Ardley Against Incineration v Secretary of State for Communities and Local Government

In determining a planning appeal concerning a waste facility, the Secretary of State had to exercise his functions for the purpose of implementing article 4 of the Waste Framework Directive 2006/12/EC, as applied through the Environmental Permitting (England and Wales) Regulations 2010. That obligation required the relevant environmental objectives to remain in view, but did not create an overriding hierarchy of considerations. Matters within the Environment Agency’s environmental-permit functions could be left to it, provided the planning authority addressed the remaining planning issues. The later Waste Framework Directive 2008/98/EC did not alter the applicable domestic obligation and was not directly enforceable on these facts. Compliance with applicable air-quality standards, together with the absence of evidence of harm, supported the conclusion that the proposal would not endanger human health or harm the environment.

An unincorporated association applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s decision granting Viridor Waste Management Limited conditional planning permission for an energy-from-waste facility in Oxfordshire. The challenge concerned the treatment of local air-quality and health concerns, the relationship between planning control and environmental permitting, the effect of the replacement of Directive 2006/12/EC by Directive 2008/98/EC, and whether the Secretary of State had complied with Part 2 of Schedule 25 to the Environmental Permitting (England and Wales) Regulations 2010.

1. The application was dismissed. The Secretary of State’s costs were payable by the claimant, subject to detailed assessment if not agreed and limited to £10,000.
2. The obligation under paragraph 1(1) of Part 2 of Schedule 25 to the Environmental Permitting (England and Wales) Regulations 2010 was to exercise the relevant function for the purpose of implementing article 4 of Directive 2006/12/EC. Following Thornby Farms v Daventry Council [2003] QB 503, the objectives in article 4 had to be kept in mind as obligatory objectives, but they did not form an overriding category of considerations. Other material considerations could justify a decision that made little or no progress towards those objectives, provided they were not plainly and flagrantly disregarded.
3. The change in domestic wording from exercising functions “with” the relevant objectives to exercising them “for the purposes of implementing” article 4 did not materially alter the substantive obligation. The domestic provisions had to be construed, where possible, to achieve the result required by the Directive.
4. The Inspector and Secretary of State had left some detailed pollution-control matters to the Environment Agency, consistently with paragraph 4(1) of Part 2 of Schedule 25. That was permissible because the Agency was subject to the same article 4 obligation. The planning decision nevertheless considered the need for a facility of the proposed capacity and its location, including the relevant locational criteria.
5. Directive 2008/98/EC did not govern the domestic obligation applicable when the decision was made. Article 13 did not create a directly enforceable right because it set objectives requiring national implementation and was neither unconditional nor sufficiently precise. The conclusion in Comitato di coordinamento per la Difesa della Cava v Regione Lombardia [1994] ECR I-483 [1994] Env LR 281 supported that analysis.
6. The Inspector was entitled to conclude that traffic emissions would be within acceptable limits and that the proposal’s effects on air quality and health would be insignificant and acceptable. There was no evidential basis for asserting that compliance with those standards would nevertheless endanger human health or harm the environment. The application was not an appeal on the planning merits.