England and Wales High Court (Administrative Court) Decisions

Legislation:

The Ministers may make such orders as they think fit –

a) generally for the better execution of this Act, or for the purpose of in any manner preventing the spreading of disease;

b) in particular for the several purposes set out in this Act, and for prescribing and regulating the payment and recovery of expenses in respect of animals.

Recitals

Whereas, in order to avoid any risk of dispersion of pathogens, animal waste should be processed in an approved and supervised processing plant or disposed of in another suitable manner; whereas, in addition, animal waste associated with a high risk should be collected and transported directly to a processing plant designated by the Member State concerned; whereas, in certain circumstances, especially when this is justified by distance and time of transport, the designated processing plant could be located in another Member State.

Article 1

(1) This Directive lays down:

a) the animal and public health requirements for the:

(i) disposal and/or processing of animal waste in order to destroy the pathogens which might be present in such materials…

Article 2

For the purposes of this directive, the following definitions shall apply:

(1) Animal Waste – carcasses or parts of animals or fish, or products of animal origin not intended for direct human consumption, with the exception of animal excreta and catering waste;

(2) High-risk material – animal waste referred to in Article 3 which is suspected of presenting serious health risks to animals or man;

(3) Low-risk material – animal waste other than that covered by Article 3, which does not present serious risks of spreading communicable diseases to animals or man; …

Chapter 2 - Rules concerning the processing of animal waste and the placing on the market of the final product

(A) High risk material

Article 3

(1) The following high-risk material must be processed in a high-risk processing plant approved by the Member State in accordance with Article 4(1), or disposed of by burning or burial in accordance with paragraph 2:

(i) animal waste containing residues of substances which may impose a danger to human or animal health; milk, meat or products of animal origin rendered unfit for human consumption by the presence of such residues; …

(2) The competent authorities may, where necessary, decide that high-risk material must be disposed of by burning or by burial where:-

- Transport to the nearest high-risk material processing plant of animals infected or suspected of being infected with an epizootic disease is rejected because of the danger of propagation of health risks,

- The animals are infected with or suspected of being infected with serious disease or contain residues which could constitute a risk to human or animal health and which could survive inadequate heat treatment,

- A widespread epizootic disease leads to a lack of capacity at the high risk material processing plant,

- The animal waste concerned originates from places with difficult access,

- The quantity and the distance to be covered does not justify collecting the waste.

Burial must be deep enough to prevent carnivorous animals from digging up the cadavers or waste and shall be in suitable ground so as to prevent contamination of water tables or any environmental nuisance. Before burial, the cadavers or waste shall be sprinkled as necessary with a suitable disinfectant authorised by the competent authority.

Part I - Interpretation and Scope

3. (1) In this Order, unless the context otherwise requires –

“animal by-products” means –

a) animal carcasses,

b) parts of animal carcasses (including blood), or

c) products of animal origin,

not intended for human consumption, with the exception of animal excreta and catering waste;

“high risk material” means animal by-products of the following description, or any material containing such by-products -

a) animal by-products which present a serious risk of spreading communicable disease to man or animals;

g) all animal by-products (other than hides, skins, hooves, feathers, wool, horns, blood and similar products) which are from animals (other than fish, crustaceans or molluscs), slaughtered in the normal way if either –

i) the animal by-product is not presented for post mortem and veterinary inspection; or

ii) during post mortem veterinary inspection, the animal by-product shows gross pathological lesions indicating disease communicable to man or animals.

j) animal by-products containing residues of substances which may pose a danger to human or animal health, or milk, meat or products of animal origin rendered unfit for human consumption by the presence of such residues.

(3) The provisions of this Order shall not apply in relation to –

a) hides, skins, shells, hooves, feathers, wool, horns, blood and similar products which are not used in the manufacture of feeding stuffs but shall apply to such products when originating from animals which show clinical signs of any disease communicable through that product to man or animals.

[Again, the Second Claimant accepted in submissions before me that the maggot waste with which these proceedings are concerned, was high risk material within the meaning of the 1999 Order.]

Part II - Disposal of high-risk and low-risk material

Scope of Part II

4. The provisions of this Part shall apply in relation to all high-risk and low-risk material

Restrictions on disposal of animal by-products

5. (1) Subject to the following provisions of this article, any person who has in his possession or under his control any animal by-product shall without undue delay consign it for or dispose of it by –

(a) rendering or part rendering in approved premises;

(b) incineration;

(c) burning other than in an incinerator, or burying, if –

(i) it is in a place where access is difficult or

(ii) the quantity of by-product and the distance to premises in which disposal is otherwise permitted under this Article do not justify transporting it;

(f) treatment at an approved knacker’s yard, or feeding to zoo, circus or fur animals, recognised packs of hounds or maggots farmed for fishing bait at premises registered under Article 13…

(2) If the appropriate Minister serves on the person in charge of any animal by-product a notice certifying that -

(a) ……

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

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

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

Burial of animal by-products

11. Any person burying animal by-products shall

(a) sprinkle them with a suitable disinfectant if this will help prevent the spread of disease; and

(b) bury them in such a way that carnivorous animals cannot gain access to them.

Compliance with notices

31. Any notice served under this Order shall be complied with at the expense of the person on whom the notice is served, and if it is not complied with, an inspector may arrange for it to be complied with at the expense of that person.

Enforcement

33. (1) …..

(2) Other than as specified in paragraph 1, this Order shall be enforced by the local authority.

Section 6 – Acts of Public Authorities

(1) it is unlawful for a public authority to act in a way, which is incompatible with a Convention right.

Section 7 - Proceedings

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by Section 6(1) may –

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

….

(6) in sub-section (1)(b) “legal proceedings” includes –

(a) proceedings brought by or at the instigation of a public authority; and

(b) an appeal against the decision of a court or tribunal.

Section 22 - Short title, commencement, application and extent

(4) paragraph (b) of sub-section 1 of Section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that sub-section does not apply to an act taking place before the coming into force of that section.

Article 6 – Right to a fair trial

(1) In the determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The First Protocol

Article 1 – Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

FACTUAL BACKGROUND

“Unfortunately, I bit off more than I could chew and my incinerator was not operating efficiently, so I was having to store the maggot waste on the land adjacent to the knackers yard. I covered it with manure from [the Second Claimant’s] dairy farm so that it wasn’t obvious. I also took some of it up to the land at Woodlinkin and piled it up, again with cow manure mixed in and covering it. It was these two piles of material which were the subject of notices issued on 20^th April 2000 by the Environment Agency and the County Council. I had also taken some of the manure and maggot waste and spread it on the other land, which I rented at Woodlinkin. When the authorities found out about this [the Second Claimant] was hopping mad and ploughed in the manure and maggot waste which had been already spread on the land.”

“Mr Ridgeway [a Ministry Veterinary Officer] identified the material on the first field as a mixture of liquid slurry, manure and maggot waste which contained recognisable poultry material (claws and part of a leg) and red stained material with red maggots present. He identified the material in the second field as being slurry and manure type material which contained maggot waste and which Derbyshire County Council officials believed was spread by a muck-spreader. The second field also contained recognisable parts of pig and poultry carcasses such as skin, poultry feet, pig claws and a pig trotter. A further field was not inspected by a Ministry Veterinary Officer as it was not discovered by Derbyshire County Council until 10^th April. However, I understand from council officials that this field had also been spread with a slurry/maggot waste mix, containing recognisable parts of animal carcasses. In a large heap on a further field, Mr Ridgeway identified maggot waste which appeared to have been there for some time and which contained recognisable pieces of pig and poultry carcasses, including a whole decomposing poultry carcass, poultry skin, spinal column, leg, wing, feet and bone, as well as fish bones, a pig’s jawbone a pig’s trotter, a decomposing front leg of a calf and skin with the attached tissue of either a pig or a calf.”

“It will be difficult to accept that their presence in the field in question was due to the incorporation of maggot waste, particularly in the presence of cattle manure and chicken litter”.

Professor Keevil continues:-

“Most pathogens would be considered to be dead within a one year period from introduction to soil and therefore pose little or no threat to animals and humans (Nicholson et al, 2000).Since the pathogens, if any, have been buried beneath the surface of the soil and the land is not open to public use, or for grazing animals, the inversion of the land would seem to be an extreme and unnecessary measure”.

Notice requiring the First Claimant to dispose of animal by-products

“I, the undersigned, an Officer of the Ministry of Agriculture, Fisheries and Food, being satisfied that you are in charge of animal by-products (“the Animal Waste”) deposited on (a) a field situated at Bardon Farm…and (b) a field situated at Hog Barn Lane and Woodlinkin/Loscoe…, in exercise of the powers conferred on the Minister of Agriculture, Fisheries and Food by Article 5(2) of the Animal By-Products Order 1999, and of all other powers enabling him in that behalf –

HEREBY GIVE NOTICE CERTIFYING that there is a lack of capacity at a rendering premises or incinerators for disposal of the Animal Waste by rendering, part-rendering or incineration for the reason that the Animal Waste has been ploughed into and mixed with soil on, the Fields.

AND THAT YOU ARE REQUIRED to dispose of the Animal Waste by burial in accordance with the particulars specified in Annex A to this Notice. Under Article 5.2 of the Animal By-Products Order 1999 you are under an obligation to comply with this Notice without undue delay.

FAILURE TO COMPLY WITH OR BREACH OF this Notice may result:

a) in arrangements for compliance being made by an inspector at your expense; and/or

b) in prosecution.

YOU MAY, by application made in writing delivered to me at the above-mentioned address within 7 days of this Notice being served on you, request a reconsideration of this Notice. Your application must specify the grounds, either as to fact or as to law, or as to both, upon which it is based. This facility does not affect your right to challenge or seek review of this Notice before any appropriate Court.

This Notice remains in force until it is suspended or revoked by a subsequent notice served on you.

Method of Disposal

Either (Method A)

Disposal by means of landfill by

(i) excavation of the top two feet of soil/animal waste from the surface of the fields and

(ii) transport of such excavated soil/animal waste to and burial at, a suitable licensed landfill site.

Or (Method B)

Disposal by means of burial on the fields by –

(i) excavation of the top one foot of soil/animal waste from the surface of the fields:

(ii) burial of such excavated soil/animal waste in a series of parallel four foot deep trenches dug across the fields and

(iii) coverage of the buried soil/animal waste by the soil excavated from the trenches to a depth of three feet.

Such other means as an inspector of Derbyshire County Council (“an Inspector”) may require, by notice in writing served on you.”

“I wish to clarify our position concerning a meeting to discuss these matters which you raised in your telephone conversation with Mr May on 25^th July. I understand it was your wish to consider alternative methods of disposal outside those identified as Method A and Method B in the Notice. Your alternative might briefly be summarised as ‘leaving the land as it is’.

As we are not prepared to discuss such methods, it was agreed by both your Mr Bodnar and Mr May that there would be little point in a meeting at this stage”.

“In carrying out the work, the agricultural under-drainage system would be destroyed. The soil structure, which has been carefully built up through the aftercare period and subsequent agricultural use, would also be destroyed. Inferior quality/overburden would be brought to the surface, making normal farming practices impossible”.

In paragraph 6, Mr Baker then recommends ten steps to be taken if the work is carried out, including a suggested reinstatement of an agricultural under-drainage system and the importation of suitable soils to re-establish the agricultural usefulness of the land. Mr Baker suggests that reinstatement costs for the field, which he was considering, would be in the region of £78,000.

“In summary and by reference to my instructions… I confirm that ten holes were dug on the Order field but photographic records could not be taken. The holes were visually inspected and I found no signs of animal carcasses or discernible flesh in any of the holes. I examined the Order field over its surface and along some of the boundaries and found no evidence of holes dug by carnivorous animals. I found no materials, which would be attractive to carnivorous animals. All the samples of farmyard manure found and the manure in the heaps were clearly well rotted and decayed and there was no sign of any physical disturbance anywhere. In one small area of bare soil, I found at least two dozen bones and bone fragments, which I believe to be from chickens. I found a few bones on a very small area of the manure heap. All appeared to be clean. There were no signs of any physical disturbance to the bones or the surrounding area”.

“If the MAFF Technical and Policy views are now that the burial is no longer necessary, we will need to be able to refer to the report in public statements, and clearly we will need to explain the revised position of the County Council.

I note that you have some reservation and difficulty in our request for additional technical expert involvement, but I am advised that this is considered to be absolutely essential to enable the County Council to properly justify discretionary action.,”

“It is our firm view that the County Council should do the work, as originally specified, as soon as possible. We consider that the works as described in the notice of July 19^th are still necessary and proportionate to the risks, and that other circumstances, such as enforceability, also needed to be taken into account.

We still endorse the technical view of Mike Watkin-Jones on the micro biological risks associated with the deposit of maggot waste on agricultural land, expressed in his correspondence of 23 May, 25 October and 3 November 2000. These risks still exist and are not diminished. His view expressed on 25 October in respect of Loscoe does not, in our view, make the burial in accordance with the notice disproportionate. Although the visible contamination is deemed to be less than that at Bardon Farm, there is still a real microbiological risk that needs to be addressed in an effective and enforceable way. The lack of appropriate action by the respondents to the notices served on them leads us to believe that to follow the line of fencing and leaving fallow the land at Loscoe is not a viable or enforceable option. This view is reinforced by Langton’s disregard of separate MAFF notices suspending the operation of his knacker yard and SRN incinerator…. Also we understand that as the public has access to this land by means of the footpath, barring that access might create other difficulties. We would not want people walking their dogs over such land where the maggot waste has not been effectively removed. We still believe that this course of remedial work is proportionate to the current risk, both at Bardon Farm and at Loscoe.”

“The operation of leaving the ground fallow and ungrazed for two years is not one that we consider appropriate, both from the risk to animal health and the question of enforceability which has already been addressed above”.

“Agreed the above exercise [the proposed trenching] will take months, be labour intensive, very costly and has probably not been considered in this detail by the council. An effective alternative is to fence the land at Loscoe, and cover it with soil/making material. This too would take some months but the maggot waste has been buried for the best part of a year now and MAFF has been careful not to suggest that there is imminent risk of harm”.

“In my opinion, the above evidence indicates the lack of competent supervision by an appropriately qualified engineer leading to an increased risk of ground contamination.”

The Grounds

Neither the Animal Health Act 1981 nor the Animal By-Products Order 1999 contain any provision which would allow an appeal against a notice to an independent or impartial tribunal. This is to be contrasted with other provisions dealing with public health and safety. For example, my attention was drawn to Section 161C of the Water Resources Act 1991, which provides for an appeal by any person on whom a works notice is served by the Environment Agency to the Secretary of State. (It is to be noted, however, that regulations made under that section may prescribe cases in which a works notice is, or is not, to be suspended until the appeal is decided – see Section 161C(4)(b)).

“7. The Animal By-Products Order 1999 does not contain an appeals procedure as such a procedure is considered impracticable, having regard to the subject matter and the objectives of the Order. The primary aim of the Order is to protect animal health. Where animal by-products are not handled in accordance with Order, or if they pose a particular health risk (e.g. diseased carcasses) there would often be a need to act immediately to remove the risk to animal and human health. In such circumstances, time is of the essence to ensure that the health of live animals, and possibly the public, is not put in jeopardy. An appeals procedure would prevent such a prompt action being taken, increasing the risk to animal and public health and potentially leading to the damage or destruction of other people’s property. It could also mean that MAFF would be open to legal challenge by the European Commission for failure to fulfil the United Kingdom’s obligations under the Treaty of Rome to enforce the Directive properly.

8. There is a balance to be struck between respecting the rights of the person who holds the animal by-products and the greater number of people whose animals' health is put at risk by them. For legislation made under the Animal Health Act 1981, this balance is tilted in favour of the latter. This is particularly true in the case of specific disease control legislation. For example, the recent outbreak of swine fever in East Anglia required the immediate slaughter of all the pigs on affected farms to ensure that the disease was contained. An appeals procedure would delay such action, allowing the disease to spread, and would thus undoubtedly have meant that ultimately a far larger number of pigs would have been destroyed.

9. Although there is no appeals procedure under the Animal By-Products Order 1999, it is unlikely that MAFF would ever serve a notice under the Order without the person on whom it is served being informed of the situation and given an opportunity to rectify it. In general, notices are only served after oral and written warnings have been given. It would only be if immediate action were required to remove a threat to animal and public health that such warnings would not be given. In this case, MAFF’s notice of 19^th July 2000 was only served after Mr Langdon had failed to comply with the notices served by Derbyshire County Council and the Environment Agency on 20^th April 2000. Because there is no other appeals procedure, MAFF also takes care to offer the opportunity to make representations wherever possible. The length of time allowed for such representations will depend on the level of risk imposed by the animal by-products and the time within which remedial action is considered necessary. In this case, the notice allowed 7 days in which representations should be made. However, Mr Langton did not take up this offer.”

“Paragraph (b) of sub-section 1 of Section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that sub-section does not apply to an act taking place before the coming into force of that section.”

Returning to Section 7(1)(b) it reads:

“A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by Section 6(1) may –

(b) rely on the Convention right or rights concerned in any legal proceedings

but only if he is (or would be) a victim of the unlawful act.”

The expression “legal proceedings” is defined by Section 7(6) of the Human Rights Act 1998 as including “proceedings brought by or at the instigation of a public authority”.

“The second strand concerns the facts. These are found by the Inspector and must be accepted by the Secretary of State unless he has first notified the parties and given them an opportunity to make representations in accordance with Rule 17(5) of the Town and Country Planning (Enquiries Procedure) (England) Rules 2000, SI 2000/1624. This is the point upon which, in my opinion, Bryan’s case is authority for saying that the independent position of the inspector, together with the control and fairness of the fact-finding procedure by the court in judicial review, is sufficient to satisfy the requirements of Article 6.”

“In the civil context, the whole process must be considered to see if the article has been breached . Not every stage need comply. If a global view is adopted, one may then take into account not only the eventual opportunity for appeal or review to a court of law, but also the earlier processes and in particular, the process of public enquiry at which essentially the facts can be explored in a quasi judicial procedure and a determination on factual matters achieved.”

“So far as the manner in which the decision will be taken is concerned, it is to be noticed that in each case there will be a public enquiry before an inspector. That will be an occasion for the exploration of the facts, including the need and desirability of the development. The enquiry will be regulated by rules whose broad intention is to secure fairness in the procedure. The eventual decision in the present cases is to be taken by the Secretary of State. A remedy by way of appeal or judicial review is available, and there may be opportunities for judicial review at earlier stages as indeed is demonstrated in the present appeals”.

“30. In relation to a fair hearing, which may well include the question of whether there is an effective right of appeal, there may well be difficulties with the procedures adopted in the process leading to the slaughter. These may, in an appropriate case, have to be the subject of closer judicial scrutiny than I have been able to apply in the urgent circumstances of this case. In particular, it must be a source of some concern that the 1981 Act prescribes no real procedures or mechanisms under which a decision to order the slaughter of animals takes place. For example, there appears to be little statutory guidance as to: (a) the appropriate form which notification of a potential order for slaughter should take; (b) the person to whom any representations resisting the order should be made; (c) the expertise of any person qualified to pronounce the order; or (d) the powers available to any persons authorised to carry out the order. Perhaps also of some significance, although the point was not developed in argument before me, there is no apparent need for any form of judicial warrant authorising the slaughter process. This may seem strange given the potential economic effect of the process on the persons in possession of the cattle.

31 In this case, however, it seems that the decision-maker was someone qualified to reach an informed view and one who took expert advice. The petitioners were allowed to make representations to him albeit that these were rejected after consideration. The respondents provided reasons for their decision to the petitioners. The petitioners were and are able to attempt to challenge the merits of the decision in this judicial process (see Bryan v United Kingdom (supra)). I do not therefore consider that a prima facie case has been made out here in terms of the Scots administrative law including Convention rights.”

“28. Looking at the overall tenor of the speeches in Alconbury and at the underlying decisions of the Strasbourg Court, however, I accept that the finding that the Secretary of State’s decision-making process was compatible in principle with Article 6 was based to a significant extent on the fact finding role of the inspector and its attendant procedural safeguards. By contrast, there is no equivalent in the decision-making process of a local planning authority. That process includes a right to make representations and to submit evidence, and persons may be heard orally at a meeting of the relevant committee. But there is nothing like a public inquiry, no opportunity for cross-examination and no formal procedure for evaluating the evidence and making findings of fact. The report of the planning officer to the committee generally contains an exposition of relevant facts, including any areas of factual dispute, but does not serve the same function as an inspector’s report. In general there will be no express findings of fact by the committee itself. All of this considerable reduces the scope for effective scrutiny on the planning decision on an application for judicial review. It makes it more difficult, if not impossible, to determine whether the decision has been based on a misunderstanding or ignorance of an established and relevant fact, or has been based on a view of the fact that was not reasonably open on the evidence.

29 For those reasons, there is in my view a real possibility that, in certain circumstances involving disputed issues of fact, a decision of a local planning authority which is not itself an independent and impartial tribunal might not be subject to sufficient control by the court to ensure compliance with Article 6 overall.

30 As in Alconbury, however, the issue in the present case is not whether a particular decision might be in breach of Article 6, but whether the procedures are such as to lead inevitably to a breach of Article 6. If at the end of the day there was no factual issue, or any factual issue were one in relation to which, in the particular circumstances, the court was able sufficiently to adjudicate, then there would be no relevant gap in the court’s supervisory jurisdiction and no breach of Article 6. As the court said in paragraphs 45 and 47 of its judgment in Bryan, in assessing the sufficiency of judicial review –

‘….it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.

………

In the present case, there was no dispute as to the primary facts. Nor was any challenge made at the hearing in the High Court to the factual inferences drawn by the inspector, following the abandonment by the applicant of his objection to the inspectors reasoning under Ground (b). The High Court had jurisdiction to entertain the remaining grounds of the applicants appeal, and his submissions were adequately dealt with point by point.’”

“The claimant’s pre-emptive strike on the grounds that the procedure is inherently in breach of Article 6 or will inevitably give rise to such a breach cannot succeed. Whether judicial review is adequate for the purposes can only be assessed in the light of an actual decision and by reference to the particular grounds, if any, upon which it is sought to challenge that decision.”

“53 The resolution of the question in the instant case must depend upon the adequacy of scrutiny which this court is able to undertake in the light of the issues in dispute. Limited review of the facts which this court can undertake is only acceptable if there are sufficient safeguards in place to ensure independent judgment and procedural fairness: see Lord Hoffman at paragraph 117 in Alconbury and at paragraph 128…..

59 At the heart of the cases of Bryan and Alconbury lay the distinction between the fact-finding function of an inspector and his service to the Secretary of State in furtherance of his policies. It was only in the latter respect that it could be said that the inspector lacked independence and impartiality. Once it was accepted that there was no such lack of independence in an inspector’s fact-finding function, and that prescribed procedures ensured fairness, then the limited jurisdiction of the court to review facts could be seen to be acceptable.

60 The combination of the position of the inspector, the very nature of whose profession requires an independence of approach in relation to the findings of fact, and the fairness of the prescribed procedures avoid any risk that the apparent lack of independence and impartiality might take to the decision. The same cannot be said of councillors determining a dispute of fact in respect of which the council is one of the parties”.

“88 This emerges most clearly from the decisions on the English planning cases, which I shall analyse later in some detail. But the leading European authority for the proposition that it is not necessary to have a review of the merits of a policy decision is Zumtobel v Austria (1993) 17 EHRR 116. The Zumtobel partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austrian Vorarlberg. The appropriate government committee heard their objection to confirm the order. They appealed to an administrative court, which said that the government had taken proper matters into account and that it was not entitled to substitute its decision for that of the administrative authority. They complained to the Commission and the European Court of Human Rights that, as the administrative court could not ‘independently assess the merits and the facts of the case’, it did not have ‘full jurisdiction’ within the meaning of the Albert and Le Compte formula. The European Court of Human Rights said at paragraph 32 that its jurisdiction was sufficient in the circumstances of the case: ‘Regard being had to the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency and to the nature of the complaints made by the Zumtobel partnership’ ”.

and at paragraph 117:

“If, therefore, the question is one of policy or expediency, the ‘safeguards’ are irrelevant. No one expects the inspector to be independent or impartial in applying the Secretary of State’s policy and this was the reason why the court said that he was not for all purposes an independent or impartial tribunal. In this respect his position is no different from that of the Secretary of State himself. The reason why judicial review is sufficient in both cases to satisfy Article 6 has nothing to do with the ‘safeguards’ but depends upon the Zumtobel principle of respect for the decision of an administrative authority on questions of expediency. It is only when one comes to findings of fact, or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal.”

“(i) the decision may depend on the administrative decision maker making a finding as to some present or future act – typically in enforcement proceedings (see Lord Hoffman in Alconbury at paragraphs 90, 95 and 117);

(ii) the decision may depend on the administrative decision maker making a judgment as to the progress or outcome of some future event or events: e.g. the impact of a particular development on a particular locality; or

(iii) the decision may be based by the administrative decision maker on purely planning grounds” – see paragraph 89.

“As it seems to me, this [i.e. paragraph 117 of the speech in Alconbury] is a reference by Lord Hoffman to the type of dispute which requires the making of findings of primary and immediate fact by the administrative decision maker – findings which are needed to resolve substantial issues of fact in the dispute in question, which issues have to be resolved in order to make the decision which will determine that dispute. In my view, it is that sort of dispute which typically comes within Mr Sales’ category (i). I accept that the ‘safeguards’ of the quasi-judicial process of a public inquiry before an independent inspector may well be needed in such a type of investigation, if the High Court’s power or review is to be sufficient for the purposes of Article 6. However, I do not believe that there is an absolute rule of law to that effect, although it may be difficult to think of exceptions to it. In my opinion, each case must be judged upon its own facts when deciding, in any particular case, whether the High Court’s power of review is sufficient to make the overall ‘composite process’ Article 6 compliant – i.e. to decide whether the High Court has ‘full jurisdiction’ for the purposes of Article 6.”

“(1) it is relevant whether findings of fact are material to the decision;

(2) if findings of fact are material to the decision, that will not finally determine whether judicial review provides a remedy in compliance with Article 6;

(3) if the facts have themselves been found by an ‘expert tribunal’ sufficiently independent to make it unnecessary for the court to have a broad jurisdiction to review those decisions of fact that is likely to lead to the conclusion that judicial review is sufficient”.

“The Inspector was no mere bureaucrat. He was an expert tribunal acting in a quasi judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact.”

“4. Mr Hammond [Assistant County Public Protection Officer] presented his report at some length and emphasised that the question of whether the remedial work should proceed was at the discretion of the sub-committee. Mr Bodnar [the Claimant’s solicitor] was invited to make oral representations to the sub-committee but he declined to do so. When Mr Bodnar and Mr Baker [the Claimants’ expert witness] had left the meeting the sub-committee discussed the matter further in private and was provided with written legal and Human Rights Act and financial advice and oral legal advice by Simon Hobbs who was, at that time, one of the council’s most senior solicitors.

5. Mr Hobbs made it clear to the sub-committee that we had to be satisfied that the remedial work on the land needed to be undertaken and that the nature of the proposed work was proportionate to the end to be achieved. I was aware that the question of human rights had been raised in the High Court and I recall that Mr Hobbs made reference to a textbook on the Human Rights Act and read out passages dealing with the concept of proportionality. Mr Hobbs explained the concept and made particular reference to the case of Soering v. United Kingdom in which the European Court of Human Rights had said that “inherent in the whole of the Convention is a search for the fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals’ human rights”.

6. I recall that Members and Officers discussed alternative forms of remedial work including the alternative of the land being fenced off and left fallow for a period of time; the sub-committee was satisfied, particularly in the light of the advice from MAFF which was set out in the report, that there were no realistic alternative options.

7. The sub-committee also discussed with officers the note, which had been produced by Mr Bodnar. The note questioned the feasibility of the proposed remedial work. We were advised that the contractor was satisfied that the work could go ahead in spite of the wet conditions on the land and that the contractor would be informed of all of the points raised in the note before commencing work. …

8. In these circumstances and in view of the continuing significant risk to animal health, the sub-committee considered that the proposed form of remedial work was necessary and proportionate.

9. The sub-committee meeting lasted for almost one hour and I consider, as chair of the sub-committee, that we dealt with the matter in a fair, detailed and conscientious manner.”

“In summary, there are many confounding factors that make it impossible to clearly identify a serious risk due to the incorporation of the maggot waste alone. The field could be considered as providing no more risk than others where animal wastes, not covered by the Animal By-Products Order 1999, are spread onto land or are being continually grazed by livestock with the potential to shed microbial pathogens in their faeces.”

“It appears to me that the requirement that a court or tribunal should have ‘full jurisdiction’ cannot be mechanically applied with the result that, in all circumstances and whatever the subject matter of the dispute, the court or tribunal must have full power to substitute its own findings of fact, and its own inferences from those facts, for that of the administrative authority concerned. Whether the power of judicial review is sufficiently wide to satisfy the requirements of Article 6 must in my view depend on a number of considerations, including the subject matter of the dispute, the nature of the decision of the administrative authorities which is in question, the procedure, if any, which exists for review of the decision by a person or body acting independently of the authority concerned and the scope of that power of review.”

“It is also of significance that as a matter of generality the State parties to the Convention treat a limited review as an appropriate remedy in administrative matters. … The Commission [in Kaplan] noted that the limit to control the lawfulness of the decision was fairly typical of many of the contracting States, and indeed the scope of protection afforded under Article 173 of the Treaty of Rome was similarly limited. The Commission observed (at paragraph 161 in Kaplan):

‘An interpretation of Article 6(1) under which it was held to provide a right to a full appeal on the merits of every administrative decision affecting private rights would therefore lead to a result which was inconsistent with the existing, and long standing, legal position in most of the Contracting States’.”

It is common ground between the parties, and well settled in Convention case law, that Article 1 of the First Protocol comprises three distinct parts namely

(a) the principle of the peaceful enjoyment of property;

(b) the principle that the deprivation of property must be in the public interest and subject to the conditions provided for by law and subject to the general principles of international law; and

(c) the principle that States are entitled to control the use of property in accordance with the general interest and to secure the payment of taxes or other contributions or penalties.

“(a) the Second Claimant’s right to the peaceful enjoyment of his land;

(b) the Second Claimant’s right to exclude the world;

(c) the Second Claimant’s right as a farmer to put his land to economic use as agricultural land and profit from it.”

At paragraph 55 he continues:

“Furthermore, the effect of the works carried out as a result of the notice has been to render the Second Claimant’s reversionary interest without value or viable use for agricultural or other purposes. The disturbance of the soil profile and destruction of natural and artificial drainage systems has created a statutory nuisance and a nuisance at common law, especially in respect of the land at Bardon Farm. The effect of the notice has been to deprive the Claimant of the use of his property and therefore constitutes an expropriation of his property. Alternatively, the use of his property has been interfered with and curtailed.”

“This case is concerned with the third rule. This is important because whereas compensation is generally required before the State may justifiably deprive a citizen of his property, there is no such general requirement where the State controls the use of a citizen’s property. However, the interference must still be justified as being necessary in the general (i.e. public) interest and must be proportionate. The Second Defendant submits that service of the notice and its subsequent enforcement were necessary and proportionate in the public interest to prevent risk to public and animal health.”

In relation to the actions of the First and Second Defendants, it is noteworthy that the only consideration which appears to have played a part in their considerations is risk to animal health. While it is accepted that this is a relevant consideration, it is not the sole consideration. In specifying burial by parallel trenching to a depth of four feet, it was clearly relevant to consider what the effect on the land would be of the proposed works. This would seem to have been omitted from the Defendants' considerations. However, given the invasion of the Second Claimant's rights and interests, it should have been taken into account as a matter affecting proportionality. Other matters which also appear to have been left out of account are whether the proposed works would achieve the desired aim (which, it is assumed, was the elimination of all risk to animal health), whether those works were the minimum necessary to achieve that aim and whether the burden which would be imposed on the Second Claimant was necessarily onerous. As the works have created significant environmental nuisances, have sterilised the land and rendered it valueless, the Second Claimant submits that the effect of the Defendants' actions has been grossly disproportionate and economically punitive to an unjustifiable extent.

It is unnecessary to repeat the facts or to set out the submissions made on these topics on behalf of the Second Claimant or by the Defendants. In my judgment it is clear that the First and Second Defendants were entitled to conclude, on the information available to them, that the option of allowing the land to be fenced off and left fallow for a period of time was an unacceptable option in terms of animal health and indeed in terms of general environmental impact considering that there was a public footpath crossing one of the fields. I also accept that when taking action under Article 5(2) of the 1999 Order the First Defendant was entitled to take a precautionary approach. As noted by Mr McManus in paragraph 35 of his Skeleton Argument “if MAFF had not issued the notice, the Claimants would have been under a duty to comply with the 1999 Order, which would have required them to dispose of the waste in one or other of the ways suggested prescribed by Article 5(1). The Claimants have not suggested (because they cannot) that there is any other way within Article 5(1) which would have been available to them and which would have been less onerous than the means of disposal prescribed by the Notice.”

In paragraph 27(3) and paragraph 28 the Second Claimant seeks to rely on Article 3(2) of Council Directive 90/667/EEC claiming that the Defendants acted in breach of that Directive because the land on which burial of the waste material was required was “not suitable so as to prevent contamination of water tables or any environmental nuisance”. Having reconsidered the documents, which were before the decision-making bodies, it seems to me that this was not an issue and was not raised by the Second Claimant.

For all these reasons I conclude that even if the Second Claimant can raise Human Rights Act arguments against the First Defendant, I dismiss the Second Claimant’s claim for a judicial review of the First Defendant’s notice dated the 19^th July 2000 and the Second Defendant’s decision made on or about the 21^st August 2000 to enter the land at Loscoe and Bardon Farm to carry out the works identified in that notice. For the avoidance of doubt, I reject or dismiss the application for judicial review insofar as it is directed at the Second Defendant’s decision dated the 11^th December 2000 and/or the actual implementation of that decision which took place in January and February/March 2001.

THE DEPUTY JUDGE: For the reasons set out in the judgment handed down, this application for judicial review is dismissed.PRIVATE 

MR MCMANUS QC: My Lord, in the light of your Lordship's judgment I would ask for the costs of these proceedings. My Lord, this is an application for a detailed assessment of the costs in view of the length of proceedings.

My Lord, there is one additional matter that I should draw to my Lord's attention. As my Lord will recollect there were interlocutory proceedings in front of Elias J and those proceedings, as my Lord will recollect, resulted in the application for the interlocutory injunction being dismissed and an order for costs in favour of, inter alia, DEFRA. I am told this morning that the order for costs was for a summary assessment of costs, if they were not agreed.

My Lord, the costs have been submitted to the previous and current solicitors representing the applicant. I am told they have not been agreed. My Lord, I do not ask my Lord to summarily assess them today. I simply ask that any order for costs includes a detailed assessment of those costs as well and to that extent the order of Elias J is varied. My Lord, those are the applications I make today from your Lordship's judgment.

THE DEPUTY JUDGE: Thank you.

MR COLE: My Lord, I make similar application in respect of the second defendant's costs of the main action. I also make the same application in respect of the order of Elias J in February of this year, that that order being costs summarily assessed by Elias J on the papers, if not agreed. That has in fact not occurred. There has been no agreement. A letter was sent to the court requesting consideration of the matter and I understand that the claimant's solicitors wrote to the court inviting the matter to be put off until this hearing.

THE DEPUTY JUDGE: Do I have a copy of the order of Elias J in the core bundle or in the main bundles?

MISS CARRINGTON: Page 142, my Lord.

THE DEPUTY JUDGE: Yes, thank you very much.

MR COLE: The only other matter which I would raise is in respect of the costs of the second application for permission referred to as JR2 in the second defendant's skeleton argument. Those proceedings were discontinued by notice the day before the trial of this matter. Although the matter never reached the permission stage, clearly the second defendant's solicitors and counsel had to address their minds to them in view of the very late discontinuance of the matter. The second defendant would be entitled automatically for an order for costs on discontinuance, however, I would ask that in relation to those costs that they be assessed on an indemnity basis, rather than the standard basis on the ground of the very late discontinuance the day before the trial of the matter.

My Lord, in relation to the costs of the main action, I would submit that it is appropriate that the second defendant receives its costs. Clearly, there were two decisions being appealed against and, therefore, it was quite appropriate, in my submission, for the first and second defendants to be separately represented.

THE DEPUTY JUDGE: Yes, thank you, Mr Cole. Miss Carrington?

MISS CARRINGTON: My Lord, in relation to the issue of costs in principle, of course, I cannot oppose my learned friend Mr McManus' application. In relation to the applications of the Council, the second defendant, they are, of course, second respondent and, therefore, my Lord has to consider to what extent their presence here was necessary in order to contest a separate issue. Whilst we accept that there was a degree of separation of the issues, in the sense that there were two decisions appealed against, they were part and parcel of the same matter which was the enforcement pursuant to the notice of 19th July and, therefore, I simply raise the Bolton issues for my Lord to consider.

I have no objection whatsoever to the application for a variation of the order of Elias J to make the order of the 20th February an order for a detailed assessment of the costs.

In relation to my learned friend's application for indemnity costs in relation to what he calls JR2, which was discontinued at a late stage, we accept, he does not cite any authority in relation to his proposition that he is entitled to his costs on an indemnity basis. My Lord may recall that JR2 related to the decision at various stages of the proceedings to go on to the land and carry out the work. It was very much subsumed both in the application of 20th February on which Elias J made no order and, indeed, by the time we had come to argue the matter before my Lord in September, of course it was utterly irrelevant since there was entry on the land to carry out the works in any event and that was something which influenced my clients' decision to withdraw the application in respect of judicial review number 2. And, therefore, I would oppose the unusual application that those costs be on an indemnity basis, although I would accept that having discontinued we are liable for those costs.

THE DEPUTY JUDGE: Where did the additional, fairly late, expert material come in? Did that relate to, let us call it, JR1 and JR2, or just JR1? I was not quite clear.

MISS CARRINGTON: My Lord, it really related just to JR1 and then it incorporated in the passage of events after the work had been carried out on, if I can say colloquially, a 'I told you so' basis.

THE DEPUTY JUDGE: So it was part of the proposed amendments as well to the JR1.

MISS CARRINGTON: To JR1, that is correct.

THE DEPUTY JUDGE: Thank you. Is there anything else you wanted to say on costs?

MISS CARRINGTON: I do have an application for permission.

THE DEPUTY JUDGE: Could we leave that until we have resolved the costs position?

MISS CARRINGTON: My Lord, of course.

THE DEPUTY JUDGE: Mr Cole, you are a second defendant. The House of Lords in Bolton has said a few things about whether or not there should be two sets of costs. Why should you have your costs as well as the first defendant?

MR COLE: My Lord, the primary ground being that in respect of the applications, these were two entirely separate decisions and as appears clear from your Lordship's judgment, merited separate consideration, those of DEFRA being made prior to 2nd October. That submission, on behalf of DEFRA, to assert that the Human Rights Act did not apply left Derbyshire County Council firmly in the frame, if I can put it that way, and therefore, in those circumstances, I would submit it is entirely appropriate, and indeed absolutely necessary, for Derbyshire County Council to be separately represented. It was essentially a conflict between DEFRA and Derbyshire in that DEFRA's stance was turning your Lordship's attention to the later decision to enforce, and as your Lord claimed in the judgment, it is accepted that Derbyshire has to exercise separate discretion as to whether to enforce the decision and that was a matter which only Derbyshire could address argument to this court over.

THE DEPUTY JUDGE: What I would want to avoid is the prospect of the claimant paying twice for the same response and I am not sure what powers the costs judge has to ensure that there is not double recovery, not double recovery, it would be separate recovery but double payment. If there is a mechanism that the costs judge can exercise then I would hope that that could be exercised. But I am not aware of any particular rule which would allow him to do that.

MR COLE: No, I cannot assist with any particular rule. Your Lordship could express certain comments which could be passed on to the costs judge. However, I would submit that in looking at the question of whether the claimant is paying twice for the same work, essentially much of the case and, indeed, your Lordship's judgment, has resolved around the second defendants' actions and, therefore, I would submit that it would be inappropriate if, following the general rule, the costs order was made solely in respect of the first respondent simply on the ground that they happened to be named first in the original application.