Feakins, R (On the Application Of) v Secretary of State for Environment, Food And Rural Affairs

A directly applicable EU regulation does not require domestic implementing legislation unless its language makes national measures necessary. Point 10 of Annex XI to the TSE Regulation (999/2001/EC) therefore permitted the competent authority to authorise derogation from the ordinary disposal requirements without a prior legislative step.

For this derogation, a processing plant lacks incinerating capacity if it cannot incinerate the material within a reasonable time. Available storage does not itself establish capacity. The requirement that the disposal method preclude all risk of TSE transmission does not demand elimination of every conceivable risk. A properly supported conclusion that licensed landfill would reduce an already small risk to a negligible level was sufficient.

Following the 2001 foot and mouth disease epidemic, about 13,500 tonnes of ash and incompletely burnt animal remains were left on or beneath the claimant’s farm. The material was specified risk material because it included remains from thousands of slaughtered animals. The Secretary of State proposed to remove the unburied residue directly to licensed landfill. The claimant sought judicial review, contending that EU legislation required incineration.

Goldring J rejected the substantive challenge but questioned the claimant’s asserted public-interest motivation. The claimant appealed. The Secretary of State cross-appealed on the ground that the claimant lacked standing.

The Court of Appeal considered whether point 10 of Annex XI to the TSE Regulation (999/2001/EC) required domestic implementing legislation and whether the lack-of-capacity and TSE-risk conditions for derogation had been satisfied. It also determined whether the claimant had sufficient standing.

1. Appeal and cross-appeal dismissed unanimously. Dyson LJ delivered the judgment, with which Jonathan Parker and Thorpe LJJ agreed.

2. The claimant had standing. Where a claimant lacks a sufficient private interest, the objective public importance of an issue does not by itself confer standing. Motive may be material. A challenge brought from ill-will or for another improper purpose may be an abuse of process. On the evidence, however, the Secretary of State had not shown that the claimant commenced the application principally to extract compensation rather than from a genuine concern about legality. His later settlement proposal did not establish an improper original purpose.

3. Point 10 of Annex XI to the TSE Regulation (999/2001/EC) did not prescribe any particular mechanism by which a member state had to exercise the option to derogate from points 8 and 9. Domestic legislation was therefore unnecessary. The differences between the language of point 10 and article 3(2) of the Animal Waste Directive (90/667/EEC) reflected different drafting techniques. Neither the word “derogation” nor the reference to member states implied a requirement for a formal legislative measure. Requiring legislation which could merely repeat article 3(2) would serve no useful purpose.

4. The lack-of-capacity condition was satisfied. “Capacity” meant incinerating capacity, rather than the ability to store material pending later incineration. A plant unable to incinerate the material for two years presently lacked capacity. Where incineration could occur within a reasonable time and interim storage was available, capacity might exist. This was a matter of fact and degree, and the court should interfere with the competent authority’s conclusion only if it was plainly wrong. The quoted disposal periods of between one and five years supported the finding of insufficient capacity.

5. The risk condition was also satisfied. The words requiring a method which precluded all risk of TSE transmission did not impose an absolute requirement to eliminate every conceivable risk. The uncontradicted expert evidence showed that burning had greatly reduced any infectivity and that disposal in approved, licensed landfill would reduce the residual risk to a negligible level. The judge was entitled to conclude that the proposed method met the condition.

1. Court of Appeal (Civil Division): The claimant’s appeal against the rejection of his challenge to disposal by landfill was dismissed. The Secretary of State’s cross-appeal on standing was also dismissed: [2003] EWCA Civ 1546.
2. Administrative Court: Goldring J considered the substantive challenge on its merits and held that the proposed disposal was lawful. Although he doubted the claimant’s asserted public-interest motivation and rejected the alleged private interest based on exposure to liability, he proceeded to decide the legal issues.
3. Administrative Court, permission stage: Stanley Burnton J granted permission concerning the buried residue after the Secretary of State undertook to remove, so far as practicable, the unburied ash and carcass remains.