Planning application for waste disposal

New landfill sites or extensions to existing sites generally require planning permission as well as a waste management licence under Part II of the Environment Protection Act 1990. The relationship between the functions of planning authorities and the Environment Agency when making their respective decisions has long been a problematic area of law. The High Court has now clarified the role of planning authorities in the light of contemporary law and policy guidance, and the result will give some comfort to local authorities that, despite changes to the legal framework, they still retain considerable discretion in how to handle applications.

R v Derbyshire County Council ex parte Murray (High Court, Queens Bench Division, 6 October 2000) concerned a planning application by the operator of a landfill site near Staveley for an extension of the use and duration of the site by further extraction of clay and coal and the provision of a new waste cell. The application was granted by Derbyshire County Council last March, but the decision was challenged by way of judicial review by local residents on several separate though related grounds.

The first ground of challenge concerned the extent to which the local authority had considered and assessed the "best practicable environmental option" (BPEO) in relation to the site.

New Planning Policy Guidance was issued in October 1999 concerning land use planning and waste (ENDS Report 296, p 40 ), replacing those parts of the 1994 PPG23 on planning and pollution control which related specifically to waste.

PPG23 expressly endorsed the BPEO concept and adopted the definition of the Royal Commission on Environmental Pollution in its twelfth report over ten years ago: "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 costs, in the long term as well as the short term."

The new PPG10 also endorses the concept, and says that consideration of the BPEO for each waste stream is one of the key principles on which the Government wished waste management decisions to be based. Again the Royal Commission definition was adopted.

But it was an annex to a PPG on planning considerations and planning conditions which gave rise to the main cause of legal contention in the Murray case. Paragraph A52 stated that "All locations must be considered in terms of the Best Practicable Environmental Option." This is a more specific and stronger statement than in the original PP23, but there is little explanation as to the extent to which a real distinction is being made concerning the need for a locational BPEO, and what this entails.

The report of the County's Director of Environmental Services to the relevant planning sub-committee made reference to the BPEO concept, though it acknowledged that to be able to assess BPEO on a site-specific basis would require the existence of alternatives and further evolution in the guidance to enable it to be a more decisive tool in reaching planning decisions. The report expressly stated that "under present knowledge it is difficult to assess BPEO."

Nevertheless, the report considered that the particular proposal was safe, and since it included energy recovery from landfill gas in the local brickworks it did not fall at the bottom of the waste hierarchy. Given other benefits, including the removal of dereliction and appropriate reclamation, it concluded that overall "the proposal is an acceptable waste management option in terms of BPEO."

The applicants for judicial review argued that the planning authority's decision was legally flawed because there was no clear reference to paragraph A52, and the authority had not considered the specific site in terms of BPEO, and even admitted that it was difficult to do so.

The authority countered that although the new PPG was worded rather differently, it did not imply a wholly new approach, and that the BPEO principles that existed before continued.

In the 1998 Kirkham case (ENDS Report 276, pp 52-54 ), Mr Justice Carnwath expressly considered the BPEO provisions in PPG23 and held that BPEO was a material consideration for planning authorities but that the weight to be given to it in particular case was a matter for the authority. It did not mean that a full BPEO assessment had to carried out in each and every case.

The Court of Appeal confirmed this part of the judgement (ENDS Report 280, pp 51-52 ), with Lord Justice Schiemann noting that the absence of detailed figures and costings was not fatal: "It does not seem to me arguable that in every case particular figures must be produced. The authority is entitled to take a view as to what is the best practicable option even in the absence of figures."

In an unreported decision of the High Court earlier this year, R v Leicester Council Council ex parte Blackfordby and Boothorpe Action Group, Mr Justice Richards had considered the new version in PPG10, although at the time of the decision being challenged it was still in draft form. The court followed the line in the Kirkham decision and held that the draft guidance did not require a detailed BPEO exercise in each case.

The Murray case is significant because it appears to be the first decision concerned with PPG10 in its final form. Mr Justice Maurice Kay appeared to accept that the approach in the previous cases was still essentially applicable. He agreed with counsel for the local authority that it was not necessary for there to be any express reference to the A52 requirement; what was important was what the authority did in fact consider the BPEO.

He went on to accept the local authority's analysis that the documentation did in fact indicate a site-specific approach despite the difficulties referred to, and concluded that "the advice contained in the report of the Director was adequate and sufficient on the BPEO issue."

Although the judgement does not contain an elaborate legal analysis, it seems clear that the judge held that the BPEO assessment must be site-specific but that the detail of the assessment was generally a matter for the authority.

The second main ground of challenge related to the status of Article 4 of the 1991 EC waste framework Directive. This requires Member States to take necessary measures to ensure inter alia that waste is disposed of without endangering human health and "without risk to water, air, soil and plants and animals." These provisions were transposed in Schedule 4 of the 1994 waste management licencing regulations, which repeated the terms of Article 4 word for word and described them as "relevant objectives".

In both the Kirkham and Blackfordby cases, the courts held that the objectives were not absolute requirements in the sense of requiring the planning authority to achieve them in each and every case. According to the report of Derbyshire's Director of Environmental Services, "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."

According to Mr Justice Richards in the Blackfordby decision, the Article 4 requirements should be considered as objectives - as ends at which to aim - and must be taken into account in decision-making. But their status as objectives does not cease because other considerations have also to be taken into account by the decision-maker and might militate against their achievement.

Mr Justice Maurice Kay agreed with this approach "as good sense and good law." However, he was asked to deal with a point that had been expressly left open in the Blackfordy case. The objectors argued that while the objectives may be treated as material considerations, their origin in the EC Directive meant that they had to be given special status.

Generally, a local authority is free to give little or no weight to potential material considerations, but here the objectors argued that the Article 4 objectives had at least to be given substantial weight. The authority had already agreed that the proposed extension did not meet a specific local need for the landfill since other facilities already existed, and the objectors argued that given the absence of such need, planning permission would have to be refused if the Article 4 objectives were given substantial weight.

The judge agreed that "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." However, he felt unable to create "a special category of consideration attracting substantial weight as a matter of law" since this would represent a radical departure from first principles in this area of law. The council had to have regard to the objectives, but whatever weight it gave to them was not susceptible to legal challenge.

Mr Justice Maurice Kay's reluctance to develop new principles is understandable, but may be over-cautious, and remains the most vulnerable element of the judgement.

It is true that in 1994 the European Court of Justice held that the wording of Article 4 was insufficiently precise and unconditional to be invoked directly by individuals before national courts under the "direct effect" doctrine. But, according to the Court, the Article 4 objectives "set out the objectives which Member States must

observe" in carrying out waste management functions. The "substantial weight" argument does seem to be more in line with the spirit of the Community obligations, but it seems unlikely that without a clear ruling by the ECJ or possibly the House of Lords the lower courts will give them special interpretation.

The objectors' third ground was that the council had failed to apply the precautionary principle. Given the admitted

absence of pressing need for the site, the application of the principle would, they argued, have led to refusal of planning permission.

The court quickly dismissed this line of argument. The precautionary principle as stated in the EC Treaty had no direct effect, and the waste framework Directive and its transposition into UK law represented its application in this area. As such it could add nothing to the case.

Finally, the court made an important ruling concerning the application of the important House of Lords judgement in the Berkeley case earlier this year (ENDS Report 307, pp 46-47 ).

In that case the Lords, overruling the Court of Appeal, held that where an authority failed to consider the need for an environmental impact assessment for a planning application, the court had very little residual discretion to validate any subsequent permission on the grounds that all the relevant information could in fact be found in various documents before the authority; this did not represent compliance with EC law.

In the present case, a document purporting to be an environmental statement had been prepared. But the objectors argued that it did not comply with the requirements of the EIA Directive, and that, applying Berkeley, the planning permission should be quashed.

Mr Justice Maurice Kay correctly dismissed the blind application of Berkeley. That case concerned the complete absence of an environmental statement, and Lord Hoffman had stated that the EIA Directive did not allow Member States to treat a disparate collection of documents "traceable only by a person with a good deal of energy and persistence" as satisfying its requirements for public information and a comprehensible set of environmental information.

But in this case there was a lengthy document supplied by the developers, and the judge noted that the local authority had not required any further information, nor had the objectors challenged the adequacy of the document until shortly before the hearing.

In a warning to third parties not to hold back on objections, he noted: "It would be most unfortunate if a document described as an ES [environmental statement] 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 his view, the document supplied by the developers complied, or at least substantially complied, with the EIA regulations and therefore the decision should not be quashed.

The Murray case is important in that it is the first ruling on the status of PPG10 as a material planning consideration, and confirms that the courts are reluctant to become involved in judging detailed questions of BPEO, provided local authorities have considered the issue to some extent.

As for the Article 4 principles in the waste framework Directive, it is unlikely that politicians agreeing the Directive properly considered the potential legal significance of introducing such powerful language. The judgement illustrates the continued reluctance of the UK courts to give the principles special legal status, but it is unlikely to be the last judicial word on the subject.

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