England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th December 2002

Mr Justice Goldring :

Feakins v Secretary of State for Environment, Food and Rural Affairs

The issue in this application

1. This is an interim application in a claim against the defendant for judicial review of various decisions of what is now the Department of Environment, Food and Rural Affairs ("DEFRA"), then the Ministry of Agriculture Fisheries and Food ("MAFF"). It concerns the slaughter of the claimant's and others' animals at the claimant's farm ("Sparum Farm") during the 2001 foot and mouth outbreak. Among other things, the claimant seeks a "Mandatory Order to compel the defendant to perform her statutory duty pursuant to section 34(2) of the Animal Health Act 1981 to bury, sell or otherwise dispose of animal carcasses and the burned remains of such carcasses now lying on or in land belonging to the claimant at Sparum Farm."
2. On 27 February 2002 there was a hearing before Mr. Justice Stanley Burnton. Permission to move for judicial review was granted in respect of the alleged breach of section 34(2) (as well as in respect of another alleged breach, irrelevant to the present proceedings). Permission was granted on the defendant's undertaking,

"(a) On or before 4.00PM on 27 March 2002 to remove from…[Sparum Farm]…so far as is practicable all ash and burned or partially burned animal carcasses or parts thereof now lying upon the surface of the ground thereat and forming part of or resulting from pyres built for the purpose of destroying the carcasses of animals slaughtered by the defendant, her servants or agents pursuant to the powers granted by section 31 of the Animal Health Act 1981…[1/5/51]."

3. A second undertaking concerning a lagoon was given. No issue arises regarding it.

The issue which has now arisen

4. A dispute has arisen regarding the removal of the relevant material ("the residue"). The defendant proposes to remove it directly to landfill at either Bishops Cleeve in Gloucestershire or Workington in Cumbria. The claimant contends that such removal would be unlawful. He contends that within the residue are the remains of cattle (whether burned or partially burned) born before 1 August 1996 ("old cattle"). Such is the risk of the presence of the infective protein ("prion") which causes Bovine Spongiform Encephalopathy ("BSE") that the law requires the residue should first be incinerated. There is a risk of other cattle being infected by BSE. There is a risk to humans of exposure to BSE and thus to variant Creutzfeldt Jacob Disease ("vCJD"). Directly to bury the residue would be unlawful. I should grant a declaration to that effect.
5. It may at first sight be thought that provided the defendant removed the residue, the claimant would have little interest in its destination. He maintains he is or would be at risk of prosecution, at risk of civil liability and that, in any event, he is seeking this declaration in the public interest.

The facts

6. They are by no means straightforward. Many are in issue. At the final hearing, there will be oral evidence. However, I have no doubt I can resolve sufficient of them to decide this application.

The three pyres

7. Sparum Farm is near Kidderminster in Worcestershire. It was primarily a sheep and cattle farm. On 7 March 2001 it was declared as infected by foot and mouth disease. On 9 March 2001 the animals on the farm were slaughtered on the (then) minister's orders. On about 13 March 2001 a pyre ("the first pyre") was constructed to cremate the carcasses of the claimant's animals. On 15 March 2001 it was lit. On 27 March 2001 the claimant agreed with Ministry officials to allow carcasses from neighbouring farms to be cremated on Sparum Farm for a fee. A second pyre was constructed. It was lit on 31 March 2001. On about 31 March 2001 the claimant agreed to allow a third pyre containing further carcasses of neighbouring animals to be constructed. It was lit on 3 April 2001.

The residue

8. After the second and third pyres had gone out, some of the residue was buried on the claimant's land ("the buried ash"). There is an issue as to how it came to be buried and, in particular, whether the claimant agreed to its burial. The buried ash is not the subject of the undertaking. Some of the residue was not buried ("the unburied ash"). According to the defendant it amounts to no less than some 13,500 tons of material. It is to this that the undertaking applies. However, the defendant has indicated that should her proposed removal of the unburied ash be lawful, she would propose to dispose of the buried ash in the same way. That would plainly be sensible.
9. The nature of the residue is important. Simplifying greatly, two basic issues arise regarding it. First, what was put on the pyres? For the greater the number of old cattle, the greater the risk of infection. Second, how well did the carcasses burn? For the less well they burned, the greater the infectivity which remains.

The number and age of the cattle

10. Mr. Smith QC, on behalf of the claimant, submitted that the evidence as to the number of cattle cremated, their age and the details about them is uncertain and unsatisfactory. Given the nature of BSE the Court must always err on the side of caution.
11. There is no dispute that some 820 cattle and 700 sheep belonging to the claimant were cremated on the first pyre. The defendant suggests that 158 cattle and 3861 sheep were imported from neighbouring farms and cremated on the second and third pyres.
12. The claimant does not accept that. In his third witness statement (dated August 2002) he says, "I have on many occasions asked DEFRA to confirm the details of the cattle brought on to my land. I have been told they do not have any records of those animals. I have been told by another party that they have been shredded…[3/22/417/16]." He says he made a number of attempts to obtain accurate figures of imported cattle. He sets out those attempts in his fourth statement (3/25/562 and following).
13. At first, DEFRA would not release numbers. On 13 September 2001, Mr. Hawkins the Regional Director of DEFRA put the number of imported cattle at 101. He confirmed it on 19 September 2001 (3/25/574). The claimant says that Mr. Hawkins had earlier indicated that "a significant amount of animals in excess to that which DEFRA admitted had been brought on the Farm [3/25/574/7]."
14. In September 2002, following an application for specific disclosure, the defendant produced a hand-written schedule headed "Outside Animals Burned at Sparum." Although there is no evidence to this effect, Mr. Parker QC on behalf of the defendant told me that it was produced by Mr. Gray who was the DEFRA veterinary officer present. He obtained the information from the contractors. On its face, the schedule lists numbers of cattle by individual owners' names. The total number of outside cattle is put at 108. No number has been included for one farmer, Mr. Raybould. The number of the claimant's cattle is put at 816. The overall total is therefore 924. (The total number of sheep is put at many more: 4373) (6/5/1227).
15. An Environment Agency retrospective instruction of 8 June 2001 gave the "approx. number of carcasses" as 924 cattle and 4373 sheep (6/5/1223), which is what Mr. Gray's schedule stated. On 4 September 2002, "Following a review of…the Authorisation…for…[the] disposal of Burned Remains of Animal Carcasses," the Environment Agency increased the "maximum" number of cattle by 52 to 976. The number of sheep remained at 4373 (6/6/1235).
16. The claimant suggests that "many more cattle" than the 158 alleged by the defendant were imported. He produces a letter from a contractor and farmer called Nigel Matthews, who speaks of at least 600 carcasses on the third pyre; 700 to 800 on the second and third pyres together. Mr. Davis, another contractor, in another letter, speaks of approximately 250 cattle on the third pyre. The claimant himself says that on the few occasions he did attend the site, he saw cattle substantially in excess of 158 (3/25/564/15).
17. The claimant also relies on the statement of Mr. Clayton, a consultant instructed by him. He submits it calls into question the accuracy of the defendant's case as to what was placed on to the pyres. Mr. Clayton comments on a finding that uncooked proteins were found in the area of the pyres. Given that the claimant states that the relevant area had not been an earlier burial site, such proteins indicate that "animals other than sheep and cattle were brought to the site for burning and burial [9/5/1372]." Mr. Clayton makes the somewhat surprising suggestion that pigs might have been brought in and cremated without being noticed.
18. Mr. Gray speaks of the number of imported cattle. He says that he "has fully researched the records relating to animals brought on [the claimant's] farm and I am happy that the figures of…158 cattle that have been provided by DEFRA are accurate- or, if slightly inaccurate are an overestimate that errs in favour of the claimant…[9/2/1352/3]." As to the claimant's "huge" figures, he says they are "plainly wrong." He gives reasons for saying that. He also questions various points raised by the claimant (now at paragraph 19 of the claimant's Supplemental Skeleton). I have read what is said in paragraph 19 and bear it in mind. I need not set the points out.
19. The claimant, relying on discussions with others, calls into question the accuracy of Mr. Gray's evidence (9/4/1368/8).
20. As will become plain, this is a factual issue which I need not resolve for present purposes. It does not materially affect the analysis of BSE risk.
21. I turn now to the issue of the age of the cattle.
22. The defendant puts the number of imported old cattle at 50. They were the cattle belonging to Mr. Raybould.
23. Mr. Davies speaks of taking Mr. Raybould's cattle when over five years old to Sparum Farm (2/21/412). As it is put in 19(d) of the claimant's Supplemental Submissions, "From his own observations [he] considers that a significant number of cattle put on the second and third…pyres were [old]."
24. The claimant also relies on Mr. Matthews' letters in one of which he says "hundreds of…cattle were old [3/26/577-9]." He gives reasons for that opinion. I am not at all sure I can place much reliance on what he says in his letter.
25. Mr. Gray says he has checked the claimant's claim as to the age of the cattle. He says he has found no evidence to support it.
26. There is another issue. The expert evidence is that dairy herds are more likely to be infected with BSE than beef herds. The claimant and Mr. Matthews speak of cows being imported. The claimant too says that the beef cattle were bred from dairy herds.

The pyres themselves

27. There is evidence of problems with all three pyres. Mr. Smith, with some justification, submitted that the burnings did not proceed as well as they might have done. The claimant's outline submissions suggest that, "…the pyres did not burn well and they did not adequately cremate all the carcasses…For many weeks …unburned carcass parts and sometimes whole carcasses rose to the surface of the burn sites…it shows that the remnants of the pyres are contaminated with unburned material…and that the pyres did not burn at a sufficiently high temperature to cremate everything put on to them."
28. In a letter of 17 May 2002 the claimant told MAFF that he "would like to congratulate you on the way the first fire burned our animals. Unfortunately…the subsequent fires were not so efficient…[2/12/171]." Mr. Gray appeared to think the first pyre had problems (3/25/567/21(a)).
29. Mr. Evans was the supervisor employed by the Ministry. I have read his notes (2/13/284). They speak of body parts, cattle bones and unburned cattle carcasses being found. When possible, it seems the body parts were collected.
30. There are other references to unburned parts and problems with the fires (3/24/567/21(a), 3/26/566, 577, 580, 600).
31. The piles of residue were left in a field. Different material was placed on them. The residue now consists of topsoil and pyre residues. (There was an issue between the claimant and the defendant as to the value of the topsoil).
32. On 6 July 2001, the Environment Agency complained to DEFRA that "there might have been a number of carcasses that were inadvertently interred adjacent to the burn site during the construction of the pyre...Would you please ensure that the area is thoroughly investigated and any remaining carcasses removed from site." 2/12/202

The history of BSE in the cremated cattle

33. In her defence, the defendant admits that 113 of the claimant's cattle (cremated on the first pyre) were old, as were 50 of the imported cattle (cremated on pyres two and three).
34. Ms Gordon examined the records for BSE concerning the cattle connected with the claimant. Seven cases were confirmed in cattle kept at Sparum Farm. The last was on 31 December 1998. Seven cases were found in cattle owned by the claimant and kept in premises in Gloucestershire. The last was on 21 July 1994. Two cases were found in cattle which had been obtained from the claimant and kept in Gloucestershire, the last being on 14 August 1994 (5/5/1017, 1022). Having obtained the printouts in respect of imported cattle, she states that no other cases of BSE have been identified in any of them (5/3/1017).
35. Mr. Parker submits that there is in reality no evidence of imported herds having a history of BSE. I agree.

Guidance provided by the authorities

36. Mr. Smith drew my attention to various documents promulgated by different government departments and agencies. He rightly submitted they were not always consistent. Mr. Parker drew my attention to others. I have sought to set them out chronologically. Some are significant to issues which arise in this case, as will become clear. One important issue on the law is the capacity available to the defendant in 2001 and 2002 to dispose of the cattle burned on Sparum Farm by incineration.

MAFF's guidance, January 2001

37. This pre-dated the foot and mouth outbreak. It was intended for local authorities which had enforcement responsibilities regarding the disposal of animal by-products. Mr. Smith submits it sets out the law correctly. "The use of landfill is unlikely to be permitted under the [Animal By-Products Order 1999] except in very limited circumstances…The [Order] requires that animal by-products are consigned to rendering, incineration, or another permitted route…and burning (other than in an incinerator) are not permitted (sic). The only exceptions are if…the…by-products are in a place where access is difficult; or…the quality of by-product and the distance to premises in which disposal is otherwise permitted (eg a rendering plant or incinerator) do not justify transporting it [4/10/751-3, 4/10/755]."

The Select Committee, January 2001

38. In January 2001 Mr. Michael Meacher provided evidence to the Select Committee on the Environment, Transport and Regional Affairs concerning BSE waste. It touches upon incineration capacity at that time. It reveals that there were about 451,000 tonnes of meat and bonemeal (a suspect substance as far as BSE is concerned) stored and awaiting incineration. It reveals considerable pressure on capacity at that time, for it would only be by 2004 that 85% would be incinerated (4/4/706). As Mr. Parker puts it, this dramatically illustrates the tightness of capacity before foot and mouth. I agree.

The Veterinary Exotic Diseases Team's guidance, 25 February 2001

39. On 25 February 2001, foot and mouth disease having broken out, emergency guidance was issued by the Veterinary Exotic Diseases Team. It was said to be a "Joint position statement by MAFF and the Environment Agency on managing waste arising from an infected source [4/11/793]." Mr. Smith submits it shows there was no consideration of the dangers of BSE or the provisions of the Animal By-Products Order 1999. It states, "There are only three recognised methods of disposal; burning or burial on site and secure rendering for some wastes. MAFF have developed recognised procedures for all methods [4/11/793/6]." There was no mention of incineration. This document may have been the product of the pressure which foot and mouth was placing on the authorities.

MAFF's disposal plan for cattle carcasses in Cumbria, 28 March 2001

40. This dealt with capacity constraints for rendering carcasses (6/20/20).

MAFF's emergency instruction, 29 March 2001

41. This stated that "rendering capacity is limited to cattle and some classes of pig [6/19/1299]."

Alistair Hoare's letter, 1 April 2001

42. On 1 April 2001 Alistair Hoare, a hydrogeologist employed by the Environment Agency instructed the Ministry that Sparum Farm was suitable for burning the imported carcasses on the original burn site. He said they all had to be incinerated. The ash could be buried on site. He gave instructions regarding the burning. It was allegedly not followed (2/12/188).

MAFF's slaughter and disposal policy, amendment 3, 4 April 2001

43. "Estimates of rough order of scale of future slaughter requirements indicate that rendering, on-site burn and bury, on site bury and military mass burial will not be able to cope with all possible requirements for disposal of carcasses…Consequently, Commercial Landfill capacity is not available and priorities for disposal must be set [6/21/1310]." As Mr. Parker submits, there are plainly problems of capacity in disposing of carcasses.

The Veterinary Team's emergency instruction, 9 April 2001

44. This purported to set out the policy on allocation of rendering capacity. It states that, "Rendering priority has to be given to [old] cattle…or all cattle where dates of birth are unknown or uncertain. These animals cannot be buried. All available rendering capacity for these cattle has been allocated to Cumbria and Devon…All the available rendering capacity is now being used and even that only provides about 50% of the demand from Cumbria and Devon. This clearly means that all routes of disposal have to be used and rendering is not available as an easy fall back option [6/18/1297]." Again, the pressure on capacity when disposing of carcasses is self-evident.

MAFF's memorandum, 15 April 2001

45. This was guidance from the "Joint Co-ordination Centre" of MAFF. The "Overview" stated (among other things), "we will only get a steady reduction in carcasses awaiting disposal by continuing to use all available outlets at full capacity over the next four weeks…rendering is a fixed capacity which is mostly used by priority allocation to Devon and Cumbria for adult bovines: but with a recent allocation of three more plants…[we] believe rendering capacity to be sufficient for disposing of all the weekly kill of [old]…cattle but it is not yet organised to do so…[4/20/855]."
46. Mr. Smith submits the note suggests there was sufficient rendering capacity to dispose of old cattle in that way.
47. There is an annex (dated 14 April 2001) from the Environment Agency. It deals with the disposal of ash from pyres (and mobile incinerators). The "policy line to take" was for ash to be left on site and covered with soil. If, as part of the clean up, the ash had to be moved and buried, this might be done. Movement should be minimised. "Ash from on farm incineration by funeral pyre…which contains or is suspected to contain [old] cattle…must be subject to an assessment of the options available. If the assessment identifies that the site is not suitable for disposal of the ash then…the ash must not be taken directly to landfill…[it] will require re-incineration at an authorised incinerator [4/20/857-8]." Further guidance also states that "If there is a possibility that the ash contains residues from [old] cattle…then [it] must not go to landfill, but will need to go to an authorised incinerator [4/20/859]."
48. Mr. Smith submits that guidance should have been and should be followed in this case.
49. The guidance as a whole makes clear the enormous pressure under which the authorities were working. It assumes "that pyres and on site incineration result in relatively low temperature or inconsistent burn [4/20/858/Background]." It underlines the risks in moving the ash rather than leaving it in place. It does permit old cattle to be buried in suitable sites on the farm without incineration however. Putting to one side the question of the risks of moving the ash (which would apply equally to its being taken to the incinerator), I find it difficult to understand why, if, as must be the assumption, ash containing old cattle can be safely buried on a farm, it cannot equally safely be buried in a proper licensed landfill site.

The Environment Agency's facsimile, 17 April 2001

50. On 17 April 2001 Mr. Waddingham, a hydrogeologist from the Environment Agency in Shrewsbury sent a facsimile to the "Worcester team" from MAFF who were dealing with the claimant's case. It dealt with the suitability of the burn sites. It advised a surface burn. It said, "We are advised that some of the cattle are [old]…therefore upon completion of the burn, the ash should be removed from site and taken to a high temperature incineration plant for disposal. This advice reflects current guidance on BSE risks. If it is possible to keep the ash from cattle under 5 years old separate this can be taken to an Agency approved landfill site. There should be no burial of either carcasses or ash on this site [4/20/859(a)]."
51. Mr. Smith submits this guidance should have been followed.

The Department of Health's guidance, 24 April 2001

52. Under the heading "FOOT AND MOUTH DISEASE MEASURES TO MINIMISE RISK TO PUBLIC HEALTH FROM SLAUGHTER AND DISPOSAL OF ANIMALS-FURTHER GUIDANCE" the Department of Health stated that old cattle and cattle about which there was uncertainty as to age should be identified before slaughter and should be disposed of by rendering or incineration where possible, otherwise burned on site. They "must not be landfilled or buried under any circumstances [4/21/836]."
53. It also states, "Where it is necessary to remove ash arising from [old] cattle… then it will require incineration at an authorised incinerator. If ash from [old] cattle…cannot be immediately incinerated, then it must be stored in sealed containers, or with temporary covering until incinerator capacity can be arranged [4/21/865]."
54. The claimant relies on this guidance.

MAFF's letter, 9 May 2001

55. It is said to be an update regarding ash disposal. It speaks of risk assessments. It states that "A national contractor is likely to be appointed to deal with any ash, which must be moved. Ash which cannot be buried on site or on farm, should remain covered until…removal is possible [4/24/876]."

MAFF's letter, 17 May 2001

56. In a letter referring to the Department of Health instruction of 24 April 2001, MAFF sets out what the priorities for rendering are. The highest priority is old cattle (4/25/883). The priority for rendering was amended the next day "because of increased available rendering capacity." The highest priority remains old cattle "but where it is impossible to age or sort cattle all will have to be rendered (or incinerated at a specialist incinerator site or cremated) [4/25/890/4(a)]."
57. Mr. Smith submits this letter suggests there was rendering capacity available. He also submits that in this case the cattle should have been sorted before cremation, the old cattle being separated from the others. This letter appears to envisage that old cattle may be cremated on-site.

Spongiform Encephalopathy Advisory Committee's review, 24 May 2001

58. The Spongiform Encephalopathy Advisory Committee ("SEAC") advised on the disposal of carcasses from old cattle. It had been told that there were at least 400 locations where old cattle had been cremated. At least 50,000 cattle were involved. The situation in this case would not therefore seem unusual. The ash from pyres was analysed for residual protein content to give an indication of the extent to which infectivity had been destroyed. In two of three analyses there had been at least 99% destruction: in one, 90%. This "broadly supported" the 90% destruction of infectivity assumption in recent risk assessments. "Previous SEAC opinion…had been that incineration would ensure greater destruction of residual…infectivity, and was the preferred disposal option. However, burial in landfill sites had also been judged to present no significant risk…Given available incineration capacity, initial indications were that up to 8-10 years might be required to dispose of the estimated 100,000 tonnes of ash currently unburied….If all the ash had to be incinerated…some would have to be stored for several years which would require double handling given that it could not be safely left where it currently lay. The worker safety risks of multiple movement of ash could be much bigger than the relative…risk of different disposal options and needed to be taken into account in any risk assessments. Calculations indicated that the currently unburied ash would contain infectivity of equivalent to roughly 60 BSE infected animals, which would equate to 0.01 infective units per tonne-a very low level…in general the preferred method for disposing of ash from pyres was on site burial…Where [this] was not possible, site specific assessments should be carried out…Incineration would ensure the greatest destruction of any residual infectivity…and [is] SEAC's…preferred option. However the risks from landfilling were also very small, and…smaller than leaving the ash where it…lay. Where incineration capacity was limited, the risks from greater handling and storage of ash, if it all had to be incinerated, also had to be taken into account in the risk assessments [6/2/1212-3]."
59. In a summary it said, "Where [old] cattle…had been buried, further risk assessments would need to be undertaken when farms were re-stocked to assess any BSE risks to animal health. Analysis of ash from cattle burned in pyres indicated that the assumption of 90% destruction of infectivity, made in the DNV risk assessment, was reasonable. Currently, all [old] cattle…were being disposed of by rendering [6/2/1205]."
60. In the light of this, the Environment Agency revised their guidance and advised ash from older animals could be disposed of in licensed landfill sites (see the statement of Mr. Hickman, 6/1/1198/38). The SEAC report is powerful evidence both on the issues of risk and capacity. Again, with justification, Mr. Parker relies on it.

DEFRA's letter of 18 June 2001

61. This is another letter drawn to my attention by Mr. Smith. It deals with the reporting and collection of fallen cattle over thirty months. It states that failure to report such a fallen animal amounts to an offence. The carcase should be collected by a contractor to DEFRA and the brain sent for testing. It also states that "You might like to know that in addition to testing fallen stock aged over thirty months, the UK is, or is likely to be, required to test…all cattle entering the Over Thirty Months Scheme (OTMS) born between 1 August 1996 and 31 July 1997 [4/29(a)/919(a)-(b)]."
62. The OTMS scheme provided that farmers could offer old stock for disposal to rendering or incineration plants. It was suspended during 2001 to provide more capacity during the foot and mouth epidemic (4/6/710).

The Environment Agency's interim assessment of December 2001

63. In December 2001 the Environment Agency made an assessment of the impact of foot and mouth disease. It paints a picture of the enormous impact of the disease and deals with the practical problems facing those on the ground in 2001.
64. There were some 600,000 tonnes of carcasses. About 14 per cent went to mass burial, 16 per cent to commercial landfill, 22 per cent to rendering and 48 per cent were buried or burned on farms (6/17/07).
65. "The scale of the outbreak meant that disposal was a major logistics problem…The need to deal quickly with carcasses meant that…the time to select suitable burning or burial sites was limited…many groundwater risk assessments [had] to be completed by desk study within about three hours…During the early stages of the outbreak, restrictions on the movement of animals and carcasses limited the use of existing rendering plants. Suitable landfill sites had…not then been identified. This meant that initially, following 1967 practice, most disposals took place on farms by burial and burning on pyres…No carcasses were sent to incineration plants, although meat and bone meal from rendering plants were disposed of in this way. A major factor in managing on-farm disposal and landfill was the risk of BSE Infectivity…Carcasses of [old] cattle…were not allowed to be buried or landfilled to prevent BSE transmission…Burning on pyres greatly reduced the risk of BSE prions from older cattle, so burial of the ash on-site was accepted…Where ash had to be removed from site it was landfilled…Some 600,000 tonnes…have been disposed of, equivalent to about two per cent of annual household waste or 30 per cent of annual and commercial and industrial food waste [6/17/1294/13-4]."
66. In other words, what happened regarding Sparum Farm was not untypical.
67. Rendered carcasses from cattle over thirty months were incinerated. By October 2001 about 130,000 tonnes were rendered and incinerated (6/17/1294/14).
68. Pyre ash was taken to authorised landfill sites, if not buried on-site. About 120,000 tonnes of ash and associated material had to be removed. About 100,000 tonnes were buried on-site.

The claimant's attitude to the ash

69. As I have said, the claimant states that he is seeking this declaration in the public interest (among other reasons). That seems to me improbable. On 25 October 2001 his solicitors indicated that if he was paid sufficient by the defendant, he would be prepared to have the ash re-buried "in the correct manner" on his land. Otherwise, he wants it taken away (6/8/1244).

The expert evidence regarding the nature of the residue

Mr. Barker

70. Mr. Barker has analysed samples taken from the ash. His conclusion is clear. "The destruction calculation on the three buried samples showed a destruction rate of about 99.5%. However it should be pointed out that the samples were of higher fuel ash content than other pyre ash samples…and there were not as many non-determinative amino acids as in many samples. Given this, the length of time after the pyre, the approximations in the calculation and the other points…it is probably unwise to assume a destruction rate greater than 95%. This percentage destruction is not unusual for pyres…[5/15/1184]"
71. The analysis of this ash is not inconsistent with what SEAC said. Mr. Barker's analysis is a sounder basis upon which to work than eye-witness evidence about the effectiveness of the burns. As will become plain, the defendant's experts have worked on an assumed destruction rate of 90% and have considered the effect of an assumed destruction rate as low as 80%. This evidence in my view answers the criticisms of the defendant's expert evidence made by Mr. Smith, as I shall indicate.

Mr. Hickman

72. Mr. Hickman (to whom I have referred above) is a consultant employed by the defendant. He did not visit the site. He has commented on the issue of risk of BSE infection. His view is that there would be "no material risk whatsoever to human or animal health if properly buried [6/1/1188/10]." His opinions are based on his inferences from the primary evidence. Mr. Smith criticises those inferences. Mr. Smith rightly observes that Mr. Hickman does not entirely accurately summarise Mr. Evans' notes. Among other things, he suggests that after cremation only "the inevitable small amounts of skin, fur and bone residue" mixed up with ash were left. He suggests that the only unburned animal body parts were from sheep carcasses. Mr. Hickman says that "Ash samples from pyres have indicated that up to 99% of the protein can be destroyed by burning (6/1/1187/6). That, submits Mr. Smith, cannot apply to the present pyres. They were far less efficient than Mr. Hickman is assuming. His conclusions are not therefore valid.
73. Mr. Hickman also suggests that when removing the unburied ash, the Ministry can remove and dispose of by incineration any visible animal parts which may come to light (6/1/1188/9). That submits Mr. Smith cannot be done. The animal parts are microscopic and cannot be separated out. He relies on the evidence of Fieldfare Associates Limited ("Fieldfare"), consultants instructed by the claimant. They dug trenches across the burial site. Among other things, were found (unidentified) animal bones and fur (2/16/339-40). They were asked if the adequately burned material could be separated out from the adequately burned material. They said that some body parts were large enough to separate by hand. (Those seem to be what Mr. Hickman has referred to as visible animal parts). Other, smaller parts, such as ground up body parts and muscle fibre, could not be (3/24/541/3.1/(e)).
74. Fieldfare's conclusion was that as there were in the unburied ash animal particles of a microscopic nature "it would be impossible to eliminate the contaminated material and consequently there is a risk of BSE prions on the site [3/24/542/4]."
75. It seems to me a matter of common sense that while larger animal parts can be extracted, small parts cannot be. However, the argument concerning Mr. Hickman's evidence is in my view a sterile one. Mr. Barker has dealt with the effectiveness of these burns. The defendant is not assuming as part of her case a 99% destruction of protein. For present purposes I need say no more.

Doctor Huntly

76. Dr. Huntly has prepared an "Assessment of Risk due to BSE Infectivity Associated with Ash from Disposal of Cattle due to FMD at Sparum Farm [5/2/982]." The scope of the assessment was to assess the risk and identify issues affecting BSE contamination associated with the ash and burial site [5/2/985]. He too did not visit the site. Neither did he have Mr. Barker's analysis. He relied on information provided to him. In particular, he relied on the defendant's assessment as to the number of cattle and their age. Throughout "conservative values have been used…in order to present a pessimistic scenario. This is consistent with the approach adopted in other studies and reflects the large uncertainties associated with many areas of BSE and prion biology in general [5/2/988]." As I understand his submissions, Mr. Smith does not dispute the science relied upon by Dr. Huntly. What he does dispute are the factual assumptions upon which it is based.
77. Mr. Smith has drawn my attention to the general comments Dr. Huntly has made in his witness statement concerning BSE and the emergence of vCJD connected with it. He referred to this being a "difficult area." Among other things, he speaks of the novelty of the risk assessment techniques used "to assess exposure to an infective agent about which there is much uncertainty in the scientific community [5/1/978/2]." He also mentions the "significant uncertainty" regarding the risk potential of BSE from sheep and lamb meat (5/1/999).
78. The animals from Sparum Farm and those imported were differentiated. Dr. Huntly took the breakdown indicated by Mr. Gray: in other words, 113 carcasses from Sparum Farm being old, 50 carcasses from other farms being old (5/2/990). Dr. Huntly assumed the imported cattle were from beef herds (not dairy herds where the incidence of BSE is greater) (5/2/995/3.1).
79. He made certain assumptions regarding the effectiveness of the burns. They were that "all pyres were built and operated in a manner consistent with a disposal of this nature and in accordance with guidelines issued…the unburned material found on the site following disposal was not of bovine origin." Mr. Smith suggests the assumptions were too optimistic. He points to evidence to the effect that the pyres were not constructed as they should have been. Rightly, he suggests that Dr. Huntly is wrong when he assumes all the unburned material on site was not of bovine origin.
80. Dr. Huntly goes on to say, "However, as it is not possible to demonstrate that there would have been complete combustion of all material, this will be reflected in the assumed effectiveness of the pyres in reducing infectivity [5/2/992]."
81. Dr. Huntly deals with the reduction on infectivity of burning the carcasses on pyres. "Destruction of BSE infected material in an animal carcase incinerator has been assumed to reduce infectivity significantly, assumed to be a million fold reduction based on an analysis of protein content in the ash…It is expected that the effect on infectivity of burning in a pyre will be much less than this due mainly to incomplete combustion. If conducted carefully, the effect would probably be similar to that of rendering, i.e. a 50 fold reduction. However, since there is a possibility of incomplete combustion, a cautious approach would be a 10-fold reduction. This value was discussed at the SEAC meeting on the 30 March and it was agreed that it represented a cautious estimate. Ash from 12 pyres has been sampled and analysed for protein content. This is used as an indicator of the potential for destruction of infectivity as it is not possible to test for the presence of prion protein at low levels. The results show a range of destruction from 80% to 99.9%, with an average in excess of 90%…In any one pyre it would be expected that there would be a range of infectivity reduction potential ranging from very high (greater than 99.9%) in areas where the material was exposed to high temperatures to low (less than 80%) in areas where there was incomplete combustion. For there to be residual infectivity in the ash requires firstly that an infected animal was loaded on to the pyre and secondly that the infected material is in the part of the pyre with poor combustion. An average reduction of 90% is considered to be conservative (i.e. it is expected that the reduction would be greater…in most circumstances). If a reduction of 80% was used, being the lower end of the range from the ash samples…it would make little significant difference to the results…[5/2/993]."
82. Mr. Parker emphasises the cautious approach of Dr. Huntly. He has had regard, he submits, to the possibility of incomplete combustion and has worked on that basis. Even assuming a reduction to 80% effective combustion, his results would not significantly be affected.
83. It seems to me Dr. Huntly's assumptions are consistent with the SEAC analyses. 80% effective combustion is a very low estimate in the light of them. Mr. Barker's analysis of the ash in this case suggests the appropriate (and itself conservative) destruction figure would be 95%.
84. Although the infectivity of the ash to animals would be greater from surface ash, Dr. Huntly has assumed the risk status between the two is the same (5/2/994).
85. Dr. Huntly took into account the incidence of BSE previously at Sparum Farm (5/2/995/3.1). He assumed no other farm supplying cattle to pyres two and three had a history of BSE (5/2/997).
86. As to infectivity Dr. Huntly said, "The total infectivity in the animals to be disposed of is obtained by combining the estimate of the number of infected animals…with the estimated infectivity per infected animal…It is generally accepted that infectivity builds up slowly through incubation increasing rapidly in the terminal stages of the disease; this means that the highest titres of infectivity are found in the last three or four months of the five year incubation period. None of the animals disposed of…had clinical symptoms, and thus it would be expected that any infected animals would have had less infectivity than in a clinical case. This will result in a conservative estimate of risk [5/2/1000/3.3]…the total numbers of bovines that may have been infected with BSE was estimated based on the BSE history at Sparum Farm and the data on the prevalence of infectivity in UK cattle. This showed that the expected number of BSE positive animals in the cattle disposed of at Sparum Farm was 0.47. However, in practice, there would either have been animals with BSE infectivity present or not…the most likely outcome (a 62% chance) is that there were no BSE infective animals in those disposed of…However, there is still a reasonable chance (38%) that there were one or more BSE cases with a 30% chance of there being one case, a 7% chance that there were 2 cases and a small, 1% chance that there were 3 cases [5/2/1002-3/4.2]."
87. Dr. Huntly assumed infectivity was reduced by the incomplete combustion on the pyres by 90%, as set out above. He also considered a reduction by only 80%. He said that would increase the levels of potential infectivity in the ash by a factor of two, however, "[whilst]…a significant increase, it can be seen that it would still be a relatively small change when compared to the estimated range of uncertainty [5/2/1003/4.3]." He also assumed "that all residual infectivity would be present in the ash and that none has been dispersed in smoke or subsequently decayed. This results in a conservative estimate of infectivity remaining in the ash [5/2/1003/4.3]."
88. He observes that any infectivity in the ash could be in the unburied ash, the buried ash or part and part. The ash of course comprises a considerable volume of material (some 13,500 tons). Although the infectivity could be equally spread, it might not be. It might be very patchy. "For this material to pose a risk to people it would have to be ingested in sufficient quantities for people to be exposed to an infective dose. There are no credible routes of exposure for this to occur. Neither cattle nor people are likely to be directly exposed to any infectivity present in the ash provided it is handled and disposed of appropriately. Possible disposal options need to be considered…[5/2/1004]."
89. Dr. Huntly then considers four options for disposal. The first was to take no action. It is agreed that is not a realistic option. "With the possibility that there may be some infectivity present" and given it is not well enough buried, it could be a risk to livestock (5/2/1004/Option A). The second was to bury the ash properly on site. To do so "would be effective in reducing the bio-availability [of the prion material] and potential exposure to [it]… ." However, it would involve substantial disturbance and handling of the material (5/2/1005/Option B). The third was to cover the ash and pyre site with topsoil. That could only apply to the buried ash (5/2/1005/Option C). The fourth was to remove the ash for disposal offsite. It "would be effective in removing infectivity in proportion to the amount of material that can be removed, which would presumably be close to 100%." It would mean disturbance and handling of material (5/2/1005/Option D).
90. "…any infectivity in the ash is highly unlikely to pose a risk to people whether it is in a stockpile or buried. There is a possible risk to stock if the ash is present on the surface of land grazed by cattle. It is…not an option to leave the material in the present state. Any of the other options are considered…effective in reducing levels of…infectivity to very low levels. The main difference in risk terms would be in the amount of disturbance and handling of the material that would be required [5/2/1005]."
91. Dr. Huntly concluded "… The most likely outcome was that there were no BSE infected cattle included in the slaughter or disposal of stock…However, there was a significant chance (about one in three) that there would have been at least one animal with significant levels of BSE infectivity present…Any BSE infectivity remaining in the ash on the farm was not considered to be a risk to people, as it would be mixed into a large volume of ash and soil and is not in a form that it could be readily ingested. However, in some circumstances the materials could potentially pose a risk to cattle grazing on land where materials were present…A number of options have been produced to either remove the ash from the site or bury it. If these remedial activities are conducted adequately, it is considered they should be effective in reducing any risk from BSE activity to negligible levels (my emphasis) [5/2/986]."

Philip Comer's statement

92. Mr. Corner had reviewed and approved Dr. Huntly's report. He has since considered the position on the assumption that the claimant is right as to the number of cattle burned and the incidence of BSE in them. He states that it would have "no significant impact upon the risk assessment and conclusions of…[Dr. Huntly] [9/1/1347]." He states why.
93. First, he says that burning will have reduced infectivity substantially. An effectiveness of destruction of 80% would have little significant impact. Mr. Barker's report suggests 90% is too conservative. There is accordingly a much smaller risk than Dr. Huntly assumed.
94. Second, even if more cattle were burned, and some of those had a higher risk of BSE, it would only result in a slightly higher degree of likelihood of there being a BSE infected animal on the pyre. The calculation of risk assumed one infected animal on the pyre anyway. The estimate of infectivity does not therefore change. If some of the cattle came from dairy herds, that too would only lead to a marginal increase in the likelihood of there being a BSE infected animal in the pyre. Again, that would not lead to an increase in infectivity.
95. Third, the carcasses were not burned immediately after slaughter. During that time the potentially infected material would liquefy. That would make it more sensitive to heat. Burning would be more destructive than Dr. Huntly assumed.
96. Fourth, Mr. Corner underlines other conservative assumptions made by Dr. Huntly. He sets them out in paragraph 12 of his statement (9/1/1349). I shall only refer to one of them. Dr. Huntly assumed in his risk assessment an animal infected by BSE to the extent of a fully clinical case. There is no evidence at all that any of the cattle burned were so infected. In fact it was unlikely that there was any BSE infected animal cremated.
97. Fifth, residual infectivity will have been diluted by the mixing and movement of the ash after the burns. Any risk of residual infectivity will be reduced by burial.
98. Sixth, Mr. Corner makes the point that environmental contamination has not been recognised as an infection risk factor in BSE in cattle.

My conclusions on the infectivity of the ash

99. Without Mr. Barker's evidence, Dr. Huntly put the risk as negligible. In the light of Mr. Barker's and Mr. Corner's uncontradicted evidence that is too conservative a view. It is not necessary for me to resolve the issues of fact raised by the claimant. As Mr. Corner has said, they do not materially affect Dr. Huntly's conclusions.
100. In short, I shall proceed on the basis that what is proposed by the defendant (if adequately conducted) would reduce any risk from BSE activity to at least a negligible level, probably below.

Mr. Hickman's evidence

Disposal options

101. Mr. Hickman, plainly rightly, describes the foot and mouth epidemic as "a major, widespread epizootic disease outbreak and unprecedented in the scale and speed and propagation of the virus. Due to large scale disease control culling, disposal of carcasses presented an enormous logistical problem [6/1/1196]." He refers to the fact that 3,939,000 animals were slaughtered for disease control and 2,044,000 were presented for slaughter under the Livestock Welfare (Disposal) Scheme. At the time of the outbreak the recommended disposal was burial (to avoid the spreading of infection). Burning was the alternative where burial posed a problem (6/1/1196/33).
102. Mr. Hickman prepared a graph, setting out the tonnes of carcasses slaughtered as against the available disposal capacity (6/22/1319). Mr. Smith has criticised the graph. He submits that it does not show the number of old cattle, the important matter when considering capacity. It does not take into account that most of the animals slaughtered were sheep. He also submits it deals with the wrong time. Although far from determinative, the graph does seem to me to indicate what is clear from the other evidence: there was huge pressure on available capacity for incineration in 2001.

Incineration

103. Mr. Hickman states that "…incineration is recognised…as the optimum disposal route, due to the consistency with which high-temperature incineration destroys 99.9% of animal protein. However, although optimal in terms of protein destruction, incineration is not always necessary, appropriate or available as a method of disposal; it is both extremely expensive and severely limited in capacity…I have written to a variety of incineration plants…to investigate the potential for all the ash presently lying on the claimant's land to be disposed of by incineration…Due both to the type of the material…and its quantity…my investigations indicate that few incinerators would be willing or able to accept [it]. Moreover, even animal waste large incinerators cannot handle more than 1-2 tonnes per hour. It would therefore take many months to dispose of all the material by incineration. Some municipal incinerators have larger capacities than this but I am informed that they are already utilised to full capacity and would in any case have difficulties dealing with this type of material…Due to this lack of capacity, disposal of the ash by this method would necessitate the ash being removed from the site, transported to a secure store and then re-loaded and transported to the incinerator over a period of months or even years…since in excess of 90% of the pyre ash is inert non-volatile material, the majority…would remain after incineration and would need to be removed from the plant and transported to landfill for final disposal [6/1/1199-1200]."
104. Mr. Parker submits it would be absurd first, to move the residue to the incinerator, second to store it there for some uncertain period and finally, transport it elsewhere for landfill. It would involve considerable time.
105. On the basis of Mr. Hickman's investigations, the quickest time to dispose of the ash by incineration would be between one year and one and a half years, at a cost in excess of £11 million. This would involve transporting all the waste to a suitable warehouse, putting it in there, re-packing it into smaller containers and transporting it to Ellesmere Port for incineration over the period. The cheapest would be a cost in excess of £6.3 million. That would take two to five years. This would involve the waste being transported and stored in a facility and incinerating it over the period (6/1/1200 and 1335, 1337).

Rendering

106. One plant would be able to do that. It would cost £2.4 million. It would take six to eight months. After rendering, the material (some 90% of the original tonnage) would have to be taken to a landfill site (6/1/1201). That too would have the drawbacks indicated by Mr. Parker.

Landfill

107. Two landfill sites have been identified. They have licences to accept pyre ash. The Environment Agency has no objection to such disposal and has expressed the view it is lawful. The cheaper estimate is £1.919 million. The ash could be moved immediately. Only one transportation would be required (6/1/1202).

Mr. Dean's report

108. Mr. Dean has provided a report for the claimant dealing with "Incineration capacity [for the ash]…as at March/April 2001 and subsequently…Incinerators capable of dealing with this sort of material…Timescale for incineration, having regard to capacity [3/28/618]." Mr. Smith relies on this report as showing, among other things, that there was at all possible material times the capacity to incinerate the unburied and buried ash. On its basis he attacks the evidence of Mr. Hickman.
109. Mr. Dean refers to the available United Kingdom incinerator capacity. He refers not only to hazardous waste incinerators, which were considered by Mr. Hickman, but also to municipal waste incinerators, which Mr. Smith submits were not. Municipal waste incinerators have a capacity, says Mr. Dean, of 3.03 million tons of waste a year.
110. Mr. Dean says that, "The two types of incinerator that I believe could reasonably have handled significant quantities of BSE suspect pyre ash in 2001 are municipal waste incinerators and hazardous waste incinerators [3/28/620]." He says that municipal incinerators meet all the requirements for burning pyres ash and that DEFRA "virtually ignored" this "enormous potential incineration capacity [3/28/620]." He refers however to a number of matters that would have to be done before such incinerators could be used. They comprise "regulatory adjustments" to permit such incinerators to bury pyre ash, trial burns which the Environment Agency would almost certainly want, the probable requirement for public consultation before such use and the possible need for the installation of a separate, sealed conveyer system. He says that, "none [of these things] is a logical reason for ignoring the municipal waste sector [3/28/620]." He produces no evidence from any municipal contractor dealing with these matters. He says nothing as to how public consultation might reasonably be expected to proceed, or its time scale or the time scale for trial burns. He suggests that municipal incinerators would have been the "best type of facility to target [3/28/6121]." He criticises Mr. Hickman's statement to the effect that municipal incinerators are fully utilised and would have difficulties dealing with pyre ash. He concludes, "that [municipal] incineration capacity [is]…capable of destroying the prion and other residual proteins in BSE suspect pyre ash [and] could have been available in 2001…[3/28/621]."
111. Mr. Dean also states that MAFF "reneged" on purchase orders placed with two waste incineration companies to dispose of pyre ash in 2001. He states that MAFF told them that following a risk assessment, the ash would be disposed of to land (3/28/623).
112. Mr. Dean suggests the capacity referred to above still exists and has been supplemented by further capacity having become available (3/28/621).
113. Mr. Smith submits that there was capacity to incinerate carcasses in 2001, let alone in 2002. He criticises the slaughter policy. He submits old cattle could have been separated. He relies on the comments of the Farming Minister, Lord Whitty, made on 24 July 2001, when he said that "the fight against foot and mouth disease remains the overriding priority and therefore has first call on processing capacity…[4/6/710]." He submits that when assessing capacity the question of available secure storage has to be taken into account. He points to the fact that there were some 451,000 tonnes of meat and bonemeal in store awaiting incineration in March 2001 (see above) (4/4/706). He criticises Mr. Hickman's comments on capacity. He relies on Mr. Dean's evidence regarding municipal capacity.
114. It seems to me necessary to consider the issue of capacity with a degree of common sense. There is a huge quantity of unburied ash on Sparum Farm (let alone buried ash). The problems of capacity in 2001 seem to me absolutely plain. The interim assessment from the Environment Agency (6/17/1293) (see above) underlines the scale of the problem of coping with the enormous number of carcasses to be disposed of. Other documents referred to above underline it. The information contained in the SEAC report speaks for itself. The fact burning on-site was carried out to the extent it was, even where animals were old, was, in part, a recognition of that. It seems to me unrealistic to argue there was capacity in 2001.
115. The situation has no doubt improved by now. However, that there are significant problems of capacity when dealing with this quantity of ash is established by Mr. Hickman's evidence. It would be surprising if that were not so. Moreover, if the claimant is right, and all the ash containing residue from carcasses of old cattle referred to by SEAC has to be incinerated, the effect on capacity would be enormous.
116. I do not accept Mr. Smith's submission that the failure to consider municipal capacity in more detail than he did invalidates Mr. Hickman's analysis. Mr. Dean's evidence amounts to little more than speculation that in certain circumstances, provided certain actions were done, municipal capacity might have been or be available. Lord Whitty's comments do not seem to me determinative of this issue. The fact that with hindsight another course regarding the animals culled might have been followed seems to me neither here nor there.
117. In short, I conclude that there were in 2001 and are now significant problems of capacity in disposing of the ash from Sparum Farm. As for the issue of the storage of the residue prior to incineration, I shall consider that when dealing with the law.
118. I also consider that to transport the material to an incinerator, store it for the periods spoken of by Mr. Hickman, and then transport what would be 90% by volume of it for burial, would, in the light of the expert evidence regarding risk, make little sense. However, if that is what the law requires, that is what must happen.

The law

Does the claimant have any standing to bring this action for declaration?

119. The first issue raised by the defendant is that the claimant has no standing to bring this action. No interest of his is affected. He is, whatever he claims, at no risk of prosecution. He is at no risk of civil liability. The claim that he is bringing the action out of public interest is spurious. I should not therefore entertain the action.
120. I can deal with this issue shortly. As will become clear, there is in my view no risk of the claimant being prosecuted. Neither is there any prospect of him bearing any civil liability. In the highly unlikely eventuality of him being sued, he would be able to claim an indemnity from the defendant. Mr. Parker indeed suggested the defendant might well agree to indemnify in such circumstances. I have already stated that I find it improbable he is seeking this declaration in the public interest.
121. All that having been said, I shall consider this case on its merits. If, having heard argument, I consider that what the defendant is proposing is unlawful, it seems to me that in the public interest I should say so.

The Animal Health Act 1981

122. Paragraph 3(1) of Schedule 3 of the Act provides that the "Minister may, if he thinks fit, in any case cause to be slaughtered…any animals affected with foot-and-mouth disease, or suspected of being so affected; and any animals which…appear to the Minister to have been in any way exposed to the infection of foot-and-mouth disease."

Section 34 provides,

"(2) Where an animal has been slaughtered under this Act at the Minister's direction, the carcase of the animal shall belong to the Minister and shall be buried or sold or otherwise disposed of by him, or as he directs, as the condition of the animal or carcase and other circumstances may require or admit…

(4) Where an animal has been slaughtered under this Act at the Minister's direction, he may use for the burial of the carcase any ground in the possession or occupation of the owner of the animal…or any common or unenclosed land."

123. In short, once the animal has been slaughtered at the minister's direction, it belongs to her. She may direct its disposal. She owns its residue. She may do what she wishes with it. That includes burying it on a landfill site. Of course, in this case, the residue is inextricably mixed up with topsoil, which the defendant does not own.
124. Had the residue not included carcasses of imported animals, the minister could have ordered its burial on the claimant's land (section 34(4)).

The Animal By-Products Order 1999

125. The enabling power was the Animal Health Act 1981.
126. By paragraph 3(1),

""Animal by products" means…animal carcasses…parts of carcasses…products of animal origin...high risk material means…animal by-products which present a serious risk of spreading communicable disease to man or animals…[or]…which are killed in he context of disease control measures…"

127. The animal residue from Sparum Farm is an "animal by-product." It contains a product of animal origin. The animal was killed in the context of disease control measures. It is high risk material.
128. Disposal of high risk material is governed by paragraph 5 of the Order.
129. By paragraph 5(1),

"Subject to the following provisions…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…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 the by-product and the distance to premises in which disposal is otherwise permitted under this article do not justify transporting it…"

130. By paragraph 5(2) of the Order,

"If the appropriate Minister serves on the person in charge [of] any animal by-product a notice certifying that-

(a) the by-product is from animals infected with…an epizootic disease and should not be transported because of health risks;

(b) the by-product contains or is suspecting of containing, residues or pathogens which could constitute a risk to human or animal health and which could survive rendering; or

(c) there is lack of capacity at rendering premises or incinerators;

then that person shall, without due delay, dispose of the by-product by burning or by burial as may be specified in the notice…"

131. Paragraph 33(2) provides that the order "shall be enforced by the local authority."

Possible criminal liability

132. I can take this shortly. The responsibility for disposing of the animal residue rests upon the defendant. She owns it. The claimant has no responsibility regarding it. The fact it contains some of his topsoil does not alter that. He cannot be criminally liable for the way the defendant deals with it. Although the Order may speak of the duties upon "any person who has [the residue] in his possession or under his control," it cannot in my view have been Parliament's intention by this subordinate legislation to impose a duty of disposal on someone in the claimant's position when the primary legislation has imposed the duty exclusively on the defendant.
133. Moreover, by section 72 of the Animal Health Act 1981, it would be a defence to any prosecution for the claimant to prove he has a lawful excuse not to have consigned or disposed of the residue. On these facts, that provision too would be fatal to any such prosecution.

Does Regulation 5 of the Animal By-Products Order 1999 bind the Crown?

134. The claimant alleges that the defendant is in breach of paragraph 5 of the Order. By it, she is required to dispose of the residue by rendering or incineration. Burying is not open to her. No question of access being difficult arises. It cannot be suggested that the quantity of residue and the distance to an incinerator do not justify transporting it. The defendant accepts she does have legal responsibilities regarding the disposal of the ash. They arise under the EEC Council Directive of 27 November 1990 (90/667/EEC: "Animal Waste Directive"). She disputes Regulation 5 binds her. She submits it does not bind the Crown.
135. Although as will become plain, this issue in my view is academic in the present case, I shall briefly consider it.
136. It is trite law that an Act of Parliament is presumed not to bind the Crown in the absence of express provision or necessary implication. There is no express provision here under either the Animal Act 1981 or the Regulations made under it. Is the Crown bound by necessary implication?
137. Province of Bombay v Municipal Corporation of the City of Bombay and Another [1947] AC 58 is agreed still to be good law. Lord Du Parcq said this (page 63),

"…the apparent purpose of the statute is one element, and may be an important element, to be considered when an intention to bind the Crown is alleged. If it can be affirmed that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound….when the court is asked to draw this inference, it must always be remembered that, if it be the intention of the legislature that the Crown shall be bound, nothing is easier than to say so in plan words."

138. The burden of necessary implication is a high one.
139. Mr. Smith made the following basic point. The scheme of this legislation binds the Crown. The enabling act, namely the Animal Health Act 1981 binds the Crown. The legislation contains a network of obligations which cast responsibilities on the Crown. For example, various sections oblige the minister to pay compensation. Section 86(2) refers to the duties on the minister under the Act. The Act, he submits, would make no sense unless the Crown were bound. The legislation made under it must too.
140. He submits too that paragraph 3 of the Order would make no sense unless the minister were bound. He refers to the "Explanatory Note" at page 50 of the Order, which states, among other things, that the Order is intended to implement the Animal Waste Directive. That binds the defendant. It must have been intended that the Order should too, he submits.
141. In response, Mr. Parker makes the following points. The Animal Health Act 1981 is not stated to bind the Crown. It is not necessary to imply that it should. It is an Act imposing powers on ministers in order to regulate the conduct of others. Its intention was to place burdens on others. It would be very odd if by such an Act it was intended that the minister should regulate himself.
142. The fact that under the Animal Health Act 1981 the defendant may have the duty to dispose of carcasses and pay compensation does not help in deciding whether Parliament intended by this sub-ordinate legislation that the minister should regulate himself. The Regulation does not state an intention to bind the Crown.
143. Paragraph 5(2) of the Order is plainly directed to the minister serving a directive on someone else. The Order is not directed to the minister's conduct. It cannot have been the intention that the minister should serve the notice on himself. If it is to be interpreted as though it were, it would require implying into paragraph 5(2) a provision that as far as a minister is concerned, the requirement to serve a notice is redundant.

My conclusion on this aspect

144. I have primarily concentrated on the terms of paragraph 5(1) of the Order itself. I have asked myself, whether it was Parliament's intention that the minister should be bound by its provisions. I have born in mind that Parliament said nothing in either the primary or secondary legislation of an intention to bind the Crown. I have borne in mind too that the sanction on a breach of paragraph 5 is prosecution.
145. Paragraph 5(1) is intended to apply to persons who have high or low risk by-product in their possession or under their control. Paragraph 5(2) provides that the minister may serve a notice in respect of that by-product on the person in charge, certifying that for the reasons specified in the notice the by-product may be burned or buried. It cannot have been intended that the minister serve such a notice on himself or that there should be implied a provision that when the minister has the by-product in his possession, no notice is needed. It cannot have been intended that paragraph 5(2) applies to the minister. It follows that paragraph 5(1) cannot have been intended to apply to the minister either. It is not necessary to imply that it does.
146. I do think too that it would be surprising if by subsidiary legislation under which it was intended the minister should regulate the conduct of others, it was also intended he should regulate his own conduct in the way contended here.
147. In short, I have concluded paragraph 5 is intended to give the minister powers to regulate others. A person in breach of paragraph 5 may be prosecuted by the local authority. Parliament did not intend it should apply to the minister.
148. As I have said, this issue is academic in the present case. It is the defendant's case that there is a lack of incinerating capacity which would justify burial. As will become clear, I agree. If the claimant is right and the Order binds the defendant, it seems to me, the provisions of paragraph 5(2) would apply. So would the derogation under the Animal Waste Directive (see below). I need not go into any detail regarding that now. The comments I make later in the judgment regarding the applicability of such a derogation in the context of domestic legislation would equally apply here.

The Animal Waste Directive

149. The preamble sets out the purpose of the Directive. Among other things, it states,

"…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 high risk should be collected and transported directly to a processing plant designated by the Member State…"

150. The Directive lays down "the animal and public health requirements for the…disposal and/or processing of animal waste in order to destroy pathogens which might be present in such materials…" See Chapter I, Article 1.
151. By Chapter 1, Article 2, the unburnt ash constitutes "animal waste." It is "high-risk material" if "it is suspected of presenting serious health risks to animals or man…"
152. By Chapter II, Article 3, animals which are killed in the context of disease control and constitute high risk material must be processed in a high risk processing plant. Such a plant is one in which the animal waste undergoes treatment or processing in order to destroy pathogens in accordance with Article 3. See Chapter 1, Article 5(5).
153. There is a derogation. By it,

"The competent authorities may where necessary decide that high-risk material must be disposed of by burning or by burial where…

-a wide-spread epizootic disease leads to a lack of capacity at the high-risk material processing plant…Burial must be deep enough to prevent…animals from digging [it up]…" See Chapter II, Article 3, paragraph 2.

154. By Annex II, Chapter II, paragraph 1, "Animal waste must be processed as soon as possible after arrival. It must be stored properly until processed."
155. As I have said, it is agreed this Directive applies. Mr. Smith submits that it requires that the residue be taken for incineration. The derogation cannot apply, he submits. The time at which any lack of capacity has to be assessed is either 27 February 2002 (when the undertaking was given) or now. There was capacity for incineration on either of those dates. Further, he submits, it cannot be said that any current lack of capacity is due to widespread epizootic disease. Even if the time to consider was 2001, Mr. Smith submits there was capacity.
156. Mr. Smith also submits that in the context of capacity, the fact that the residue may have to be stored is not relevant. Annex II, Chapter II, paragraph 1 contemplates such storage. Meat and bonemeal residue was stored, as Mr. Meacher made clear to the Select Committee. All that is required is that it be stored safely. Even on the basis of Mr. Hickman's evidence, there was in February 2002 and is now capacity.
157. Mr. Parker argues that the time to consider capacity was 2001, when the decision it is sought to review was reached. As I understand his argument it comes to this. The claimant alleges the defendant's original decision to burn and bury was wrong. It is in respect of that order he seeks judicial review. He has prevented the defendant either burying the ash on the farm or removing it. Whether the decision was unlawful has to be considered against the background of the events at the time, particularly the lack of capacity to incinerate then available. The undertaking cannot be considered in isolation. It was the means of executing the decision. It was not intended by the derogation that someone could frustrate the execution of a decision (reasonably) reached by waiting for capacity subsequently to be available.
158. It is not necessary for me to resolve this issue. I shall consider the case on the basis most favourable to the claimant. I shall assume that the time I have to consider is now.
159. I have accepted Mr. Hickman's evidence regarding capacity. I reject Mr. Smith's submission that any present lack of capacity is not due to epizootic disease. The derogation was in my view intended to permit a state subsequently to dispose of material which such disease had brought about. Here, there is substantial animal waste which came into being as a result of foot and mouth disease, an epizootic disease. It is the substantial amount of that waste which results in the problem of capacity spoken of by Mr. Hickman.
160. Mr. Smith submits that Mr. Hickman's evidence suggests there is capacity. The incinerator plants can accept the ash. It does not matter they cannot immediately incinerate it. They would only lack capacity if they could not store it.
161. I do not accept Mr. Smith's submission. In my view Mr. Parker is right when he submits that capacity (both for the purposes of the paragraph 5(2) of the Animals By-Products Order 1991 and the derogation under the Animal Waste Directive) must be construed reasonably and purposively. If an incinerator plant cannot dispose of the high risk material within a reasonable time or without undue delay (to adopt the phraseology of the Order), but has to take it into storage for a long (and somewhat uncertain) time, and at high expense, it cannot be said to have capacity. It may be worth repeating Mr. Hickman's evidence in this regard. The time to dispose of the ash would be between one and one and a half years. That would cost more than £11 million. It would involve transporting all the waste to a suitable warehouse, putting it in there, re-packing it into smaller containers and transporting it to Ellesmere Port. The cheapest incinerator would cost more than £6.3 million. The time to dispose of the ash would be between two and five years. It would have to be transported and stored in a facility during that time. Capacity on such time scales was not contemplated by a derogation brought in to deal with the consequences of epizootic disease.
162. In short, I have concluded that the defendant is entitled to rely on the derogation. I have also concluded that would be "a lack of capacity" for the purposes of paragraph 5(2) of the Animals By-products Order 1999 (were it to apply).

The Transmissible Spongiform Encephalopathies Regulation ("The EU TSE Regulation")

163. Much of this European Regulation was in force from 1 July 2001. It could not apply to this case if the time to consider is that of the decision sought to be reviewed. It will apply to February 2002 or now. As I have said, I shall assume in the claimant's favour that the time to consider is now and therefore assume those parts of the EU TSE Regulation which are in force apply. In any event, as has been accepted by the defendant, there was authority binding upon her in 2001 which was in similar terms to the TSE Regulation.
164. In its preamble the EU TSE Regulation in terms refers to BSE and vCJD. Its intention plainly was to prevent the spread of BSE. On page two, paragraph (10), it states, that

"Certain ruminant tissues should be designated as specified risk material…[this] material should be removed and disposed of in a manner which avoids any risk to human or animal health…"

165. The specified risk material is defined in terms of parts of cattle over 1 year old and the intestines of cattle of any age (Annex XI, A 1).
166. Annex XI point 8 provides,

"…Where specified risk material is not removed from dead animals which have not been slaughtered for human consumption, the parts of the body containing the specified risk material or the entire body must be treated as specified risk material.

Member States shall ensure that all specified risk material is stained with a dye…and completely destroyed:

by incineration without pre-processing; or

provided that the dye…remains detectable, after pre-processing…"

167. Again, there is a derogation. Point 10 provides,

"Member States may derogate from the provisions of…8 and 9 to allow the incineration or burial of specified risk material or entire bodies…in the circumstances set out in Article 3(2) of [the Animal Waste Directive]…and by a method which precludes all risk of transmission of a TSE and is approved and verified by the competent authority, in particular where animals have…been killed in the context of disease control measures."

168. It is agreed (assuming 2002 is the appropriate time to take) that the ash is specified waste material. I have already decided that the derogation as set out in the Animal Waste Directive applies. However, as Mr. Smith rightly submits, the derogation can only apply for the purpose of this Regulation if the alternative method proposed "precludes all risk of transmission of a TSE." He draws my attention to the words in the preamble to the effect that "any risk" to human or animal health must be avoided. What is proposed by the defendant, he submits, even on the basis of her expert evidence, cannot meet that very high requirement. The derogation in the Animal Waste Directive cannot therefore apply.
169. In my view the EU TSE Regulation must be construed as a whole. Among other things, it requires specified risk material to be dyed. It requires it (without pre-processing) to be incinerated. That must presumably contemplate its possible removal on to a vehicle, a journey to the incinerator, its unloading at the incinerator, its cremation at the incinerator and the subsequent removal of the ash (some 90% of the bulk) for disposal. It must be contemplated such a possible course of action would avoid "any risk to human or animal health." That is part of the course the claimant is suggesting should be followed here, although here infectivity in the specified risk material has been substantially reduced by burning.
170. The defendant's proposal is burial in approved, licensed, landfill sites. Such sites, as I understand it, would safely retain the ash. As I have said, even before burial, the expert evidence which I accept and is in reality all one way, suggests the burning has substantially reduced infectivity. Such burial would reduce the already reduced risk to what Dr. Huntly, conservatively, has termed negligible. On any reasonable, sensible and purposive construction of the Regulation, the course of action proposed would avoid "any risk to human or animal health." "All risk of transmission of a TSE" would for the purposes of the Regulations be precluded.
171. For the purposes of the derogation, the defendant is the "competent authority" to "approve and verify" the absence of "all risk." She has effectively done so by her conduct of these proceedings.

The TSE (England) Regulations 2002 ("English TSE Regulations")

172. They came into force on 19 April 2002. Again, in the claimant's favour, I shall assume they apply. They provide for the "administration and enforcement of the…Community TSE [Regulations] [page 120]."
173. By paragraph 40 of the Regulations, specified risk material (which the ash is) should be sent "directly" to "a licensed incinerator." No-one is permitted to remove the material from the incinerator unless it has been completely incinerated (paragraph 64(4)). There are provisions dealing with disposal and burial in a landfill site after incineration or rendering (paragraphs 64, 68).

The applicability of the derogation under the EU TSE Regulation

174. Before dealing with this issue in more detail, I should set out what happened regarding it.
175. I distributed my draft judgment for correction. In that draft, I decided that the defendant could rely on the EU TSE derogation as an answer to the allegation of a breach by the defendant of the English TSE Regulations. The day before it was due to be handed down, (and having had it for some time) Mr. Smith submitted a further skeleton argument and authorities to support the proposition that I was wrong regarding the derogation. Instead of handing down the judgment, I heard argument on the issue. I have decided that it would be in everyone's interests that I should deal with the new submissions.
176. Mr. Smith's basic submission can be put quite shortly. Annex XI of the EU TSE Regulation provides that "Member States may [my emphasis] derogate [paragraph 10]." That means, he submits, the state is permitted to derogate. It is not obliged to. The UK has decided not to. A member state may legislate more strictly domestically than it is required to do under the European legislation (see for example Officier van Justitie v Romkes [1988] 3 CMLR 126). Absent the derogation in the English TSE Regulations, the defendant cannot rely on it. The Regulations therefore apply to her. They do not permit what she proposes to do. Her proposal is unlawful.
177. Mr. Smith further submits that once the United Kingdom has decided by domestic legislation to enact the European provision, unless there is inconsistency between the domestic and European legislation, the domestic applies. Consideration of the European provision is not permissible. He has referred me to National Smokeless Fuels v Inland Revenue Commissioners [1986] STC 300. In that case, Warner J was considering the impact of certain EC Council Directives relating to capital duty. He said this at page 308b,

"…the correct view is that, if the words of a statute passed to fulfil an international obligation of the United Kingdom are so clear and unambiguous that they are capable only of one meaning, the terms of the international treaty or other instrument imposing that obligation cannot be invoked to modify that meaning. If, in such a case, the statute fails to fulfil the obligation, the remedy…lies in…"a forum other than Her Majesty's Courts…Where on the other hand, the words of the statute are reasonably capable of more than one meaning, an English court must in construing them, apply the presumption that Parliament does not intend to act in breach of the United Kingdom's international obligations.

The well known exception…is…that of a case…where the United Kingdom fails to fulfil an obligation contained in a provision of European Community law having direct effect in the member states."

178. Mr. Smith accepted in argument that one consequence of his submission would be that even assuming an unarguable lack of capacity, absent the derogation, the defendant would inevitably find herself in breach of the English TSE Regulations. He suggested her remedy would lie in emergency domestic legislation in accordance with the derogation. He also accepted that another consequence would be that there might be inconsistency between different European Union states concerning this Regulation.
179. Before Mr. Smith made his further submissions, Mr. Parker had put his case on this aspect shortly. He submitted that the EU TSE Regulation has the force of law. It applies directly to every member state. It contains the derogation by which the state may burn and bury provided the conditions are satisfied. The defendant could not be said to be acting unlawfully if she acts in accordance with that derogation. That submission seemed to me plainly right.
180. Mr. Harris, in well-argued submissions on behalf of the defendant, has amplified what Mr. Parker said.
181. He submitted this is a Community regulation. It is elementary constitutional law that such regulations are binding on each member state when enacted. Domestic legislation cannot implement such a regulation. It is implemented when passed. All the domestic legislation can do is make provision for its administration and enforcement.
182. He referred me to Commission of the European Communities v Italian Republic, Case 39/72. Paragraph 17 states,

"According to the terms of Article [234]…Regulations are, as such, directly applicable in all Member States and come into force solely by virtue of their publication in the Official Journal…as from the date specified in them, or…as…provided in the Treaty.

Consequently, all methods of implementation are contrary to the Treaty which would have the result of creating an obstacle to the direct effect of Community Regulations and of jeopardizing their simultaneous and uniform application in the whole of the Community…

[Paragraph 20]…the Regulation is binding in its entirety for Member States.

In consequence, it cannot be accepted that a Member State should apply in an incomplete or selective manner provisions of a Community Regulation so as to render abortive certain aspects of Community legislation which it has opposed or which it considers contrary to its national interests."

183. It follows, he submits, that the whole of the EU TSE Regulation, including the derogation, applies to each member state.
184. Although the explanatory note to the English TSE Regulations are not part of the Regulations with the force of law, it illustrates why, submitted Mr. Harris, the English TSE Regulations were passed. They were "[to] make provision in England…for (a) the administration and enforcement [my emphasis] of the following directly applicable Community legislation [page 120]..." They provided for the administration and enforcement of a number of different European provisions, as the references to Parts II to VIII in the Explanatory Note make plain. In other words, they provided the machinery in England for the application of the already binding European legislation.
185. The matter is well put, he submits, in Azienda Agricola Monte Arcosu ECR 1-103.

"Although by virtue of the very nature of regulations and of their function in the system of sources of Community law, the provisions of those regulations generally have immediate effect in the national legal systems without it being necessary for the national authorities to adopt measures of application, some of their provisions may none the less necessitate, for their implementation, the adoption of measures of application by the Member States [see paragraph 26]."

186. As to Mr. Smith's argument concerning the phrase "may derogate" in the EU TSE Regulation, it was, he submitted, misconceived. That meant no more than on any given set of facts, the derogation may apply. The authorities relied upon by Mr. Smith, he submitted they have no applicability to a regulation such as the present.
187. In my view, and for the reasons he submitted, Mr. Harris is right. The EU TSE Regulation became binding law in each member state on its enactment. That included the derogation. The English TSE Regulations were the means of its administration and enforcement in England. Provided in any given case the facts justify the application of the derogation, the derogation applies. That is so in each member state. The somewhat surprising position has not been reached under which the defendant would be acting unlawfully in England when (as I have found) within the factual matrix contemplated by the European legislation she is specifically permitted to do what she proposes. Neither is she in the position of having to pass emergency legislation to avoid such liability.
188. In the circumstances, it is not necessary to consider other regulations which

featured in argument, particularly the Specified Risk Material Regulations 1997.

189. In the result the outcome of this case is unchanged from that in the draft judgment previously sent to the parties.

Conclusion

190. For the reasons I have set out, I am afraid, at some length, I have concluded the course proposed by the defendant is lawful. I do not grant the declaration sought.
191. I have some final observations.
192. The buried and unburied ash has now remained on the farm for some eighteen months. That is too long. No doubt enormously costly litigation has been embarked upon. This part of it, in which every conceivable point has been raised, was not, as I find, brought for any reasons of public interest or because of a soundly based concern of prosecution or civil liability. It has resulted in further delay. Whatever financial and other disputes there may be between the claimant and defendant, the sooner the ash is removed the better.