R (Thornby Farms Ltd) v Daventry District Council (R (Murray) v Derbyshire County Council)

Article 4 of the Waste Framework Directive imposes a binding environmental objective. It is more than a material consideration, but it does not automatically require refusal of permission or selection of the least harmful option. Decision-makers retain a closely supervised discretion as to the necessary measures and their timing. A breach requires more than an outcome which makes little progress towards the objective, unless there is a plain and flagrant disregard. For BATNEEC purposes, guidance emission limits are not automatically the best available technique. Authorities must consider whether the plant can operate more effectively, using monitoring evidence and appropriate advice. Margins cannot be assumed without evidence. Relief remains discretionary, and a statutory review may make quashing unnecessary.

These conjoined appeals concerned two waste-disposal decisions. Thornby Farms Ltd sought to quash Daventry District Council’s authorisation under Part I of the Environmental Protection Act 1990 for the incineration of animal carcasses. David Murray sought to quash Derbyshire County Council’s planning permission for an extension to a landfill and mineral-recovery site.

Thornby’s application had been dismissed by Collins J on 6 September 2000. Murray’s application had been dismissed by Maurice Kay J on 6 October 2000. Both appeals raised the common question whether the authorities had failed to comply with Article 4 of the Waste Framework Directive and the relevant objectives in Schedule 4 to the Waste Management Licensing Regulations 1994.

Pill LJ delivered the leading judgment. Robert Walker LJ agreed, and Laddie J agreed with the outcome and the construction of the relevant legislation. Both appeals were dismissed.

1. Article 4 and the relevant objectives. Article 4 imposed a binding objective, and paragraph 2(1) of Schedule 4 required functions to be discharged with the relevant objectives. The objectives were more than ordinary material considerations: they were ends at which the decision-maker had to aim. They were not, however, overriding considerations requiring the least harmful option in every case. The decision-maker could take account of competing considerations, unless the result involved a plain and flagrant disregard of the objective. This was consistent with Ministere Public v Traen (Joined Cases 372 to 374/85), Commission v Italian Republic (ECR 1991 I-7773) and Commission v Hellenic Republic (Case C-387/97).
2. Scope of the Waste Framework Directive. The exclusion in Article 2 for matters already covered by other legislation required legislation specifically directed to the relevant operation. The Animal Waste Directive did not cover the disposal of pets, and the general Air Framework Pollution Directive did not specifically cover animal carcasses. The carcasses therefore remained within the relevant waste regime.
3. Thornby. Daventry was entitled, on the evidence, to assume that release of prescribed substances could not be prevented. It nevertheless had to address whether BATNEEC required lower emissions. The limits in PG5/3 were upper limits and did not establish BATNEEC automatically. The authority should have considered the monitoring results, obtained appropriate advice and investigated whether lower limits were realistic. The obligation concerned the effective use of the plant as well as the machinery itself. No specific proof of environmental damage was required. The process should also have been properly documented when the decision was made; reliance on a post-decision explanation was unsatisfactory.
4. Relief in Thornby. Although Daventry had failed to make the necessary enquiries, the authorisation was not quashed. The statutory review required by section 6(6) of the Environmental Protection Act 1990, together with the continuing duty to follow technological developments, made a less drastic course appropriate.
5. Murray. Derbyshire had considered the Article 4 objectives and other planning considerations. The absence of immediate need and the landfill’s limited contribution to the objective did not make permission unlawful. The authority was not required to refuse permission merely because landfill was a disposal method of last resort or because the proposal made no positive contribution to the objective.

The respondents received their costs in Murray. In Thornby, the respondents received one half of their appeal costs. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeals dismissed in [2002] EWCA Civ 31. Costs orders were made, and permission to appeal to the House of Lords was refused.
• Queen’s Bench Division: Collins J dismissed Thornby’s application on 6 September 2000.
• Administrative Court: Maurice Kay J dismissed Murray’s application on 6 October 2000.