Herefordshire Waste Watchers Lt. v Herefordshire Council & Anor

Under the Waste Management Licensing Regulations 1994, a planning authority must keep the relevant health and environmental objectives in mind when determining an application. The objectives need not be decisive, and the law does not impose a hierarchy of material considerations. Appropriate threshold standards may be used as a means of pursuing those objectives. A report showing that pollutant levels fall well below accepted concern thresholds may support a finding that the proposal is acceptable, provided the decision-maker has considered the broader objective. On judicial review, the applicant must show an arguable evidential basis that the authority failed to keep the objective in mind.

Herefordshire Waste Watchers challenged planning permission granted by Herefordshire Council for a waste treatment and recycling facility. The permission followed a detailed officer’s report and was subject to numerous conditions. The renewed judicial-review application followed refusals by Goudie QC sitting as a High Court judge, Simon J in the High Court, and Dyson LJ on the papers in the Court of Appeal. The central issue was whether the authority had unlawfully treated compliance with threshold standards as a substitute for considering the objectives in Schedule 4 to the Waste Management Licensing Regulations 1994.

1. Application refused. The applicant did not raise a realistically arguable case that the planning authority had failed to keep the relevant statutory objective in mind.
2. Schedule 4, paragraph 4(1) of the Waste Management Licensing Regulations 1994 identifies objectives directed to recovering or disposing of waste without endangering human health or harming the environment. The planning authority had to keep those objectives in mind while considering other material considerations.
3. Applying Thornby Farms Ltd v Daventry District Council [2002] EWCA Civ 31, the court confirmed that the objective need not be the decisive consideration. The law does not require a hierarchy assigning different legal weights to material considerations.
4. The authority was entitled to use appropriate available thresholds and standards as guidance towards achieving the statutory objective. The officer’s report did more than record bare compliance. It considered the degree by which anticipated pollutant increases fell below the Environment Agency’s concern thresholds and used that assessment to conclude that the impact on air quality was acceptable.
5. The burden lay on the applicant to show that the committee had failed to keep the objective in mind. In circumstances where the whole debate concerned potential harm to human health and the environment, and the committee relied on the officer’s advice about appropriate standards, there was no evidence of such a failure.

The renewed application for judicial review was refused.

• Court of Appeal (Civil Division) — renewed application for judicial review refused: [2008] EWCA Civ 587.
• High Court, Queen’s Bench Division — Simon J refused the judicial-review application.
• Earlier procedural decisions — Goudie QC, sitting as a High Court judge, refused the application on the papers; Dyson LJ refused it on the papers in the Court of Appeal.