Derbyshire Waste Ltd. v Blewett

Article 8(b) of the Landfill Directive was effective in domestic law through the existing waste-planning regime. It did not, however, make compliance with the Best Practicable Environmental Option (BPEO) a condition precedent to planning permission for landfill.

A waste planning authority must give the BPEO hierarchy particular and important weight. It must undertake such BPEO analysis as is practicable on an individual application, even where it has failed to prepare a local waste-management plan. The authority may nevertheless balance other material planning considerations, which may outweigh the objectives in the relevant waste-management plan.

A planning permission remains unlawful where the authority’s consideration of BPEO is seriously flawed. The court should not refuse relief by speculating that the same decision would have followed from a lawful assessment.

Derbyshire Waste obtained planning permission from Derbyshire County Council to fill and restore a former colliery void by landfill. Mr Blewett, a nearby resident, obtained judicial review before Sullivan J, who quashed the permission.

Sullivan J held that Article 8(b) of the Landfill Directive required the Council to satisfy itself that the proposal was in line with Waste Strategy 2000, including its BPEO methodology. He also held that the Council’s consideration of BPEO was seriously flawed in any event.

Derbyshire Waste appealed. The Secretary of State intervened. The central questions were whether Article 8(b) formed part of domestic law, whether it made BPEO compliance a precondition to landfill planning permission, and whether the Council’s BPEO analysis and the grant of relief were lawful.

1. Appeal dismissed. Sullivan J was wrong to treat compliance with BPEO policies as a precondition to planning permission for landfill. He was nevertheless entitled to quash the permission because the Council’s BPEO assessment was seriously flawed.

2. Article 8(b) of the Landfill Directive formed part of domestic law through the pre-existing implementation of Article 7 of the Waste Framework Directive, principally by the Waste Management Licensing Regulations 1994. In any event, the domestic regime should be construed with the supplementary landfill regime as part of the same mechanism for attaining the waste-management objectives.

3. Article 8(b) did not prohibit the grant of planning permission unless the project complied with every BPEO policy in Waste Strategy 2000. Its requirement that a landfill project be in line with the relevant plan was materially different from Article 8(a), which expressly prohibited the grant of a landfill permit absent compliance with the Directive. BPEO objectives were important considerations requiring particular attention and weight, but they did not override every other material planning consideration under the Town and Country Planning Act 1990.

4. The absence of a local waste-management plan did not excuse the Council from considering BPEO. A waste planning authority could not rely on its own failure to prepare such a plan. It had to undertake such BPEO analysis as was practicable and identifiable on the individual application.

5. The Court would not disturb Sullivan J’s conclusion that the Council’s reports inadequately addressed BPEO. That evaluative finding was not perverse. The reports did not sufficiently analyse the waste hierarchy, proximity and self-sufficiency in the circumstances of available landfill capacity and the claimed need for the site.

6. The Court also declined to withhold relief. It could not determine the planning merits or safely conclude that the Council would have reached the same result after a lawful BPEO assessment. The permission therefore remained quashed.

• Court of Appeal (Civil Division): Appeal dismissed; Sullivan J’s order quashing the planning permission remained in force: [2004] EWCA Civ 1508 .
• Administrative Court: Sullivan J allowed Mr Blewett’s judicial-review claim on 7 November 2003 and quashed the Council’s planning permission.