Thornby Farms Ltd v Daventry District Council & Anor

The objectives in Article 4 of the Waste Framework Directive and regulation 4 of the 1994 Regulations are binding as to the result to be achieved but permit a margin of discretion as to the measures and timing for achieving them.

Enforcing authorities must ensure that authorisations require the use of the best available techniques not entailing excessive cost (BATNEEC) so as to reduce emissions to a minimum. That requires reasonable enquiry and a contemporaneous, documented decision as to appropriate emission limits.

Objectives in the Directive are more than ordinary material considerations but they are not absolute or automatically overriding of other considerations in planning decisions.

These consolidated appeals arise from two judicial-review challenges to environmental decisions. In Thornby Farms Ltd v Daventry the local authority authorised an animal‑carcass incineration process. Neighbouring landowners challenged the authorisation on the ground that the authority failed to give effect to Article 4 of Council Directive 75/442/EEC (the Waste Framework Directive) and to require use of BATNEEC when fixing emissions limits.

In Murray v Derbyshire the challenge was to planning permission which extended landfill capacity. The central common question was whether the relevant authorities had given proper effect to Article 4 and the corresponding provisions of the Waste Management Licensing Regulations 1994 when taking their respective decisions.

The Court was asked to state the legal effect of the Directive and the duties it places on national authorities in authorising waste‑disposal processes and in granting planning permission.

1. Disposition: The appeals are dismissed. The Court (Pill LJ, Robert Walker LJ and Laddie J) unanimously dismissed both challenges.
2. Binding objective with margin: Article 4 of the Waste Framework Directive and paragraph 4 of Schedule 4 to the 1994 Regulations impose a binding objective rather than a detailed rule. Member States and competent authorities retain a margin of discretion in assessing the need for and timing of measures to achieve that objective. The ECJ authorities (including Commission v Italy and Commission v Hellenic Republic) show that the objective is binding but that a failure to take necessary measures may be inferred only where persistent or significant deterioration occurs without action.
3. Objectives vs material considerations: The Directive objectives are more than ordinary "material considerations". They are ends at which decision‑makers must aim and must be kept in mind. That said, they are not absolute. A planning authority may lawfully grant permission even where the decision does little to further the objective, provided the objective was considered and the decision does not display a plain and flagrant disregard for it.
4. BATNEEC duty in authorisations: Under section 7(2) of the Environmental Protection Act 1990 and the 1994 Regulations an enforcing authority must ensure that the best available techniques not entailing excessive cost are used so as to reduce release of prescribed substances to a minimum. This duty may require specific enquiries and a reasoned, contemporaneous decision about appropriate emission limits. Reliance on government guidance is permissible but does not relieve the authority of the obligation to consider whether guidance limits reflect BATNEEC at the particular site.
5. Application to Thornby: Daventry acted conscientiously and took technical advice. However, having received monitoring evidence showing lower emissions, the authority should have pursued further enquiries and given contemporaneous reasons for adopting the authorised limits. The guidance note limits are not inevitably identical with BATNEEC. Despite these shortcomings, the court declined to quash the authorisation or to make a formal declaration. The availability of a statutory review of conditions and the absence of evidence that imposing the lower monitored limits would necessarily entail excessive cost weighed against granting drastic relief.
6. Application to Murray: Derbyshire had the Article 4 objective in mind and the Director's report addressed the relevant matters. The limited extension of landfill was not so contrary to the objective as to be unlawful. The authority's discretion permitted the grant of permission on the facts.
7. Practical guidance: Authorities making authorisations or planning decisions affecting waste disposal should:
1. treat the Directive objectives as binding aims to be kept in mind;
2. make and record reasonable enquiries about BATNEEC, including site‑specific evidence where available;
3. not assume that published guidance emission limits automatically equal BATNEEC;
4. use statutory review powers where appropriate rather than immediate quashing when further investigation is warranted.

• Queen's Bench Division (Crown Office List): Collins J dismissed the challenge to Daventry's authorisation (judgment 6 September 2000) — challenged in Thornby.
• Administrative Court: Maurice Kay J dismissed the challenge to Derbyshire's planning permission (judgment 6 October 2000) — challenged in Murray.
• This Court of Appeal (Pill LJ, Robert Walker LJ and Laddie J) heard consolidated appeals and dismissed both on 22 January 2002.