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QUEEN v. DERBYSHIRE COUNTY COUNCIL [2000] EWHC Admin 393 (6th October, 2000)
Case No: CO/1493/2000
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 6th October 2000
B e f o r e :
MR JUSTICE MAURICE KAY
|
THE
QUEEN
|
|
|
v.
|
|
|
DERBYSHIRE
COUNTY COUNCIL
|
|
Ex parte David Murray
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Wolfe (instructed by Public Interest Lawyers) for the Applicant)
Mr Evans(instructed by David W. Tysoe, Solicitor and County Secretary)
for the Respondent)
Mr Katkowski QC (instructed by Nabarro Nathanson) representing Fitzwise
Limited
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Aproved by the Court
Crown Copyright
MR JUSTICE MAURICE KAY:
1 Derbyshire County Council ("the Council") is the local planning
authority in relation to waste disposal facilities in its area. There is an
established landfill site known as the Hall Lane Site close to the village of
Barrow Hill which is just outside the town of Staveley. On 20 March 2000 the
Council, through its Environmental Services Planning Development Subcommittee,
granted planning permission for an extension in the use and duration of the
Hall Lane Site. This involved a larger area, the extraction of 120,000 tonnes
of clay, the incidental extraction of 1000 tonnes of coal and the provision of
a fourth waste cell with an additional 650,000 tonnes of waste disposal
capacity and extending the life of the landfill operation by about one year to
December 2005. The Applicant lives in Barrow Hill. He and other local
residents objected to the planning application on environmental and amenity
grounds. Following the grant of planning permission, he now seeks to challenge
that decision by way of an application for judicial review. The Respondent to
the application is the Council and Fitzwise Limited, the operator of the Hall
Lane Site, is an interested party. Permission to apply for judicial review was
granted by Elias J on 18 May 2000.
2 When I come to consider the four grounds of challenge put forward on
behalf of the Applicant, I shall have to refer to parts of the evidential
material as appropriate. However, it is appropriate to refer at the outset to
two factual aspects of the case which loomed large throughout Mr. Wolfe's
submissions. These are that the permitted development would have some adverse
environmental consequences and that there is no immediate need for the
permitted development. This latter aspect was expressed by the Council's
Director of Environmental Services in his Report to the Environmental Services
Planning Development Subcommittee in the following terms:
"The site is well located to serve the North East Sub-Area of Derbyshire and
currently
takes waste from Chesterfield and areas of North East Derbyshire closest to the
site. Hall Lane and Glapwell are the two main sites for the disposal of
household waste in the North East Derbyshire Sub-Area. Other approved landfill
sites are Erin Void and Egstow Quarry. The remaining reserves in these
existing or approved voids should be sufficient for waste arisings in this area
for up to 20 years. I therefore consider that there is an adequate supply of
facilities within the Sub-Area to meet its needs."
In the course of submissions, neither Mr. Evans on behalf of the Council nor
Mr. Katkowski QC on behalf of Fitzwise took issue with Mr. Wolfe's oft-repeated
submission that it cannot properly be claimed that there is any need, in waste
disposal capacity terms, for the development.
3 I now turn to the grounds of challenge.
Ground 1: failure to comply with current guidance as to the best
practicable environmental option ("BPEO").
4 In October 1999 the Secretary of State issued PPG10 under the title
Planning and Waste Management. Annex A concerns planning considerations
and planning conditions. Paragraph A1 requires waste planning authority to
consider the provision of waste management facilities within the context of,
inter alia, the BPEO. Paragraph A52 states:
"All locations need to be considered in terms of the [BPEO]."
This provision is new. It is not to be found in the earlier PPG23 of July 1994
which PPG10 partly replaces. PPG23 adopts the definition of BPEO put forward
by the Royal Commission on Environmental Pollution, viz:
"the outcome of a systematic consultative and decision making procedure which
emphasises the protection and conservation of the environment across land, air
and water. The BPEO procedure establishes for a given set of objectives the
option that provides the most benefits or the least damage to the environment,
as a whole, at acceptable cost, in the long term as well as in the short
term."
Mr Wolfe submitted that the Council simply did not consider paragraph A52 which
was clearly a material consideration and that it failed to undertake a
site-specific BPEO assessment. In order to consider this submission it is
necessary to refer to some of the documentary material.
5 The report of the Director of Environmental Services includes a
passage under the heading "the need to adopt the BPEO for individual waste
streams". The passage commences with the quotation of the Royal Commission's
definition of BPEO and continues:
"To be able to assess BPEO on a site specific basis would need the presence of
alternatives and further evolution in the guidance to enable it to be a more
decisive tool in reaching planning decisions."
It then refers to ongoing research into land use planning aspects of BPEO
before adding:
"BPEO is an important approach in planning decisions......There are clearly
also a number of other issues which need to be taken into account in the
planning process. Whilst under present knowledge it is difficult to assess
BPEO, facilities for the safe disposal of waste are necessary. This site would
provide for the safe disposal of the waste and it is not at the bottom of the
waste management hierarchy in that there are environmental benefits from the
energy currently recovered from waste by the utilisation by a local brickworks
of the landfill gas. There will clearly be a continuing need for landfill over
the life of the proposed site. The other benefits of this particular proposal
include the waste recovery, clay extraction and local utilisation, removal of
dereliction and appropriate reclamation. My overall assessment is that in the
circumstances the proposal is an acceptable waste management option in terms of
BPEO."
6 Against this background, Mr. Wolfe made the following submission.
First, paragraph A52 is not referred to anywhere in the documentation
and, by inference, it was not considered. Secondly, the Council did not
consider the specific site in terms of the BPEO but rather sought to justify
not doing so on the ground that to do so would be "difficult". Thirdly,
the reference in the Report to a "continued need" is inconsistent with the
earlier reference to an "adequate supply of facilities". Fourthy the
reference to waste streams in the heading of the relevant part of the
Report is indicative of a failure to appreciate a change in policy in PPG10
with its emphasis on a site-specific approach to the BPEO.
7 Mr. Evans, whilst accepting that paragraph A52 is in different terms
from what went before, disputed that it required a wholly new approach to the
application. A draft PPG10 had been a material consideration in Regina
v. Leicester County Council, ex parte Blackfordby & Boothorpe Action Group
Limited (Unreported, Transcript 15 March 2000) and its predecessor,
PPG23 was an issue in Regina v. Bolton Metropolitan Council, ex parte
Kirkman [1998] JPL 787, in which Carnwath J said (at p. 799):
"There is, however, no statutory duty imposed on the planning authority to
treat it as the determinative issue or the `correct question', if that is meant
to suggest that in every case the authority is required, as a first step, to
determine whether the particular process represents the BPEO for the raw
materials in question. It is a material consideration to which the authority
should have regard. In law, the weight to be given to it in any particular
case is a matter for them."
This approach was approved in the Court of Appeal (see Schiemann LJ at p. 807)
and was followed by Richards J in the Blackfordby and Boothorpe
case when he said (at para 64):
".....a detailed BPEO exercise was not required in relation to this
application, even if no such exercise had been carried out in relation to
individual sites at the stage of the draft Waste Local Plan. The Council was
entitled to take into account the BPEO concept in the way that it did."
Thus, although there had been a change in the content of the documents
attracting material consideration status between the two cases, the approach
remained substantially the same. Secondly, Mr. Evans submitted that
what is important is not whether paragraph A52 is expressly mentioned by or to
the Council but what they did in fact consider. In this regard, the Report of
the Director of Environmental Services contains what was in fact a
site-specific approach to BPEO, notwithstanding the reference to "waste
streams". These submissions were adopted and further refined by Mr. Katkowski.
I should add that in the Director's Report, in addition to that which I have
already quoted, there is a passage referring specifically to the partial
replacement of PPG23 by PPG10 and to BPEO as one of the four principles set out
in PPG10 (Bundle, pages 32-33). There is also material (Bundle, pages 50-51)
which, in my judgment, does exhibit a site-specific approach, notwithstanding
the difficulty to which the Director had referred in the passage which I quoted
earlier.
8 I have come to the conclusion that the submissions of Mr. Evans and
Mr. Katkowski are correct, that the advice contained in the Report of the
Director was adequate and sufficient on the BPEO issue and that the Applicant
has not established that the subsequent decision was afflicted by a failure to
have due regard to the guidance on the BPEO contained in PPG10
Ground 2: Failure to give effect to the "relevant objectives" prescribed
by the Waste Management Licensing Regulations 1994
9 Waste management has attracted the attention of European institutions.
Council Directive 75/442/EEC, as amended by 91/156/EEC and 96/350/EC,
prescribes a framework. It is usually referred to as the Waste Framework
Directive. Article 4 of the 1991 amendment requires Member States to
"take the necessary measures to ensure that waste is recovered or disposed of
without endangering human health and without using processes or methods which
could harm the environment, and in particular:
- without risk to water, air, soil and plants and animals,
- without causing a nuisance through noise or odours,
- without adversely affecting the countryside or places of special interest.
Member States shall also take the necessary measures to prohibit the
abandonment, dumping or uncontrolled disposal of waste."
In Article 7(1), the provisions of Article 4 are referred to as
"objectives".
10 The Waste Management Licensing Regulations 1994 ("the 1994
Regulations") were enacted to give effect to the requirements of the 1991
Directive. Paragraph 4(1) of Schedule 4 is headed "relevant objectives" and is
in the following terms:
"For the purposes of this Schedule, the following objectives are relevant
objectives in relation to the disposal or recovery of waste-
(a) ensuring that waste is recovered or disposed of without endangering human
health and without using processes or methods which could harm the environment
and in particular without-
(i) risk to water, air, soil, plants or animals; or
(ii) causing nuisance through noise or odours; or
(iii) adversely affecting the countryside or places of special interest."
11 Mr. Wolfe submitted that in the present case the Council did not give
proper consideration to these "relevant objectives" and that it was a legal
error not to give them substantial weight.
12 It is clear that the Council was made aware of Article 4 of the Waste
Framework Directive and its transposition into domestic law. The Applicant's
solicitors had raised it in correspondence and there is a section in the Report
of the Director of Environmental Services dealing with it. It concludes with
this advice:
"I consider therefore that the Article expresses a series of objectives to be
achieved, which the Authority should follow, but does not create an absolute
duty of that kind. If such a strict interpretation were to be followed then as
a matter of logic it is difficult to see how permission could be granted for
any means of disposing of waste; none can be shown to be entirely risk
free."
All parties approached the case on the basis that in this and other respects
the Report informed the decision of the Council.
13 Mr. Wolfe diligently took me through the jurisprudence of the
European Court of Justice on the Waste Framework Directive, particularly
Ministere Public v. Oscar Traen [1987] ECR I - 2141 and
Comitato di Coordinamento per la Difesa Della Cava v. Regime
Lombardia [1994] ECR I - 483. He was similarly helpful to Richards J
when appearing for the applicant in Blackfordby & Boothorpe Action
Group Limited. I intend no discourtesy to the thoroughness of Mr.
Wolfe's research and submissions if I concentrate first on the judgment of
Richards J. As in the present case, one of the issues concerned the parameters
of the burden placed on a waste planning authority by the "relevant
objectives". Richards J said (at paras 42-43):
"Mr. Wolfe accepts that the objectives are not absolute requirements in the
sense of requiring a local planning authority in each case to achieve
the result pursued by the objective. That would amount to a requirement to
refuse planning permission if there were any risk to human health or the
environment, which would in turn lead to the refusal of planning permission for
any or almost any landfill site.....The submission made, however, is that the
relevant objectives nonetheless impose more onerous obligations on local
planning authorities that would be the case if they fell simply to be taken
into account as material considerations. In particular, the Waste Framework
Directive, and therefore the 1994 Regulations giving effect to it, should be
interpreted as requiring the authorities to avoid or minimise any risk to
health or to the environment, or.....to do all that is practical to achieve the
objectives."
Richards J then referred to the European cases and also to the judgment of
Schiemann LJ in ex parte Kirkman (at p. 805) before concluding
(para. 49):
"I take the view that the balance of authority is against Mr. Wolfe's
submissions. Even leaving aside authority, the proposition for which he
contends should in my view be rejected. It would give to the relevant
objectives and indeterminate status, lying in the unsatisfactory middle ground
between that which must be taken into account in the decision - making process
and that which must be achieved by the decision.....What matters is that the
objectives should be taken into consideration (or had regard to) as
objectives, as ends at which to aim. If a local authority understands
their status as objectives and takes them into account as such when reaching
its decision, then it seems to me that the authority can properly be said to
have reached the decision `with' those objectives. The decision does not cease
to have been reached with those objectives merely because a large number of
other considerations have also been taken into account in reaching the decision
and some of those considerations militate against the achievement of the
objectives."
All that, it seems to me, is both good sense and good law. In the present
case, Mr. Wolfe sought to circumvent it by reference to factual differences
between the two cases (in particular, the lack of proven need here) and to one
submission which Richards J expressly left open. He said (para. 50):
"A further argument advanced by Mr. Wolfe ......is that it is generally open to
a decision - maker to decide what weight to give to a material consideration,
whereas it must be contrary to the Directive to give the objectives little or
no weight. It may be that the general rule concerning the weight to be given
to material considerations would need to be qualified in the case of the
objectives and that it would amount to a misdirection to fail to give them
substantial weight. I do not consider it necessary to decide that point in the
present case because there was in my view no failure by the council to give
them substantial weight."
Mr. Wolfe's submissions in the present case require a decision on the point
there left open by Richards J. The argument is that, in the absence of proven
need and in all the circumstances of this case, the affording of substantial
weight to the objectives could result in only one conclusion, namely the
refusal of planning permission.
14 I can well see why, from an environmentalist perspective, this
approach has its attractions. Although Mr. Wolfe did not put it in precisely
this way, it does seem a little odd that obligations arising from supranational
negotiations and expressed in apparently strong language are reduced in
national implementation to material considerations of unquantifiable weight.
On the other hand, as Mr. Katkowski pointed out, the judicial creation of a
special category of consideration attracting substantial weight as a matter of
law would represent a radical departure from first principles in this area and
would also generate numerous disputes as to what is "substantial weight" in the
context of a particular case. I have in mind that in other areas of law
"substantial" is given the somewhat limited meaning of "more than minimal".
15 In my judgment, it would not be appropriate for me to extend the law
in the way Mr. Wolfe invited me to do. I am satisfied that the limits of the
obligations imposed upon the Council are those so clearly set out by Richards
J. Applying that to the facts of the present case I have no doubt that the
Council had due regard to the relevant objectives and that whatever weight was
afforded to them is not susceptible to challenge. Accordingly, this ground of
challenge fails.
Ground 3: failure to give effect to the precautionary
principle
16 Article 174 (previously 130r) of the EC Treaty, having provided that
Community Policy on the environment "shall contribute" to specified objectives,
states:
"Community policy on the environment shall aim at a high level of protection
taking into account the diversity of situations in the various regions of the
Community. It shall be based on the precautionary principle and on the
principles that preventative action should be taken, that environmental damage
should as a priority be rectified at source and that the polluter should
pay."
Mr. Wolfe submitted that it was incumbent upon the Council to give effect to
these principles, and in particular the precautionary principle, when
considering the application for planning permission in the present case. He
conceded that if there were an identical pressing need for the facility, the
precautionary approach would not necessarily prevent a grant of permission.
However, in the absence of such a need and in the light of existing knowledge,
the application of the precautionary principle in the present case pointed
inexorably to a refusal. His reference to existing knowledge embraced material
indicating uncertainties about health risks in relation to persons living close
to landfill sites and the fact that the Government had commissioned research
into the matter which was expected to be completed in summer 2000. All these
were material considerations.
17 Whilst it is true that the Report of the Director of Environmental
Services did not refer in terms to the precautionary principle, it did refer to
the Waste Framework Directive and its transposition into English Law in the
1994 Regulations. They are, in effect, a restatement of the precautionary
principle in the context of this case. Mr. Evans and Mr. Katkowski made
forceful submissions against this ground of application. To the extent that it
seeks to raise a free-standing principle of inexorable application in the
circumstances, they rely on what Richards J said in Blackfordby and
Boothorpe (para. 66):
"It is difficult to see precisely how Mr. Wolfe seeks to rely on the
precautionary principle. He accepts that the principle as contained in the EC
Treaty does not have direct effect. Although it is said to illuminate the
Waste Framework Directive and the implementing provisions of the 1994
Regulations (which undoubtedly reflect the principle), it does not in my view
take any further the arguments already considered in relation to those
matters."
Thus, it was submitted, Mr. Wolfe has previously lost this argument and it is
unsustainable here. In my judgment, there is irresistible force in this
submission. To the extent that Mr. Wolfe is seeking to recast the argument to
one which simply contends that the Council failed to have regard to the
precautionary principle as a material consideration, I find that too
unsustainable. For one thing, it adds nothing to Ground 2, above. Moreover, I
am unable to find that there was a failure to have regard to the principle in
any event.
Ground 4: Berkeley v. Secretary of State
18 Shortly before the hearing of this application, the House of Lords
decided Berkeley v. Secretary of State (6 July 2000). As a
result, Mr. Wolfe sought permission to amend his application to add a fourth
ground alleging that the Council
"erred in law in granting planning permission having considered an
Environmental Statement which failed to comply with the mandatory requirements
of the Town and Country Planning (Assessment of Environmental Effects)
Regulations 1988."
He sought to justify the lateness of his application to amend by contending
that, prior to the decision of the House of Lords, the decision of the Court of
Appeal in Berkeley was against such a ground. Mr. Evans and Mr.
Katkowski opposed the amendment but frankly conceded that they were in a
position to deal with the new ground without adjournment. I agreed to hear the
rival substantive submissions. I have come to the conclusion that it is
appropriate and just to permit the amendment.
19 It is common ground that the application for planning permission in
this case attracted the provisions of the 1988 Regulations which imposed upon
Fitzwise an obligation to produce an environmental statement (ES) which
complied with the requirements of the Regulations. In fact they did produce a
document purporting to be an ES. With its appendices, it exceeded fifty pages.
Mr. Wolfe submitted that, nevertheless, it did not comply with the requirements
of the Regulations and that, following Berkeley, the decision to
grant planning permission on the basis of an application with a flawed ES was
an unlawful decision.
20 In Berkeley no document purporting to be an ES
accompanied the planning application and neither the local planning authority
nor the Secretary of State, who "called in" the application, required one. It
was common ground that this was a fundamental flaw. The argument on behalf of
the Secretary of State in the House of Lords was that there had nevertheless
been substantial compliance with the requirements in that the equivalent of an
ES could be found by piecing together information from a number of different
documents from different sources some of which incorporated or cross-referred
to others. Lord Hoffmann rejected this argument. He said:
"........I do not consider that this paper chase can be treated as the
equivalent of an environmental statement. In the first place I do not think it
complies with the terms of the Directive. The point about the environmental
statement contemplated by the Directive is that it constitutes a single and
accessible compilation, produced by the applicant at the very start of the
application process, of the relevant environmental information and the summary
in non-technical language.......I do not think it allows Member States to treat
a disparate collection of documents produced by parties other than the
developers and traceable only by a person with a good deal of energy and
persistence as satisfying the requirement to make available to the public the
information which should have been provided by the developers."
Is the present case a Berkeley case? In my judgment it is not.
No paper chase is necessary. Fitzwise submitted a lengthy document. The
Council had the power to require further information (regulation 21) but did
not do so. Neither did the Applicant request the Council to exercise that
power. Indeed, no criticism was made of the document until very shortly before
the hearing. Whatever may be said about the state of law between the decisions
of the Court of Appeal and the House of Lords, it was not such as to inhibit
criticism of an ES if it were thought to be defective or deficient. In all the
circumstances I am quite satisfied that Berkeley does not, and
was not intended to, apply to a case such a this. It would be most unfortunate
if a document described as an ES could be treated by all parties as an ES up to
and beyond a planning decision and only be called in question in a subsequent
application for judicial review. In the course of the hearing I was provided
with detailed submissions from all parties as to whether or not the document in
this case complied with the requirements of the Regulations. I do not believe
that it will be necessary or helpful for me to rehearse those submissions. It
is sufficient for me to state that, in my judgment, Fitzwise's document
complied or, at the very least, substantially complied with the requirements of
the Regulations in relation to ESs.
Conclusion
21 It follows from what I have said that I am not persuaded by any of
the grounds of challenge in this case and that the application for judicial
review is accordingly refused.
- - - - - - - - - -
MR JUSTICE MAURICE KAY: In this matter the application for judicial
review is refused for the reasons set out in the judgment handed down today.
MR CARTER: May it please your Lordship, I appear today for the
respondent. My learned friend, Mr Smith, appears for the interested party; and
my learned friend, Mr Wolfe, for the applicant. In those circumstances, I
would invite your Lordship to order that the claimant should pay the
respondent's cost in this application; that the amount of those costs should be
subject to detailed assessment if they cannot be agreed; and that the
determination of the amount of those costs, which it is reasonable for the
claimant to pay, is postponed pursuant to regulation 127 the Civil Legal Aid
General Regulations 1998.
MR JUSTICE MAURICE KAY: It is a legal aid case, is it?
MR CARTER: It is, my Lord, yes.
MR JUSTICE MAURICE KAY: How long did the hearing take?
MR CARTER: It went into a second day. The estimate for length of hearing
was two days.
MR JUSTICE MAURICE KAY: Nobody has prepared a summary?
MR CARTER: No, well certainly not my clients, and I have not seen one
from any other party.
MR WOLFE: If it assists, I do not have a reference but where the party
against whom an order is proposed to be made out of the benefit of public
funding, I think there are some assessment rules that discourage summary
assessments, even if it would be otherwise appropriate.
While on my feet, my client has the benefit of public funding.
MR JUSTICE MAURICE KAY: Is there any contribution?
MR WOLFE: No, my Lord. Subject to the wording being correct, I cannot
resist the usual order.
MR JUSTICE MAURICE KAY: As far as concerns the respondent's cost there
will be an order in the form in which it is sought.
MR SMITH: I appear, as my learned friend indicated, for the interested
party. There was on the 26th May the hearing of an application for an interim
judgment, in respect of which the costs of that matter were to be costs in the
substantive application. The first respondent, the County Council was not
present nor represented at that application. On the same basis, the same legal
aid basis, I ask that I should have the costs for that hearing.
MR JUSTICE MAURICE KAY: That was an application effectively against
Fitswise Limited who were operating the site and it sought interim relief, an
injunction to stop you availing yourselves of the planning permission pending
the hearing.
MR SMITH: Just so.
MR JUSTICE MAURICE KAY: It was a contested application which was not
granted.
MR SMITH: It came to be that the matter was resolved between the
parties, Fitzwise Limited undertaking that at the hearing it would not rely on
any prejudice that
might be caused to it by reason of it having carried out any works.
MR JUSTICE MAURICE KAY: But it did not undertake not to act.
MR SMITH: It did not. It undertook not to rely on its actions in
accordance with the permission in the substantive hearing as to any question of
relief. But it was agreed, as I understand it, that the costs of that
application were to be costs in the substantive application.
MR JUSTICE MAURICE KAY: What are you asking for? Simply an order in
relation to the hearing of 26th May and no more?
MR SMITH: Yes.
MR WOLFE: Again I cannot resist the principle of that, but again
obviously ask for it on the same legal aid terms.
MR JUSTICE MAURICE KAY: Certainly.
MR WOLFE: I have a separate application, which is an application to your
Lordship for permission to appeal arising in relation to one of the grounds
dealt with by your Lordship, which was ground 2, as your Lordship has described
it. That is in relation to the relevant objectives and the Waste Management
Licensing Regulations 1994. Your Lordship will recall that.
First of all, I should say that between your Lordship dealing with this
matter and giving judgment, judgment has been given in another case which deals
with the Article 4 objectives, although not quite the same
point your Lordship has had to deal with. Permission was granted in that
matter by Mr Justice Collins. That matter will be going to the Court of Appeal.
Therefore, the Court of Appeal will be wrestling with the proper
application.
MR JUSTICE MAURICE KAY: Is that the one I saw in The Times the other
day. You appeared for the applicant?
MR WOLFE: Indeed.
MR JUSTICE MAURICE KAY: That was a substantive hearing. You failed, but
Mr Justice Collins gave you leave to go to the Court of Appeal. It was a
totally different point.
MR WOLFE: It is, although the Article 4 point is part of the appeal. I
have not seen the Times Law Report, but I suspect that that did not deal with
the Article 4 point because the Article 4 argued in that case was not the one
that your Lordship grappled with and was not an argument available to us at
first instance in that case because it effectively had been decided against us
at first instance on that point.
MR JUSTICE MAURICE KAY: Let me be perfectly clear about this. You are
only seeking permission to appeal in relation to the Article 4 point?
MR WOLFE: There are two points I would wish to argue before the Court of
Appeal. One is the Article 4 point and one is the Berkeley point, as
your Lordship has characterised it. So not the not the other two points.
MR JUSTICE MAURICE KAY: As far as concerns the Article 4 point, did you
seek permission to appeal against the judgment of Mr Justice Richards in the
Blackfordby case?
MR WOLFE: Yes, my Lord.
MR JUSTICE MAURICE KAY: I think you told me at the hearing. Did you
succeed or fail?
MR WOLFE: I failed.
MR JUSTICE MAURICE KAY: You were refused permission by the Court of
Appeal?
MR WOLFE: Yes.
MR JUSTICE MAURICE KAY: The point you want to pursue is the one that Mr
Justice Richards left open and the one that I resolved against you.
MR WOLFE: Yes, which was not ventilated before the Court of Appeal in
the application in that case.
MR JUSTICE MAURICE KAY: No, because of the finding in the substantial
way.
MR WOLFE: Exactly. I hope that is clear. In terms of the test, I am sure
I do not need to remind your Lordship, is one of no real prospect of success.
I draw your attention to what your Lordship identified as appearing a little
odd, which is in paragraph 14 of your Lordship's judgment. That is the apparent
distinction between an obligation arising from supernational negotiations
expressed in -- as your Lordship put it -- apparently strong language and their
domestic implementation. The difficulty which is faced -- I can take your
Lordship to the Marleasing judgment which I think is on your Bench as
necessary, but what we are here seeking to do is to have domestic legislation,
which in its text directly transcribes the form of directory, construed. That
is not in my submission inviting the court to do other than
that which it is obliged to do under the form of the implementing
regulations.
Therefore, in my submission, the matter your Lordship has identified as
being somewhat odd is precisely a matter which has very much a real prospect of
success and which the Court of Appeal needs to consider both in this case and
clearly more generally, because your Lordship will appreciate the point raised
in this case is one of much wider public importance, in the sense that any
waste management case, be it a landfill or an incinerator, is going to raise
the same questions because the same threat is in play in every case.
MR JUSTICE MAURICE KAY: What to you want to say about Berkeley?
MR WOLFE: In relation to Berkeley your Lordship has dealt with
that in two ways. First, in distinguishing -- quite clearly correctly --
whether or not the Barkeley case was about whether or not there was an
EIA. That is clearly a material distinction. In my submission, the point goes
further than that, which is as to the content of the EIA and in particular as
to the specific requirements led by the individual elements of the regulations.
Your Lordship has found that there was compliance. But in exactly the same way
as in the Berkeley case that was a matter which precisely the Court of
Appeal, and in due course the House of Lords, wrestled with on the bigger
question. In my submission, that is a matter which is properly dealt with as a
question of law not as a question of fact in relation to the content of the
EIA.
Merely having a document which says it is an EIA and which appears to have a
lot of material in it is not sufficient and the live question -- and it is, in
my submission, a question of law -- is what is precisely required in the
content. In my submission, there is at the very least a real prospect of
success on appeal of that matter.
MR JUSTICE MAURICE KAY: Thank you very much. Any representations for
the respondent on that or Mr Smith on that? .
MR CARTER: Only in respect of the point in relation to the second ground
of the application. My learned friend refers to the situation which your
Lordship refers in his judgment about appearing somewhat odd at first sight.
Of course your Lordship approved the formulation of my learned friend, Mr
Katkowski when he pointed out in his submissions that my learned friend's point
would amount to a radical departure from first principles.
MR JUSTICE MAURICE KAY: Yes, but radical departures sometimes occur.
MR CARTER: Yes, but in my submission, this is not a case where the
situation is ambiguous or unclear and requires clarification. The law is clear.
Your Lordship applied it according to the authorities.
MR JUSTICE MAURICE KAY: Anything to add?
MR CARTER: My Lord, nothing.
MR JUSTICE MAURICE KAY: Mr Wolfe, I propose to give you permission on
the Article 4 point, but I shall not give you permission on the Berkeley
point. So far as concerns
the Article 4 point I chose my language carefully , as I hope I did in the rest
of the judgment. The form of language I chose was not to discourage you from
making the application you have just made. I think that the High Court ought to
look at it.
If you have this pending appeal arising out of Mr Justice Collin's
judgment, which is on Article 4, albeit different, would it be sensible if the
two were heard together?
MR WOLFE: I am sure that it would.
MR JUSTICE MAURICE KAY: When did Mr Justice Collins --
MR WOLFE: The notice of appeal on that matter has only gone in in the
past few days. Judgment was given on that formally at the beginning of
September.
MR JUSTICE MAURICE KAY: The appeal is not far advanced.
MR WOLFE: My Lord, no. The papers have only just been lodged in the last
few days.
MR JUSTICE MAURICE KAY: Who are the respondents in that case?
MR WOLFE: Daventry District Council. That arises in an incinerator
licensing context rather than in a planning context.
MR JUSTICE MAURICE KAY: Yes. The approach of an authority to Article 4;
it is a question of weight.
MR WOLFE: My Lord, yes.
MR JUSTICE MAURICE KAY: Is that common to both cases?
MR WOLFE: It is. In the sense the other case is the bolder submission,
if you like, which is the submission as to doing all that is reasonably
practicable. That
arises because the factual context is very different.
MR JUSTICE MAURICE KAY: It is your judgment that there would be
advantages in them both being heard together.
MR WOLFE: I am sure that would be right. Certainly the Court of Appeal
in both cases would have to look fundamentally at the same authorities on the
Article 4 point. The other case raises other points as well.
MR JUSTICE MAURICE KAY: It is not fair to ask the respondents here
whether they have any views on the matter because you probably know very little
about the matter.
MR CARTER: That is correct, my Lord.
MR JUSTICE MAURICE KAY: Is that the same for the interested party? You
would not be party to any appeal here.
MR SMITH: I was seeking to see if we would want to be in on that. We
probably would be parties.
MR WOLFE: They would be entitled to be there. The costs position would
be even weaker than it was today, but they would be entitled to be there.
MR JUSTICE MAURICE KAY: That depends on any course any appeal may take.
I am wondering whether to order whether they be joined or merely to order that
consideration be given to joining them and then somebody in civil appeals can
communicate with the parties.
MR WOLFE: If your Lordship is able to order it, then I would encourage
that because the adding of this case to the other case will not add any time to
the appeal in the other case, or very little time, whereas clearly adding
that case to this would add time to this case because the other case raises
free-standing arguments that do not arise here. But the Court of Appeal's time
overall would be greatly saved by adding the two together.
MR JUSTICE MAURICE KAY: I am not sure that I can order it. It is rather
like expedition in the Court of Appeal -- one hopes it takes place but it is a
matter for the Court of Appeal.
MR WOLFE: I think that may be right. I will encourage your Lordship to
do whatever you can to encourage it.
MR JUSTICE MAURICE KAY: I will simply say that I shall direct that
consideration be given to the joinder of this appeal with the one in the
Daventry District Council case. Could you give the associate a full reference
for that before you leave the court? Anything else?
MR WOLFE: Legal aid taxation.
MR JUSTICE MAURICE KAY: Yes.
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