England and Wales Court of Appeal (Civil Division) Decisions

Statutory Background

“Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:

without risk to water, air, soil and plants and animals,

without causing a nuisance through noise or odours,

without adversely affecting the countryside or places of special interest.

Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.”

In Article 7(1), the provisions of Article 4 are referred to as “objectives”.

“… the competent authorities shall discharge their specified functions, insofar as they relate to the recovery or disposal of waste, with the relevant objectives.”

“(1) For the purposes of this Schedule, the following objectives are relevant objectives in relation to the disposal or recovery of waste—

(a) ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular without—

(i) risk to water, air, soil, plants or animals; or

(ii) causing nuisance through noise or odours; or

(iii) adversely affecting the countryside or places of special interest;

(b) implementing, so far as material, any plan made under the plan-making provisions.

(2) The following additional objectives are relevant in relation to the disposal of waste—

(a) establishing an integrated and adequate network of waste disposal installations, taking account of the best available technology not involving excessive costs; and

(b) ensuring that the network referred to at paragraph (a) above enables—

(i) the European Community as a whole to become self-sufficient in waste disposal, and the Member States individually to move towards that aim, taking into account geographical circumstances or the need for specialised installations for certain types of waste; and

(ii) waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health.”

Further objectives are set out at paragraph 4(3). It is common ground that there is no material difference between the wording of Article 4 and the wording of paragraph 4(1) of Schedule 4.

“No person shall carry on a prescribed process after the date prescribed or determined for that description of process by or under regulations under section 2(1) above … except under an authorisation granted by the enforcing authority and in accordance with the conditions to which it is subject.”

Section 6(6) provides:

“The enforcing authority shall, as respects each authorisation in respect of which it has functions under this Part, from time to time but not less frequently that once in every period of four years, carry out a review of the conditions of the authorisation.”

Section 7 provides, insofar as is material:

“(1) There shall be included in an authorisation—

(a) subject to paragraph (b) below, such specific conditions as the enforcing authority considers appropriate, when taken with the general condition implied by subsection (4) below, for achieving the objectives specified in subsection (2) below;

(b) such conditions as are specified in directions given by the Secretary of State under subsection (3) below; and

(c) such other conditions (if any) as appear to the enforcing authority to be appropriate;

but no conditions shall be imposed for the purpose only of securing the health of persons at work (within the meaning of Part I of the Health and Safety at Work etc Act 1974).

(2) Those objectives are—

(a) ensuring that, in carrying on a prescribed process, the best available techniques not entailing excessive cost will be used—

(i) for preventing the release of substances prescribed for any environmental medium into that medium or, where that is not practicable by such means, for reducing the release of such substances to a minimum and for rendering harmless any such substances which are so released; and

(ii) for rendering harmless any other substances which might cause harm if released into any environmental medium;

(b) compliance with any directions by the Secretary of State given for the implementation of any obligations of the United Kingdom under the Community Treaties or international law relating to environmental protection;

(c) compliance with any limits or requirements and achievement of any quality standards or quality objectives prescribed by the Secretary of State under any of the relevant enactments;

… .”

Section 7(4) provides:

“Subject to subsections (5) and (6) below, there is implied in every authorisation a general condition that, in carrying on the process to which the authorisation applies, the person carrying it on must use the best available techniques not entailing excessive cost—

(a) for preventing the release of substances prescribed for any environmental medium into that medium or, where that is not practicable by such means, for reducing the release of such substances to a minimum and for rendering harmless any such substances which are so released; and

(b) for rendering harmless any other substances which might cause harm if released into any environmental medium.”

Section 7(10) provides:

“References to the best available techniques not entailing excessive cost, in relation to a process, include (in addition to references to any technical means and technology) references to the number, qualifications, training and supervision of persons employed in the process and the design, construction, lay-out and maintenance of the building in which it is carried on”

Section 7(11) provides:

“It shall be the duty of enforcing authorities to have regard to any guidance issued to them by the Secretary of State for the purposes of the application of subsections (2) and (7) above as to the techniques and environmental options that are appropriate for any description of prescribed process.”

Reference is also made to section 4 of the Act. Section 4(3) provides, insofar as is material:

“The functions applicable to such processes shall be exercisable for the purpose of preventing or minimising pollution of the environment due to the release of substances into the air (but not into any other environmental medium).”

Section 4(9) provides:

“It shall be the duty of local authorities to follow such developments in technology and techniques for preventing or reducing pollution of the environment due to releases of substances from prescribed processes as concern releases into the air of substances from processes designated for local control.”

Thornby - Nature of waste (1): Is it clinical waste?

“(a) any waste which consists wholly or partly of human or animal tissue, blood or other body fluids, excretions, drugs or other pharmaceutical products, swabs or dressings, or syringes, needles or other sharp instruments, being waste which unless rendered safe may prove hazardous to any person coming into contact with it; and

(b) any other waste arising from medical, nursing, dental, veterinary, pharmaceutical or similar practice, investigation, treatment, care, teaching or research, or the collection of blood for transfusion, being waste which may cause infection to any person coming into contact with it.”

It is stated in paragraph 6 of PG 5/3 that the incineration of animal remains is the subject of a separate note but that the provisions of PG 5/1 “should be complied with where animal remains and more than incidental amounts of clinical waste are co-incinerated”.

Thornby - Nature of waste (2). Is it Directive Waste?

“1. The following shall be excluded form the scope of this Directive:

(a) gaseous effluents emitted into the atmosphere;

(b) where they are already covered by other legislation:

(i) radioactive waste;

(ii) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries;

(iii) animal carcasses and the following agricultural waste: faecal matter and other natural, non-dangerous substances used in farming;

(iv) waste waters, with the exception of waste in liquid form;

(v) decommissioned explosives.

2. Specific rules for particular instances or supplementing those of this Directive in the management of particular categories of waste may be laid down by means of individual Directives.”

Thus Article 2 excludes certain matters from the scope of the Directive “where they are already covered by other legislation” and amongst the matters excluded are “animal carcasses”. Article 2(2) makes provision for “specific rules for particular instances ( by means of individual Directives”.

“5.1 Plants for the disposal of toxic and dangerous waste by incineration.

5.2 Plants for the treatment by incineration of other solid and liquid waste”.

Thornby: Facts and submissions

“From this, it is apparent that levels considerably below the authorised limits can be achieved. Therefore, submits Mr Wolfe, the Council ought in order properly to apply BATNEEC to reduce the limits to reflect what can be achieved. But there must be some leeway and it is necessary to recognise that variations can occur; indeed, they have when one compares the two tables. The council must keep the authorisations under review and these tables may indicate that lower limits may be appropriate. But they do not provide any support for a submission that the limits fixed in September 1998 were unlawful.

In my judgment the evidence shows that Mr Walsh did have the proper objectives in mind and did apply BATNEEC properly. He performed his duties in a thoroughly conscientious fashion. It is apparent that he did not slavishly apply the limits in the Note. He took advice and decided for good reasons that those limits did represent BATNEEC and he imposed them with the correct objectives in mind. Accordingly, this application fails.”

“31. Taking all the above factors into account it was felt that the scheme provided by Timeright for the replacement of the outdated Pathpak 1000 incinerator with a new PG5/3(95) compliant Pyrotec AP300 unit was the BATNEEC option.

32. As discussed lower emission standards might in theory be achievable but only at the expense of excessive costs or creating other environmental problems. Therefore in the absence of any factors specific to this site my approach was to conclude that the Process Guidance Note PG5/3(95) did provide appropriate guidance as to the detailed standards to be applied to Timerights application.”

He continued:

“38. It needs to be borne in mind that many disparate local authorities exercise control over incinerators such as those authorised to Timeright. Most authorities are not of the size where they can be expected to have their own in house expertise in order to define appropriate local BAT standards. For these they rely on the detailed guidance issued by the government to indicate what standards are BATNEEC.

39. The purposes of the emission limits (amongst other standards) in the Guidance Note is to enable authorities to assess whether a proposed process will produce harmful emissions to atmosphere given the material that it is proposed to be incinerated. If every local authority had to set its own BAT standards there would be a wide disparity in the emission requirements etc in different areas of the country. Such inconsistencies would be unworkable and would lead to unnecessary extra costs and/or disputes between operators and local authorities.

40. The standards set out in the Process Guidance notes are those judged to be appropriate to a particular waste disposal option. Thus PG5/3 indicates the emission level etc, that if achieved will constitute BAT for the incineration of animal remains.

41. It is not correct to suggest that the Council has slavishly followed guidelines rather that applied BATNEEC. It is not necessary to go through a BATNEEC exercise right from scratch each time an authorisation is varied. It is permissible for local authorities to rely on Government Guidance provided there are no factors to suggest that guidance is in some way out of date such that it no longer represents BAT…”

“The aim of this Directive is to prevent or to limit as far as practicable negative effects on the environment, in particular by emissions into air, soil, surface water and groundwater, and the resulting risks to human health, from the incineration and co-incineration of waste.

This aim shall be met by means of stringent operational conditions and technical requirements, through setting emission limit values for waste incineration and co-incineration plants within the Community and also through meeting the requirements of Directive 75/442/EEC”

Murray: Facts and submissions

The authorities

“That provision does not therefore lay down any particular requirement restricting the freedom of the Member States regarding the way in which they organise the supervision of the activities referred to therein. That freedom must, however, be exercised having due regard to the objectives mentioned in the third recital in the preamble to the directive and in Article 4 thereof, namely the protection of human health and of the environment.”

That statement was cited with approval in Comitato di Coordinamento per la Difesa della Cava and Others v Regione Lombardia and Others (Case C-236/92).

“By not taking the measures necessary to ensure that the waste discharged into the watercourse bisecting the San Rocco valley is disposed of without endangering human health or harming the environment … the Italian Republic has failed to fulfil its obligations under the first paragraph of Article 4 …”

The Commission had “adduced sufficient evidence to show that biological and chemical waste had been discharged into the watercourse which bisects the San Rocco valley”.

“66. Under the first paragraph of Article 4 of the amended directive, the Member States are to take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and, in particular, without risk to water, air, soil, plants and animals, without causing a nuisance through noise or odours, and without adversely affecting the countryside or places of special interest.

67. Whilst that provision does not specify the actual content of the measures which must be taken in order to ensure that waste is disposed of without endangering human health and without harming the environment, it is none the less true that it is binding on Member States as to the objective to be achieved, whilst leaving to the Member States a margin of discretion in assessing the need for such measures.

68 From the fact that a situation is not in conformity with the objectives laid down in the first paragraph of Article 4 of the amended directive, then, the direct inference may not in principle be drawn that the Member State concerned has necessarily failed to fulfil its obligation under that provision to take the requisite measures to ensure that waste is disposed of without endangering human health and without harming the environment. However, if that situation persists and leads in particular to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities, it may be an indication that the Member States have exceeded the discretion conferred on them by that provision.”

“55. It should be noted that, whilst Article 4 of Directive 75/442 did not specify the actual content of the measures to be taken in order to ensure that waste is disposed of without endangering human health and without harming the environment, it was none the less binding on Member States as to the objective to be achieved, while leaving to them a margin of discretion in assessing the need for such measures (Commission v Italy, paragraph 67).

56. Thus the Court has held that a significant deterioration in the environment over a protracted period when no action has been taken by the competent authorities is in principle an indication that the Member State concerned has exceeded the discretion conferred on it by that provision (Commission v Italy, paragraph 68).”

“62. It should be remembered that the present proceedings stem from a complaint received by the Commission on 22 September 1987, drawing its attention to uncontrolled waste disposal in the mouth of the river Kouroupitos, on the Akrotiri peninsula, by the majority of the municipalities in the prefecture of Chania. The waste included refuse from military bases in the area, hospitals and clinics, and residues from salt factories, poultry farms, slaughterhouses, and all the industrial sites in the area.

63. In a study produced to the Court by the Greek Government entitled ‘Environmental Impact of Uncontrolled Solid Waste Combustion in the Kouroupitos Ravine, Crete, which was carried out in June 1996 by the Laboratory of Environmental Engineering and Management of the Technical University of Crete, in collaboration with the Institute of Ecological Chemistry, Munich, it is stated:

‘… The solid wastes are disposed of in the Kouroupitos ravine located approximately 30 km east of Chania, on the Akrotiri peninsula. The wastes are dumped into the ravine from the top at a distance of 200 m from the sea without any other care. The wastes have been uncontrollably burning for at least 10years, while the burning is self-supporting due to the high levels of organic matter. The improper waste disposal combined with the uncontrolled burning of the solid wastes has resulted in an environmentally hazardous situation, with the leachate seeping into the [sea], and the products of the burning process being transferred both to land and sea.’

64. As regards, first, fulfilment of the obligation imposed by Article 4 of Directive 75/442 to dispose of waste without endangering human health and without harming the environment, the Greek Government does not dispute that solid waste, in particular household refuse, is still tipped into the river Kouroupitos.

65 It is clear from the letters from the Prefecture of Chania to the Ministry of the Environment of 7 and 18 August 1998, disclosed by the Greek Government, that most of the waste still ends up, in the same uncontrolled and unlawful manner, in the Kouroupitos ravine, which today receives all the household waste from the urban area of Chania.

66. The Greek Government concedes in its rejoinder that ‘in any event, only the definitive solution to the problem, that is to say discontinuing the operation at the river Kouroupitos and introducing a modern, lawful and effective system, could be regarded as fully satisfactory.”

The Court found that such measures as the Greek authorities had taken, and had planned, to deal with the situation were insufficient and that the Hellenic Republic was in breach of Article 4 “as regards adoption of the measures necessary to ensure that waste is disposed of in the area of Chania without endangering human health and without harming the environment”. The facts are very different from those of the present case. They disclose a long-standing and continuing discharge of waste into a river and the harm to the environment is demonstrable and substantial.

“48. I therefore take the view that the balance of authority is against Mr Wolfe’s submissions. Even leaving aside authority, the proposition for which he contends should in my view be rejected. It would give to the relevant objectives an indeterminate status, lying in unsatisfactory middle ground between that which must be taken into account in the decision-making process and that which must be achieved by the decision. It is true that in the course of argument I had some concern that to treat the objectives ‘merely’ as material considerations might be to water down their legal status. Paragraph 2(1) of Schedule 4 to the 1994 Regulations does not use the language of taking the objectives into consideration. It requires that planning decisions be taken ‘with’ the relevant objectives. This may be contrasted with certain other statutory provisions which impose in terms an obligation to ‘have regard to’ specified objectives (e.g. Airports Act 1986 s.43(5), Police Act 1997 s.2(4)). I have come to the conclusion, however, that there is no real distinction between those formulations. What matters is that the objectives should be taken into consideration (or had regard to) as objectives, as ends at which to aim. If a local planning authority understands their status as objectives and takes them into account as such when reaching its decision, then it seems to me that the authority can properly be said to have reached the decision ‘with’ those objectives. The decision does not cease to have been reached with those objectives merely because a large number of other considerations have also been taken into account in reaching the decision and some of those considerations militate against the achievement of the objectives.

49. A further argument advanced by Mr Wolfe in support of the proposition that the objectives must amount to more than a material consideration is that it is generally open to a decision-maker to decide what weight to give to material considerations, whereas it must be contrary to the directive to give the objectives little or no weight. It may be that the general rule concerning the weight to be given to material considerations would need to be qualified in the case of the objectives and that it would amount to a misdirection to fail to give them substantial weight. I do not consider it necessary to decide that point in the present case because there was in my view no failure by the Council to give them substantial weight.”

Conclusion on “objective”

Conclusion - Thornby

Conclusion - Murray

Lord Justice Robert Walker:

Mr Justice Laddie:

Order: Both appeals dismissed.

Murray v Derbyshire: The respondents to have their costs of the appeal.

Thornby Farms v Daventry: The respondents to have one half of their costs of the appeal.

Permission to appeal to the House of Lords refused.