of the fact-finding procedure by the court in judicial review, is sufficient to satisfy the requirements of Article 6.”
“In the civil context, the whole process must be considered to see if the article has been breached . Not every stage need comply. If a global view is adopted, one may then take into account not only the eventual opportunity for appeal or review to a court of law, but also the earlier processes and in particular, the process of public enquiry at which essentially the facts can be explored in a quasi judicial procedure and a determination on factual matters achieved.”
“So far as the manner in which the decision will be taken is concerned, it is to be noticed that in each case there will be a public enquiry before an inspector. That will be an occasion for the exploration of the facts, including the need and desirability of the development. The enquiry will be regulated by rules whose broad intention is to secure fairness in the procedure. The eventual decision in the present cases is to be taken by the Secretary of State. A remedy by way of appeal or judicial review is available, and there may be opportunities for judicial review at earlier stages as indeed is demonstrated in the present appeals”.
“30. In relation to a fair hearing, which may well include the question of whether there is an effective right of appeal, there may well be difficulties with the procedures adopted in the process leading to the slaughter. These may, in an appropriate case, have to be the subject of closer judicial scrutiny than I have been able to apply in the urgent circumstances of this case. In particular, it must be a source of some concern that the 1981 Act prescribes no real procedures or mechanisms under which a decision to order the slaughter of animals takes place. For example, there appears to be little statutory guidance as to: (a) the appropriate form which notification of a potential order for slaughter should take; (b) the person to whom any representations resisting the order should be made; (c) the expertise of any person qualified to pronounce the order; or (d) the powers available to any persons authorised to carry out the order. Perhaps also of some significance, although the point was not developed in argument before me, there is no apparent need for any form of judicial warrant authorising the slaughter process. This may seem strange given the potential economic effect of the process on the persons in possession of the cattle.
31 In this case, however, it seems that the decision-maker was someone qualified to reach an informed view and one who took expert advice. The petitioners were allowed to make representations to him albeit that these were rejected after consideration. The respondents provided reasons for their decision to the petitioners. The petitioners were and are able to attempt to challenge the merits of the decision in this judicial process (see Bryan v United Kingdom (supra)). I do not therefore consider that a prima facie case has been made out here in terms of the Scots administrative law including Convention rights.”
(Paragraph 67) “ ………. Thus the question of a fair and public hearing does not arise, but even it did it should not be assumed that arranging a public inquiry would have been the only way in which such a hearing could have been provided.”
(Paragraph 68) “The special meeting was held in public. The agenda was available to members and to the public beforehand. In deciding whether there has been a breach of article 6(1) the procedures have to be looked at in their entirety, including the earlier opportunities to make representations during the consultation process and the subsequent right to seek relief by way of judicial review if the Council errs in law. A ‘fair’ hearing does not necessarily require an oral hearing, much less does it require that there should be an opportunity to cross-examine. Whether a particular procedure is ‘fair’ will depend upon all the circumstances, including the nature of the claimant’s interest, the seriousness of the matter for him and the nature of any matters in dispute ……”
(Paragraph 70) “……… As summarised in the report, the disputes are not really disputes about facts, but disputes about the implications which should be drawn, in policy terms, from the available facts. ……. [Mr Watson and Mr Barrowcliffe] are not in dispute about the underlying data. They disagree as to the conclusions to be drawn from the data. These are very much questions of professional judgment and I can see not reason why they could not have been adequately explored in written representations following publication of the environmental statement.
(Paragraph 71) “Given the nature of their interest and the nature of the points in issue, the opportunity to make detailed representations during the public consultation process and to address the committee, I am satisfied that even if article 6(1) did entitle the claimants to a fair and public hearing, the procedures adopted by the County Council when looked at in totality did afford them just that opportunity.”
“28. Looking at the overall tenor of the speeches in Alconbury and at the underlying decisions of the Strasbourg Court, however, I accept that the finding that the Secretary of State’s decision-making process was compatible in principle with Article 6 was based to a significant extent on the fact finding role of the inspector and its attendant procedural safeguards. By contrast, there is no equivalent in the decision-making process of a local planning authority. That process includes a right to make representations and to submit evidence, and persons may be heard orally at a meeting of the relevant committee. But there is nothing like a public inquiry, no opportunity for cross-examination and no formal procedure for evaluating the evidence and making findings of fact. The report of the planning officer to the committee generally contains an exposition of relevant facts, including any areas of factual dispute, but does not serve the same function as an inspector’s report. In general there will be no express findings of fact by the committee itself. All of this considerable reduces the scope for effective scrutiny on the planning decision on an application for judicial review. It makes it more difficult, if not impossible, to determine whether the decision has been based on a misunderstanding or ignorance of an established and relevant fact, or has been based on a view of the fact that was not reasonably open on the evidence.
29 For those reasons, there is in my view a real possibility that, in certain circumstances involving disputed issues of fact, a decision of a local planning authority which is not itself an independent and impartial tribunal might not be subject to sufficient control by the court to ensure compliance with Article 6 overall.
30 As in Alconbury, however, the issue in the present case is not whether a particular decision might be in breach of Article 6, but whether the procedures are such as to lead inevitably to a breach of Article 6. If at the end of the day there was no factual issue, or any factual issue were one in relation to which, in the particular circumstances, the court was able sufficiently to adjudicate, then there would be no relevant gap in the court’s supervisory jurisdiction and no breach of Article 6. As the court said in paragraphs 45 and 47 of its judgment in Bryan, in assessing the sufficiency of judicial review –
‘….it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.
………
In the present case, there was no dispute as to the primary facts. Nor was any challenge made at the hearing in the High Court to the factual inferences drawn by the inspector, following the abandonment by the applicant of his objection to the inspectors reasoning under Ground (b). The High Court had jurisdiction to entertain the remaining grounds of the applicants appeal, and his submissions were adequately dealt with point by point.’”
“The claimant’s pre-emptive strike on the grounds that the procedure is inherently in breach of Article 6 or will inevitably give rise to such a breach cannot succeed. Whether judicial review is adequate for the purposes can only be assessed in the light of an actual decision and by reference to the particular grounds, if any, upon which it is sought to challenge that decision.”
“53 The resolution of the question in the instant case must depend upon the adequacy of scrutiny which this court is able to undertake in the light of the issues in dispute. Limited review of the facts which this court can undertake is only acceptable if there are sufficient safeguards in place to ensure independent judgment and procedural fairness: see Lord Hoffman at paragraph 117 in Alconbury and at paragraph 128…..
59 At the heart of the cases of Bryan and Alconbury lay the distinction between the fact-finding function of an inspector and his service to the Secretary of State in furtherance of his policies. It was only in the latter respect that it could be said that the inspector lacked independence and impartiality. Once it was accepted that there was no such lack of independence in an inspector’s fact-finding function, and that prescribed procedures ensured fairness, then the limited jurisdiction of the court to review facts could be seen to be acceptable.
60 The combination of the position of the inspector, the very nature of whose profession requires an independence of approach in relation to the findings of fact, and the fairness of the prescribed procedures avoid any risk that the apparent lack of independence and impartiality might take to the decision. The same cannot be said of councillors determining a dispute of fact in respect of which the council is one of the parties”.
“88 This emerges most clearly from the decisions on the English planning cases, which I shall analyse later in some detail. But the leading European authority for the proposition that it is not necessary to have a review of the merits of a policy decision is Zumtobel v Austria (1993) 17 EHRR 116. The Zumtobel partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austrian Vorarlberg. The appropriate government committee heard their objection to confirm the order. They appealed to an administrative court, which said that the government had taken proper matters into account and that it was not entitled to substitute its decision for that of the administrative authority. They complained to the Commission and the European Court of Human Rights that, as the administrative court could not ‘independently assess the merits and the facts of the case’, it did not have ‘full jurisdiction’ within the meaning of the Albert and Le Compte formula. The European Court of Human Rights said at paragraph 32 that its jurisdiction was sufficient in the circumstances of the case: ‘Regard being had to the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency and to the nature of the complaints made by the Zumtobel partnership’ ”.
and at paragraph 117:
“If, therefore, the question is one of policy or expediency, the ‘safeguards’ are irrelevant. No one expects the inspector to be independent or impartial in applying the Secretary of State’s policy and this was the reason why the court said that he was not for all purposes an independent or impartial tribunal. In this respect his position is no different from that of the Secretary of State himself. The reason why judicial review is sufficient in both cases to satisfy Article 6 has nothing to do with the ‘safeguards’ but depends upon the Zumtobel principle of respect for the decision of an administrative authority on questions of expediency. It is only when one comes to findings of fact, or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal.”
“(i) the decision may depend on the administrative decision maker making a finding as to some present or future act – typically in enforcement proceedings (see Lord Hoffman in Alconbury at paragraphs 90, 95 and 117);
(ii) the decision may depend on the administrative decision maker making a judgment as to the progress or outcome of some future event or events: e.g. the impact of a particular development on a particular locality; or
(iii) the decision may be based by the administrative decision maker on purely planning grounds” – see paragraph 89.
“As it seems to me, this [i.e. paragraph 117 of the speech in Alconbury] is a reference by Lord Hoffman to the type of dispute which requires the making of findings of primary and immediate fact by the administrative decision maker – findings which are needed to resolve substantial issues of fact in the dispute in question, which issues have to be resolved in order to make the decision which will determine that dispute. In my view, it is that sort of dispute which typically comes within Mr Sales’ category (i). I accept that the ‘safeguards’ of the quasi-judicial process of a public inquiry before an independent inspector may well be needed in such a type of investigation, if the High Court’s power or review is to be sufficient for the purposes of Article 6. However, I do not believe that there is an absolute rule of law to that effect, although it may be difficult to think of exceptions to it. In my opinion, each case must be judged upon its own facts when deciding, in any particular case, whether the High Court’s power of review is sufficient to make the overall ‘composite process’ Article 6 compliant – i.e. to decide whether the High Court has ‘full jurisdiction’ for the purposes of Article 6.”
“(1) it is relevant whether findings of fact are material to the decision;
(2) if findings of fact are material to the decision, that will not finally determine whether judicial review provides a remedy in compliance with Article 6;
(3) if the facts have themselves been found by an ‘expert tribunal’ sufficiently independent to make it unnecessary for the court to have a broad jurisdiction to review those decisions of fact that is likely to lead to the conclusion that judicial review is sufficient”.
“The Inspector was no mere bureaucrat. He was an expert tribunal acting in a quasi judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact.”
“4. Mr Hammond [Assistant County Public Protection Officer] presented his report at some length and emphasised that the question of whether the remedial work should proceed was at the discretion of the sub-committee. Mr Bodnar [the Claimant’s solicitor] was invited to make oral representations to the sub-committee but he declined to do so. When Mr Bodnar and Mr Baker [the Claimants’ expert witness] had left the meeting the sub-committee discussed the matter further in private and was provided with written legal and Human Rights Act and financial advice and oral legal advice by Simon Hobbs who was, at that time, one of the council’s most senior solicitors.
5. Mr Hobbs made it clear to the sub-committee that we had to be satisfied that the remedial work on the land needed to be undertaken and that the nature of the proposed work was proportionate to the end to be achieved. I was aware that the question of human rights had been raised in the High Court and I recall that Mr Hobbs made reference to a textbook on the Human Rights Act and read out passages dealing with the concept of proportionality. Mr Hobbs explained the concept and made particular reference to the case of Soering v. United Kingdom in which the European Court of Human Rights had said that “inherent in the whole of the Convention is a search for the fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals’ human rights”.
6. I recall that Members and Officers discussed alternative forms of remedial work including the alternative of the land being fenced off and left fallow for a period of time; the sub-committee was satisfied, particularly in the light of the advice from MAFF which was set out in the report, that there were no realistic alternative options.
7. The sub-committee also discussed with officers the note, which had been produced by Mr Bodnar. The note questioned the feasibility of the proposed remedial work. We were advised that the contractor was satisfied that the work could go ahead in spite of the wet conditions on the land and that the contractor would be informed of all of the points raised in the note before commencing work. …
8. In these circumstances and in view of the continuing significant risk to animal health, the sub-committee considered that the proposed form of remedial work was necessary and proportionate.
9. The sub-committee meeting lasted for almost one hour and I consider, as chair of the sub-committee, that we dealt with the matter in a fair, detailed and conscientious manner.”
“In summary, there are many confounding factors that make it impossible to clearly identify a serious risk due to the incorporation of the maggot waste alone. The field could be considered as providing no more risk than others where animal wastes, not covered by the Animal By-Products Order 1999, are spread onto land or are being continually grazed by livestock with the potential to shed microbial pathogens in their faeces.”
“Planning matters are essentially matters of policy and expediency, not of law. They are primarily matters for the executive and not for the courts to determine. Moreover as a matter of generality the right of access to a court is not absolute. Limitations may be imposed so long as they do not so restrict or reduce the access that the very essence of the right is impaired (Tinnelly & Sons Limited v. UK (1998) 27 EHRR 249 at 271, paragraph 72)”.
At paragraph 73 and 74 Lord Hoffman referred to the importance of the rule of law. He said this:
“When ministers or officials make decisions affecting the rights of individuals, they must do so in accordance with the law. The legality of what they do must be subject to review by independent and impartial tribunals. This is reflected in the requirements in Article 1 of Protocol 1 that a taking of property must be ‘subject to the conditions provided for by law’. The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament. But this is not the occasion upon which to discuss the limits of judicial review…”
“It appears to me that the requirement that a court or tribunal should have ‘full jurisdiction’ cannot be mechanically applied with the result that, in all circumstances and whatever the subject matter of the dispute, the court or tribunal must have full power to substitute its own findings of fact, and its own inferences from those facts, for that of the administrative authority concerned. Whether the power of judicial review is sufficiently wide to satisfy the requirements of Article 6 must in my view depend on a number of considerations, including the subject matter of the dispute, the nature of the decision of the administrative authorities which is in question, the procedure, if any, which exists for review of the decision by a person or body acting independently of the authority concerned and the scope of that power of review.”
“It is also of significance that as a matter of generality the State parties to the Convention treat a limited review as an appropriate remedy in administrative matters. … The Commission [in Kaplan] noted that the limit to control the lawfulness of the decision was fairly typical of many of the contracting States, and indeed the scope of protection afforded under Article 173 of the Treaty of Rome was similarly limited. The Commission observed (at paragraph 161 in Kaplan):
‘An interpretation of Article 6(1) under which it was held to provide a right to a full appeal on the merits of every administrative decision affecting private rights would therefore lead to a result which was inconsistent with the existing, and long standing, legal position in most of the Contracting States’.”
It is common ground between the parties, and well settled in Convention case law, that Article 1 of the First Protocol comprises three distinct parts namely
(a) the principle of the peaceful enjoyment of property;
(b) the principle that the deprivation of property must be in the public interest and subject to the conditions provided for by law and subject to the general principles of international law; and
(c) the principle that States are entitled to control the use of property in accordance with the general interest and to secure the payment of taxes or other contributions or penalties.
“(a) the Second Claimant’s right to the peaceful enjoyment of his land;
(b) the Second Claimant’s right to exclude the world;
(c) the Second Claimant’s right as a farmer to put his land to economic use as agricultural land and profit from it.”
At paragraph 55 he continues:
“Furthermore, the effect of the works carried out as a result of the notice has been to render the Second Claimant’s reversionary interest without value or viable use for agricultural or other purposes. The disturbance of the soil profile and destruction of natural and artificial drainage systems has created a statutory nuisance and a nuisance at common law, especially in respect of the land at Bardon Farm. The effect of the notice has been to deprive the Claimant of the use of his property and therefore constitutes an expropriation of his property. Alternatively, the use of his property has been interfered with and curtailed.”
“This case is concerned with the third rule. This is important because whereas compensation is generally required before the State may justifiably deprive a citizen of his property, there is no such general requirement where the State controls the use of a citizen’s property. However, the interference must still be justified as being necessary in the general (i.e. public) interest and must be proportionate. The Second Defendant submits that service of the notice and its subsequent enforcement were necessary and proportionate in the public interest to prevent risk to public and animal health.”
In relation to the actions of the First and Second Defendants, it is noteworthy that the only consideration which appears to have played a part in their considerations is risk to animal health. While it is accepted that this is a relevant consideration, it is not the sole consideration. In specifying burial by parallel trenching to a depth of four feet, it was clearly relevant to consider what the effect on the land would be of the proposed works. This would seem to have been omitted from the Defendants' considerations. However, given the invasion of the Second Claimant's rights and interests, it should have been taken into account as a matter affecting proportionality. Other matters which also appear to have been left out of account are whether the proposed works would achieve the desired aim (which, it is assumed, was the elimination of all risk to animal health), whether those works were the minimum necessary to achieve that aim and whether the burden which would be imposed on the Second Claimant was necessarily onerous. As the works have created significant environmental nuisances, have sterilised the land and rendered it valueless, the Second Claimant submits that the effect of the Defendants' actions has been grossly disproportionate and economically punitive to an unjustifiable extent.
It is unnecessary to repeat the facts or to set out the submissions made on these topics on behalf of the Second Claimant or by the Defendants. In my judgment it is clear that the First and Second Defendants were entitled to conclude, on the information available to them, that the option of allowing the land to be fenced off and left fallow for a period of time was an unacceptable option in terms of animal health and indeed in terms of general environmental impact considering that there was a public footpath crossing one of the fields. I also accept that when taking action under Article 5(2) of the 1999 Order the First Defendant was entitled to take a precautionary approach. As noted by Mr McManus in paragraph 35 of his Skeleton Argument “if MAFF had not issued the notice, the Claimants would have been under a duty to comply with the 1999 Order, which would have required them to dispose of the waste in one or other of the ways suggested prescribed by Article 5(1). The Claimants have not suggested (because they cannot) that there is any other way within Article 5(1) which would have been available to them and which would have been less onerous than the means of disposal prescribed by the Notice.”
In paragraph 27(3) and paragraph 28 the Second Claimant seeks to rely on Article 3(2) of Council Directive 90/667/EEC claiming that the Defendants acted in breach of that Directive because the land on which burial of the waste material was required was “not suitable so as to prevent contamination of water tables or any environmental nuisance”. Having reconsidered the documents, which were before the decision-making bodies, it seems to me that this was not an issue and was not raised by the Second Claimant.
For all these reasons I conclude that even if the Second Claimant can raise Human Rights Act arguments against the First Defendant, I dismiss the Second Claimant’s claim for a judicial review of the First Defendant’s notice dated the 19th July 2000 and the Second Defendant’s decision made on or about the 21st August 2000 to enter the land at Loscoe and Bardon Farm to carry out the works identified in that notice. For the avoidance of doubt, I reject or dismiss the application for judicial review insofar as it is directed at the Second Defendant’s decision dated the 11th December 2000 and/or the actual implementation of that decision which took place in January and February/March 2001.
THE DEPUTY JUDGE: For the reasons set out in the judgment handed down, this application for judicial review is dismissed.PRIVATE
MR MCMANUS QC: My Lord, in the light of your Lordship's judgment I would ask for the costs of these proceedings. My Lord, this is an application for a detailed assessment of the costs in view of the length of proceedings.
My Lord, there is one additional matter that I should draw to my Lord's attention. As my Lord will recollect there were interlocutory proceedings in front of Elias J and those proceedings, as my Lord will recollect, resulted in the application for the interlocutory injunction being dismissed and an order for costs in favour of, inter alia, DEFRA. I am told this morning that the order for costs was for a summary assessment of costs, if they were not agreed.
My Lord, the costs have been submitted to the previous and current solicitors representing the applicant. I am told they have not been agreed. My Lord, I do not ask my Lord to summarily assess them today. I simply ask that any order for costs includes a detailed assessment of those costs as well and to that extent the order of Elias J is varied. My Lord, those are the applications I make today from your Lordship's judgment.
THE DEPUTY JUDGE: Thank you.
MR COLE: My Lord, I make similar application in respect of the second defendant's costs of the main action. I also make the same application in respect of the order of Elias J in February of this year, that that order being costs summarily assessed by Elias J on the papers, if not agreed. That has in fact not occurred. There has been no agreement. A letter was sent to the court requesting consideration of the matter and I understand that the claimant's solicitors wrote to the court inviting the matter to be put off until this hearing.
THE DEPUTY JUDGE: Do I have a copy of the order of Elias J in the core bundle or in the main bundles?
MISS CARRINGTON: Page 142, my Lord.
THE DEPUTY JUDGE: Yes, thank you very much.
MR COLE: The only other matter which I would raise is in respect of the costs of the second application for permission referred to as JR2 in the second defendant's skeleton argument. Those proceedings were discontinued by notice the day before the trial of this matter. Although the matter never reached the permission stage, clearly the second defendant's solicitors and counsel had to address their minds to them in view of the very late discontinuance of the matter. The second defendant would be entitled automatically for an order for costs on discontinuance, however, I would ask that in relation to those costs that they be assessed on an indemnity basis, rather than the standard basis on the ground of the very late discontinuance the day before the trial of the matter.
My Lord, in relation to the costs of the main action, I would submit that it is appropriate that the second defendant receives its costs. Clearly, there were two decisions being appealed against and, therefore, it was quite appropriate, in my submission, for the first and second defendants to be separately represented.
THE DEPUTY JUDGE: Yes, thank you, Mr Cole. Miss Carrington?
MISS CARRINGTON: My Lord, in relation to the issue of costs in principle, of course, I cannot oppose my learned friend Mr McManus' application. In relation to the applications of the Council, the second defendant, they are, of course, second respondent and, therefore, my Lord has to consider to what extent their presence here was necessary in order to contest a separate issue. Whilst we accept that there was a degree of separation of the issues, in the sense that there were two decisions appealed against, they were part and parcel of the same matter which was the enforcement pursuant to the notice of 19th July and, therefore, I simply raise the Bolton issues for my Lord to consider.
I have no objection whatsoever to the application for a variation of the order of Elias J to make the order of the 20th February an order for a detailed assessment of the costs.
In relation to my learned friend's application for indemnity costs in relation to what he calls JR2, which was discontinued at a late stage, we accept, he does not cite any authority in relation to his proposition that he is entitled to his costs on an indemnity basis. My Lord may recall that JR2 related to the decision at various stages of the proceedings to go on to the land and carry out the work. It was very much subsumed both in the application of 20th February on which Elias J made no order and, indeed, by the time we had come to argue the matter before my Lord in September, of course it was utterly irrelevant since there was entry on the land to carry out the works in any event and that was something which influenced my clients' decision to withdraw the application in respect of judicial review number 2. And, therefore, I would oppose the unusual application that those costs be on an indemnity basis, although I would accept that having discontinued we are liable for those costs.
THE DEPUTY JUDGE: Where did the additional, fairly late, expert material come in? Did that relate to, let us call it, JR1 and JR2, or just JR1? I was not quite clear.
MISS CARRINGTON: My Lord, it really related just to JR1 and then it incorporated in the passage of events after the work had been carried out on, if I can say colloquially, a 'I told you so' basis.
THE DEPUTY JUDGE: So it was part of the proposed amendments as well to the JR1.
MISS CARRINGTON: To JR1, that is correct.
THE DEPUTY JUDGE: Thank you. Is there anything else you wanted to say on costs?
MISS CARRINGTON: I do have an application for permission.
THE DEPUTY JUDGE: Could we leave that until we have resolved the costs position?
MISS CARRINGTON: My Lord, of course.
THE DEPUTY JUDGE: Mr Cole, you are a second defendant. The House of Lords in Bolton has said a few things about whether or not there should be two sets of costs. Why should you have your costs as well as the first defendant?
MR COLE: My Lord, the primary ground being that in respect of the applications, these were two entirely separate decisions and as appears clear from your Lordship's judgment, merited separate consideration, those of DEFRA being made prior to 2nd October. That submission, on behalf of DEFRA, to assert that the Human Rights Act did not apply left Derbyshire County Council firmly in the frame, if I can put it that way, and therefore, in those circumstances, I would submit it is entirely appropriate, and indeed absolutely necessary, for Derbyshire County Council to be separately represented. It was essentially a conflict between DEFRA and Derbyshire in that DEFRA's stance was turning your Lordship's attention to the later decision to enforce, and as your Lord claimed in the judgment, it is accepted that Derbyshire has to exercise separate discretion as to whether to enforce the decision and that was a matter which only Derbyshire could address argument to this court over.
THE DEPUTY JUDGE: What I would want to avoid is the prospect of the claimant paying twice for the same response and I am not sure what powers the costs judge has to ensure that there is not double recovery, not double recovery, it would be separate recovery but double payment. If there is a mechanism that the costs judge can exercise then I would hope that that could be exercised. But I am not aware of any particular rule which would allow him to do that.
MR COLE: No, I cannot assist with any particular rule. Your Lordship could express certain comments which could be passed on to the costs judge. However, I would submit that in looking at the question of whether the claimant is paying twice for the same work, essentially much of the case and, indeed, your Lordship's judgment, has resolved around the second defendants' actions and, therefore, I would submit that it would be inappropriate if, following the general rule, the costs order was made solely in respect of the first respondent simply on the ground that they happened to be named first in the original application.
THE DEPUTY JUDGE: Thank you very much, Mr Cole. On the issue of costs, having considered the submissions made by representatives of all parties and bearing in mind at all times the caution expressed by the House of Lords in Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 1 WLR 1176, it seems to me that this is a case where the unsuccessful claimant should pay the costs of both defendants, those costs to be allowed with a detailed assessment to include the costs ordered to be paid by Elias J in his order dated 20th February 2001.
I do have a concern that there should not be double payment and in so far as there is any overlap, and I am not sure that there is any at all, but in so far as there is any overlap no doubt the costs judge will keep a careful eye on the applications for detailed assessment when they are put before him or her.
There is a separate application for costs on an indemnity basis. It is an application by the second defendant in relation to what has been described as judicial review 2. It seems to me that this is not a case where I should award any costs on an indemnity basis and the normal rules will apply with costs to be allowed with a detailed assessment.
I hope I have dealt with all the costs issues by that short judgment. Miss Carrington, you have an application?
MISS CARRINGTON: My Lord, I have an application to my Lord for permission to appeal. Could I make it clear at the outset that within the scope of Part 52 my application is made under both heads for appealing, (a) that there is a real prospect of success and (b), alternatively, that there is some other compelling reason.
My Lord, in the light of my Lord's judgment the following issues have raised themselves, in my respectful submission, on both heads and these are as follows: first of all, the issue of whether, in the context of enforcement under an environmental health statute, proceedings within the meaning of section 7(6) of the Human Rights Act 1998 have been instigated within the meaning of section 22(4). The second point is this: that the court when considering what categories of decision fall under the policy/expediency heading identified by my Lord, Lord Hoffman, in the House of Lords in Alconbury, what is the correct categorisation of such proceedings not only in the context of this particular case but in the context of the environmental health regime as a whole? These were effectively enforcement proceedings, and whether in the light of my Lord's findings that there were elements of fact which were unresolved by the time matters came for both defendants and, in particular, the second defendant, it is correct to categorise the nature of decision as policy/expediency or whether indeed something further raises itself by way of issue. Least I be accused of simply trying to argue that your Lordship should not have applied Alconbury, my submission is that there is a real lack of clarity as to precisely what types of decision attract a policy/expediency label and this is something which Alconbury does not address on its face.
My third point really arises out of that and again relates to the Article 6 point and that is the adequacy of the ability to apply under Part 54 for judicial review in cases such as this where there is a mixture of a fact and expediency element, a policy element which, on my Lord's judgment, has been left unresolved, at least to some extent.
My fourth point, my final point really, relates to Article 1 of the first protocol argument as resolved by my Lord and it relates to the reservation expressed by your Lordship in relation to the factual scenario or the factual finding in which my Lord expressed the view it was possible to reach if the land had been rendered useless in economic terms, that there was no use to which the land could be put. My Lord found it was possible to find that there had been a breach of Article 1 of the first protocol, but expressed the view that this was much more appropriate to a court hearing a private law claim than in this court to resolve on judicial review. My point in relation to that is what precisely are the powers of this court on hearing a judicial review application to resolve issues of expert fact and plain fact? But those are the four points in relation to which I apply for permission under either of the headings set out in Part 52.
THE DEPUTY JUDGE: Thank you.
MR MCMANUS QC: My Lord, that application is resisted. My Lord, as far as DEFRA is concerned, my Lord has determined this case both on time and on the merits of Article 6. My Lord, the argument on time, in my submission, is not one where there is a real prospect of success or some other compelling reason why leave or permission should be granted. My Lords's judgment on the time point is, in my submission, fully in accordance with the (inaudible) case to which my Lord was referred and in the similar context if, my Lord, that decision was right, my Lord is right on this case. A more similar context, in my submission, we would never get to the Article 6 or Article 1 of the first protocol issues. And, my Lord, for good measure my Lord has determined on the facts of this case those two issues against my learned friend, in our submission that is fully in accordance with their Lordship's speeches in Alconbury. My Lord, as to what their Lordship's meant in Alconbury we now have a wealth of authority including the court decision in the Court of Appeal to which my Lord referred to in his judgment. For all those submissions, I submit it is not an appropriate case for permission to appeal.
MR COLE: My Lord, the second defendants likewise would oppose the application for permission on the grounds of having neither reasonable prospect nor a compelling reason. Your Lordship has dealt with the matter in accordance with authority. My learned friend has already referred to Alconbury and McLellan, and given a detailed judgment, therefore, the second defendants would oppose the application.
THE DEPUTY JUDGE: Miss Carrington, have you anything else to say?
MISS CARRINGTON: No, my Lord has my submissions.
THE DEPUTY JUDGE: There is here an application for permission to appeal. The case, so far as I am concerned, does raise issues of some considerable difficulty, particularly in a slightly shifting world when looking at this type of case. It seems to me that this is a case where I should grant permission to appeal without offering any encouragement for that permission to be pursued. It seems to me that after careful reading of the judgment, the claimants may decide that this is not a permission that they would want to exercise. However, I grant permission to appeal.
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