Derbyshire Waste Ltd. v Blewett

This is an appeal of Derbyshire Waste Limited (“Derbyshire Waste”) from the decision of Sullivan J on 7^th November 2003, on a claim by Mr John Blewett for judicial review, quashing on one of three grounds a planning permission given by the Derbyshire County Council (“the Council”) on 23^rd December 2002 to Derbyshire Waste to use land at the former Glapwell Colliery, Sutton Scarsdale, near Bolsover in North-East Derbyshire, for “land reclamation by waste disposal with restoration to agricultural, woodland, grassland and nature conservation”.

The Council has taken no part in the appeal. However, the Court has granted the Secretary of State permission to intervene in the matter, which he does by counsel. The Court has also permitted Friends of the Earth to file written evidence, which they have done in the form of a helpful witness statement of Dr Anna Watson who is employed by them as a waste and resources campaigner.

The main issue in the appeal is whether a waste planning authority, in determining a planning application for waste disposal by landfill, is obliged by provisions of two EC Directives, Council Directive 75/442/EC on Waste, which, in its amended form, (Footnote: ¹) is known as the Waste Framework Directive, and the Landfill Directive 1991/31/EC concerning the treatment of waste, to satisfy itself before granting permission that the proposal complies with the decision-making policies and methodology for the choice of the method of waste management, the “Best Practicable Environmental Option” (“BPEO”)], incorporated in a national plan, Waste Strategy 2000, required by the former of the Directives. BPEO, put shortly, establishes for waste planning decision makers a hierarchy of desirability of methods of confronting waste, starting at the top with reduction of its generation and use of resources, and ending at the bottom with disposal, for example by landfill. All other things being equal, the BPEO methodology is that landfill should be considered last because it is the least desirable environmental option.

Sullivan J held that the Council, in making its planning decision, was obliged to comply with the BPEO methodology, but that even if it was not so obliged, its consideration of BPEO in this case was so inadequate as to render its grant of planning permission unlawful. Derbyshire Waste and the Secretary of State maintain that he was wrong to hold that the Council had such an obligation, and Derbyshire Waste alone argues that he wrongly held on the facts that the Council’s consideration of the BPEO was so inadequate as to render its decision unlawful. Mr Blewettt and Friends of the Earth maintain that he was right to hold that the Council had such an obligation, the latter describing the BPEO process “as a mandatory process in waste planning decisions”. And Mr Blewett supports his decision that, in any event, the Council had given inadequate consideration to BPEO. The Secretary of State took no stand on that alternative issue of fact.

I adopt with gratitude Sullivan J’s summary of the facts in his judgment.

In the mid-1970s Glapwell Colliery closed, leaving two spoil tips. In the early 1980s planning permission was granted for a reclamation scheme, which involved tip washing, opencast mining of shallow seams under the spoil tips and the replacement of the opencast mine spoil and washed deep mine spoil into a landscaped profile. Voids had been created within the re-profiled spoil tips as part of the reclamation works to facilitate landfills. One of them, Smith’s Void, or as it came to be known, Glapwell 3, was to be re-profiled as part of these operations, but the contractor employed to carry out the coal recovery scheme went into receivership, leaving the scheme incomplete.

Glapwell 1 was the first of the voids to be filled. Over a five year period between 1983 and 1988 it received and accommodated some 750,000 cubic metres of waste. Planning permission was granted in 1984 for the filling of two further voids, Glapwell 2 and 3. Waste disposal in Glapwell 2 began in 1988, and finished in November 2002 after planning permission had been granted in 1995 for additional tipping. No tipping took place in Glapwell 3 pursuant to the 1984 permission; but that planning permission expired in December 2003 (operations were limited to a period of 15 years from the start of tipping). The 1984 planning permission had envisaged that Glapwell 3 would have a capacity of about 1 million cubic metres. The present proposal for it involves tipping around 850,000 cubic metres of domestic, industrial, commercial and inert waste over a period of four years, with the overall operational programme, including restoration to agriculture etc. taking six years.

The application site covers about nine hectares and is located within one kilometre of the villages of Glapwell, Palterton, Bramley Vale and Doe Lea. Mr Blewett lives in Bramley Vale. The nearest boundary of Glapwell 3 is about 800 metres from his home and those of the existing tipped voids, Glapwell 1 and 2, about 200 metres away.

Mr Blewett is registered as a disabled person, suffering from chronic bronchitis, asthma and angina. He contended that the dust and smells generated by the land-filling operations at Glapwell 1 and 2 had exacerbated those conditions. He also complained of other incidents of the land-filling operations, including the attraction to the area of rats and seagulls, the former killing some of his pet pigeons and the latter causing pollution by their droppings. He opposed Derbyshire Waste’s application for the grant of planning permission for Glapwell 3, and made representations to the Council in his own right and as a member of the “Stop the Landfill Group”.

The Council is both the waste planning authority and the waste disposal authority for its county area. In its latter capacity, and pursuant to arrangements made under section 30 of the Environmental Protection Act 1990, it had formed Derbyshire Waste to dispose of the County’s waste. Derbyshire Waste is owned, as to 20%, by the Council, and disposes of the County’s waste under a long-term contract with it.

The development proposed by Derbyshire Waste for Glapwell 3, the subject of its planning application, was a “Schedule 2” development as defined in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the 1999 Regulations”). Those Regulations required an environmental statement if the proposed development was likely to have significant effects on the environment by virtue of factors such as its nature, size or location. Derbyshire Waste duly included such a statement with its application, which it made on 8^th February 2001, justifying the proposal on two main grounds, namely to reclaim a despoiled site and to facilitate the disposal of wastes arising in the area.

Over a year later, on 11^th March 2002, the Council’s Regulatory Planning and Control Committee (“the Council’s Committee”) considered the application, assisted by a 55 page report from the Council’s Director of Environmental Services as to its merits (“the Report”). At that time, although the United Kingdom had complied with part of its obligation under Article 7 of the Waste Framework Directive, by producing a national waste plan in the form of Waste Strategy 2000, it was in breach of its Treaty obligations in the case of Derbyshire Council, which, as the local waste planning authority, had not produced its own local waste management plan (see paragraph 32 below). In the Report the Director recommended the grant of planning permission, but subject to no less than 53 conditions. In so recommending, the Director summarised his reasons in the following way: 1) that the proposal would be unlikely to cause significant harm to the amenities of nearby residents; 2) that there would be no shortage of landfill space in the County considered as a whole before 2010 if reduced waste production - about which there was some uncertainty - and landfill targets were achieved; 3) that the proposal was not so large as to create a substantial excess capacity; 4) that it would, in any event, assist in meeting disposal needs in the south-east of the County where an imminent shortfall of landfill space was expected; and 5) that the proposals were probably the only satisfactory way of achieving a sympathetic and worthwhile restoration of the site. He concluded that the proposal accorded with the relevant development plan policies, national policy and regional policy and guidance, specifically mentioning as part of national policy, Waste Strategy 2000 and its incorporation of BPEO. And he reported that he had taken into account other material considerations.

However, on the morning of the very day on which the Council’s Committee was considering the matter, the Secretary of State issued a direction under Article 14 of the General Development Order, preventing the Council from determining the application, with a view to calling it in for his decision. The Committee resolved that, had they been permitted to determine the application, they would have granted it, as recommended in the Report, subject only to a minor amendment to one of the recommended conditions.

On 22^nd April 2002 Mr Blewett applied for permission to claim judicial review on a number of grounds, including one that the Committee should not have resolved to grant planning permission without first satisfying itself, pursuant to Article 8(b) of the Landfill Directive, that the proposal was “in line with” the Government’s waste management plan for England and Wales, namely Waste Strategy 2000, in particular that the proposed landfill was the BPEO for the waste stream(s) in question. That strategic plan had been made and submitted to Parliament in May 2000 pursuant to the United Kingdom’s obligations under the Waste Framework Directive as implemented into our domestic law by section 44A of, and Schedule 2A to, the Environmental Protection Act 1990, and, in relation to the diversion of waste from landfill, by Article 5 of the Landfill Directive.

Mr Blewett made his challenge at that stage as a precaution, since it was then uncertain whether the three months period prescribed by CPR Part 54.5(1)(b) ran from the date of a resolution to grant planning permission or from the date of the permission itself. In the event, the Secretary of State decided not to call in the application. But Mr Blewett’s claim for judicial review had by then been overtaken by the House of Lords’ decision in R (Burkett) v. Hammersmith & Fulham London Borough Council [2002] 1 WLR 1593 that the three-month time limit ran from the date when planning permission had actually been granted, not from the date of an earlier resolution to grant it. Although, as a result, Mr Blewett’s application for permission to claim judicial review had been premature, the court adjourned it to enable him to challenge the grant of permission in due course, if so advised.

On 4^th November 2002 the Council’s Committee reconsidered the application. On this occasion, in addition to the Report put before it at its meeting on 11^th March 2002, it was provided with a report prepared jointly by the County Secretary and the Director of Environmental Services responding to the contentions of Mr Blewett in his judicial review challenge (“the Joint Report”). They confirmed the recommendation in the earlier Report, and the Committee again resolved to grant permission, which was granted on 23^rd December 2002.

With permission from Collins J, on 29^th April 2003, Mr Blewett then sought judicial review of the Council’s grant of permission. Sullivan J, on 7^th November 2003, allowed the claim, holding that the Committee should not have resolved to grant planning permission without first satisfying itself, pursuant to Article 8(b) of the Landfill Directive, that the proposal was “in line with” Waste Strategy 2000, in particular with the BPEO methodology incorporated in it.

Before Sullivan J, counsel for Mr Blewett, Mr David Wolfe, put this part of his claim in the following way. The Council had failed to comply with its obligations under Waste Strategy 2000 to carry out an assessment in order to determine whether the proposed landfill met the requirements of BPEO in producing the best practicable environmental option for the waste stream(s) in question. In finding in favour of Mr Blewett on this issue, the Judge held: 1) that the polices as to BPEO in Waste Strategy 2000 should be read more prescriptively than in earlier national policy guidance; 2) that, as to landfill, the Landfill Directive, which he clearly regarded as having been implemented into our domestic law, is more prescriptive than the Waste Framework Directive; 3) that planning authorities are required, when deciding on permission, not to grant it unless the proposal was “in line with” the policies relating to BPEO incorporated in Waste Strategy 2000; 4) that, in any event, the Council’s consideration of the BPEO was “seriously flawed”; and 5) that, even it was not, he would not exercise his discretion to refuse relief.

Sullivan J granted permission to appeal “given the importance of the issue: what weight must be given to Waste Strategy 2000 in the light of the Landfill Directive?” Accordingly, the main issue in the appeal, as I have said, is whether Sullivan J was correct to hold that compliance with the BPEO policies and methodology is a condition precedent of the grant of waste planning permission in a landfill case. This may be divided into two sub-issues: 1) whether and, if so, how has the relevant provision of the Landfill Directive, Article 8(b), become part of our domestic law; 2) if it has, whether it imposes a more rigorous obligation with reference to BPEO in relation to landfill decisions on waste planning and/or control authorities than the relevant provision of the Waste Framework Directive, Article 7 had previously imposed. In addition, as I have said, there are two further subsidiary issues: 3) whether, in any event, the Council’s consideration of the BPEO in the case was so flawed as to be unlawful; and 4) even if it was, whether Sullivan J should have refused relief, or this Court should refuse relief, in the exercise of discretion.

Before considering the competing submissions on those issues, I should outline the relevant law and the policy documents which, in the circumstances, have given rise to them.

The starting point is the Waste Framework Directive. Articles 3, 4 and 5 of the Directive set out what Article 7 of it calls “the objectives”. These objectives have been made part of our domestic law by Regulation 19, of and Schedule 4 to, the Waste Management Licensing Regulations 1994 (“the 1994 Regulations”) under powers conferred by section 2(2) of the European Communities Act 1972 and other Acts. Article 3 specifies the measures for encouraging the prevention or reduction of waste, its recovery and its use. Article 4, which articulates the central obligation under the Directive, deals with recovery or disposal of waste. It provides, so far as material:

“Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which harm the environment, and in particular –

- without risk to water, air, soil and plants and animals,

- without causing a nuisance through noise or odours,

- without adversely affecting the countryside or places of special interest …”

And Article 5 of the Directive provides:

“1.

Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs. The network must enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move toward that aim individually, taking into account geographical circumstances or the need for specialised installation for certain types of waste.

2.

The network must also enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health.”

Article 7 requires competent authorities to draw up waste management plans in order to attain those objectives. It provides:

“1.

In order to attain the objectives referred to in Article[s] 3, 4 and 5, the competent authority or authorities referred to in Article 6 shall be required to draw up as soon as possible one or more waste management plans. Such plans shall relate in particular to –

- the type, quantity and origin of waste to be recovered or disposed of,

- general technical requirements,

- any special arrangements for particular wastes,

- suitable disposal sites or installations.

Such plans may, for example, cover –

- the natural or legal persons empowered to carry out the management of waste,

- the estimated costs of the recovery and disposal operations,

- appropriate measures to encourage rationalisation of the collection, sorting and treatment of waste.

2.

Member States shall collaborate as appropriate with the other Member States concerned and the Commission to draw up such plans. They shall notify the Commission thereof.

3.

Member States may take the measures necessary to prevent movements of waste, which are not in accordance with their waste management plans. They shall inform the Commission and the Member States of any such measures.”

In Commission v. Greece (Case C-387/97) [2000] ECR I-5047, the European Court, in paragraph 75 of its judgment, described a waste management plan within the meaning of Article 7 of the Directive as “a comprehensive programme with a view to attaining certain objectives”. And, in the recent decision of the Court in Commune de Braine-le-Chateau and Michel Tillieut and Ors v. Region Wallonee (Joined Cases C-53/02 and C-217/02), Advocate General Mishko, in paragraph 47 of his opinion, referred to it as “a policy framework” … which need not necessarily describe in minute detail all aspects of current and future waste disposal management, including sites“. And, as the Court observed in paragraph 30 of its judgment, they may not necessarily be determinative:

“… management plans cannot in all cases be the only factor which determines the exact location of waste disposal sites, inasmuch as the final decision concerning location in some circumstances depends on the relevant rules relating to land-use planning and, in particular, the consultation and decision-making procedures implemented pursuant to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment … as amended …”

As to waste planning authorities, paragraphs 3(1) and 1 of Schedule 4 to the 1994 Regulations provide that a waste planning authority is a “competent authority” the “specified functions” of which include “determining an application for planning permission”. The effect of this is to tie Articles 3, 4 (4(1)(b) in particular) and 5, into the domestic planning process. When a waste planning authority determines an application for planning permission it is a competent authority discharging one of its specified functions. By paragraphs 2(1) and 4 of Schedule 4, it is required to discharge such function “insofar as … [it] relate[s] to the recovery or disposal of waste” in accordance with the objective in paragraph 4(1)(b) namely “implementing, so far as material, any plan made under the plan-making provisions” (in this instance Waste Strategy 2000 and any regional or local plans).

As to the “competent authority or authorities” – note the plural - to draw up these waste management plans, Article 6 of the Waste Framework Directive requires Member States to establish or designate them. In England and Wales this has been implemented by paragraphs 2 and 3 of Schedule 4 to the 1994 Regulations. Table 5 in paragraph 3 includes in the list of competent authorities “any planning authority” in respect of the taking of any “specified action” which, by paragraph 1, includes any planning authority when considering applications for planning permission for waste proposals. And Article 9 of the Directive requires “for the purpose of implementing” Articles 4, 5 and 7, establishments or undertakings carrying out waste disposal or recovery operations to obtain permits therefor from the designated competent authority, thus tying the grant of a permit to the plan, if there is one.

Article 7 of the Waste Framework Directive, as substituted in 1999, (Footnote: ²) in its requirement of competent authorities to draw up waste management plans in order to attain the objectives referred to in Articles 3,4 and 5 of the Directive, was, as I have said, expressly made part of our domestic law by section 44A of the Environmental Protection Act 1990. Section 44A provides so far as material:

“(1)

The Secretary of State shall … prepare a statement (“the strategy”) concerning his policies in relation to the recovery and disposal of waste in England …

…

“(4)

… the strategy must include-

(a)

a statement of the Secretary of State’s policies for attaining the objectives specified in Schedule 2A to this Act; …

(b)

provisions relating to each of the following … -

(i)

the type, quantity and origin of waste to be recovered or disposed of;

(ii)

general technical requirements; and

(iii)

“any special requirements for particular wastes.”

The objectives set out in paragraphs 1 and 2 of Schedule 2A are in substance the objectives set out in parts of Articles 3, 4 and 5 of the Directive, and referred to as such in Article 7.

It should be noted that section 44A(4)(a) of the 1990 Act is derived from Art 7 and that section 44A(4)(b) deals only with three general objectives, not with installations and suitable disposal sites, which are dealt with in Schedule 4 to the 1994 Regulations. Regulation 19 of those Regulations provides that “Schedule 4 (which implements certain provisions of the … [Waste Framework Directive] shall have effect”. Paragraph 2(1) of Schedule 4 to the 1994 Regulations, which clearly applies to both strategic plan-making and planning control, requires “the competent authorities”, for this purpose waste planning and control authorities to:

“discharge their specified functions, insofar as they relate to the recovery or disposal of waste, [sic] with the relevant objectives.”.

It looks as if the draftsman may have mistakenly omitted some words after “waste,” possibly “in accordance with” or “in compliance with” with, or more likely, “in line with”, the critical words to be used in Article 8(b) of the Landfill Directive. (see paragraph 38 below). That the last were the missing words is suggested by the Department of the Environment in paragraph 1.47 of its Circular 11/94, issued on 19^th April 1994, drawing attention to and summarising these provisions of the 1994 Regulations.

“The general duty in paragraph 2(1) means that in exercising their specified functions, authorities must always consider the objectives of the Directive and aim to determine decisions and permit conditions in line with them. …”[my emphasis]

It added, in paragraph 1.48 – as this Court was to hold in R (Thornby Farms Ltd) v Daventry DC; R (Murray) v Derbyshire CC [2002] EWCA Civ 31; [2003] QB 503, and consistently with the formulation of the European Court in Ministere Public v Traen (Joined Cases 372-374/85) [1987] ECR 2141, and the Lombardia Case (Case C-236/92) [1994] Env LR 281, at paras 12 and 13 - that the duty was objective, but not absolute; it was a duty “to have due regard to the objectives” mentioned in Recital 3 to, and Article 4 of, the Directive.

“The duty imposed by paragraph 2(1) of Schedule 4 does not remove authorities’ discretion in exercising their functions. The objectives are not framed in sufficiently precise terms for that. Account should also be taken of the decision of the European Court in the Lombardia case … which has determined that Article 4 should be considered as an objective rather than an absolute requirement.”

Paragraph 4(1), (2) and (3) of Schedule 4 to the 1994 Regulations expressly repeat the objectives set out in Articles 3, 4 and 5 of the Directive, calling them “relevant objectives” for the purpose of the Schedule, and adding in paragraph 4(1)(b) “implementing, so far as material, any plan made under the plan-making provisions”, as defined in section 44A of the 1990 Act, which, as I have said, is derived from Article 7 of the Waste Framework Directive in its provision for the preparation by member states of waste management plans in order to attain those objectives.

The effect of all this would appear to be that the inclusion by paragraph 4(1)(b) of plans under the plan-making provisions as a relevant objective under paragraph 4(1) in relation to the disposal or recovery of waste, though not identified as such in the Directive, results in Article 7 becoming an obligation on the state to draw up waste management plans “to attain” the objectives in Articles 3, 4 and 5 That this is so, has the support of this Court in Thornby, in which, at paragraph 9, Pill LJ held, with the agreement of Robert Walker LJ (as he then was) and Laddie J, that there is no material difference between the wording of Article 4 of the Directive and the wording of paragraph 4(1) of Schedule 4 to the 1994 Regulations. This includes the provision in paragraph 4(1)(b) for “implementing, so far as material any plan made under the plan-making provisions”, which implementation includes, as provided by paragraph 1 of Schedule 4, planning applications under Part II of the Town and Country Planning Act 1900 and section 44A of the Environmental Protection Act 1990. This provision, as Mr James Maurici, on behalf of the Secretary of State, observed, also reflects the wording of Article 9, “[f]or the purposes of implementing Articles 4, 5 and 7, making such implementation an objective for relevant authorities in carrying out their specified functions.

As will appear, the importance of the nature or strength of this implemented obligation has relevance to the first two issues in this appeal, namely whether Article 8(b) of the Landfill Directive has been implemented into, or is otherwise part of, our law and, if it has, whether it imposes any stronger obligation than that resulting from the implementation of the Waste Framework Directive.

It would appear that, to the extent where, as here, the United Kingdom has not prepared local waste management plans in accordance with Article 7 of the Waste Framework Directive, it is in breach of its Treaty obligations; see Commission v UK (Case C- 35/00) [2002] ECR I-00953, para 22, read with Commission v France (Case C-292/99) [2002] ECR I-04097 In Commission v UK, at para 22, the European Court recorded:

“The United Kingdom does not dispute its alleged failure to meet its obligations. It admits that, during the period under consideration, it failed to adopt and/or notify waste management plans capable of covering the entire territory of the United Kingdom … It accepts that the Commission has valid grounds for a declaration of failure to fulfil treaty obligations in the application. It states that competent authorities are engaged in rectifying that situation, by replacing local plans with national strategies, which should constitute the appropriate means of satisfying the requirements of … [the Waste Framework Directive] …”

In Commission v France the Court ruled, at paragraph 44:

“… considering the objectives pursued by the obligation laid down in Article 7(1) of …[the Waste Framework Directive], it is clear from the very wording of that provision that the obligation is necessary in order for the objectives set out in Articles 3,4 and 5 of that directive to be fully attained (see, by analogy, Case C-387/97 Commission v Greece [2000] ECR O-5057, paragraph 95). Chief among those objectives is the protection of public health and the environment, which is the essence of Community legislation relating to waste. That is the reason why, according to the case-law, a failure to fulfil the obligation to draw up waste management plans must be regarded as serious, even if the failure relates to only a very small part of a Member State’s territory, such as a single department … or a single area within a valley …” [my emphasis]

The Landfill Directive of 1999 was introduced, as Sullivan J correctly identified in paragraph 98 of his judgment, to deal with a particular method of waste disposal, landfill, which, as I have said, is at the bottom of the waste hierarchy, that is to say, all other things being equal, it is the least preferred option. One of its purposes was to discourage the unnecessary use of landfill as a method of waste disposal.

The need for such discouragement was well described by Dr Watson in paragraphs 6 to 8 of her witness statement on behalf of the Friends of the Earth:

“6.

Around 400 million tonnes of waste are produced in England and Wales each year. Of this waste 106 million tonnes is waste produced by industry, commerce and households. Most of the waste produced in England and Wales goes to landfill. …. According to DEFRA about 75 per cent of household waste is landfilled each year …

7.

Landfill, as a means of waste disposal is at the bottom of the waste hierarchy due to the impacts that landfills have on both the environment and society. FOE’s concerns about landfill include particularly the following:

•

Land filling materials is a waste of resources – as materials that could be re-used or recycled are buried instead.

•

Land filling materials also exacerbates climate change, because when materials are buried more fossil fuels are used to replace the materials, through mining, manufacturing and transportation around the glob.

•

Landfill sites are also a major source of methane gas – which is a very potent greenhouse gas.

•

Landfill sites can cause serious pollution of rivers, streams and groundwaters.

•

Landfill sites can also create a nuisance to local communities through the generation of traffic, noise, dust, pests, litter and odours.

7.

As a result of these problems the … Landfill Directive was agreed with the aim of reducing the degree to which Member States rely on landfill as the principal means of waste disposal.

Thus, Recital 3 to the Landfill Directive included among its purposes encouragement of the prevention, recycling and recovery of waste and obviating the wasteful use of land; and Recital 2 indicated that it was directed to ensure that, in future, only safe and controlled landfill operations should be carried out. As the Friends of the Earth have pointed out in their witness statement, the Secretary of State has, in his guidance, on this Directive, described it as a “step change in the way we dispose of waste in this country …”.

As I have indicated, this appeal is concerned with Article 8, more particularly with Article 8(b). The Article as a whole is headed “Conditions of the Permit”. However, in considering the effect, in the context of a planning applications for a landfill project, of the Article 8(b) requirement for the project to be “in line with” the relevant waste management plan, it is important to distinguish it from Article 8(a), which is concerned with the issue of landfill permits.

The two paragraphs are introduced in the same way, and provide, so far as material:

“Member States shall take measures in order that:

(a)

the competent authority [namely the Environment Agency (Footnote: ³)] does not issue a landfill permit unless it is satisfied that:

“(i)

without prejudice to Article 3(4) and (5), the landfill project complies with all the relevant requirements of this Directive …

(b)

the landfill project is in line with the relevant waste management plan or plans referred to in Article 7 of … [the Waste Framework Directive]. …” [my emphasis].”

As Mr Christopher Katkowski QC, on behalf of Derbyshire Waste, and Mr David Wolfe on behalf of Mr Blewett observed, it is important to distinguish between these two provisions. Article 8(a), which has been expressly made part of our law, (Footnote: ⁴) obliges the Environment Agency to take measures not to issue a landfill permit unless it is satisfied of various conditions including compliance with all the relevant requirements of the Directive. Article 8(b) which, it is common ground, has not explicitly been made part of our law, requires a waste planning or control authority to take measures in order that a landfill project is “in line with” the relevant Article 7 waste management plan or plans. Thus, a landfill permit under Article 8(a), is not the same thing as a planning permission, with which Article 8(b) is in part concerned; they are two different consents granted by different authorities. It is, therefore, important not to conflate the provisions of Article 8(a) and (b), as Sullivan J may have done in paragraph 92 of his judgment by reading them together so as to impose an obligation on waste planning authorities not to grant a planning permission unless they are satisfied that the proposal is “in line with” Waste Strategy 2000. As can be seen, Article 8(b) does not say that.

Before leaving the Landfill Directive, I should mention Recitals 9 and 18, and Articles 1, 3(3) and 3(4), applying the principles of the Waste Framework Directive where the Landfill Directive is excluded, and the introduction to Article 9, supplementing the provisions in Article 9 of the Waste Framework Directive for the grant of permits for implementing any of the objectives in Articles 4,5 and 7. Recitals 9 and 18 provide:

“(9)

Whereas Member States should be able to apply the principles of proximity and self-sufficiency for the elimination of their waste at Community and national level in accordance with … [the Waste Framework Directive], whereas the objectives of this Directive must be pursued and clarified through establishment of an adequate, integrated network of disposal plants based on a high level of environmental protection;” [my emphasis]

(18)

Whereas because of the particular features of the landfill method of waste disposal, it is necessary to introduce a specific permit procedure for all classes of landfill in accordance with the general licensing requirements already set down in …[the Waste Framework Directive] …”

Article 1 of the Landfill Directive, headed “Overall objective” could not make more clear its supplementary role to the Waste Framework Directive. It begins:

“With a view to meeting the requirements of … [the Waste Framework Directive], and in particular Articles 3 and 4 thereof, the aim of this Directive is, by way of stringent operational and technical requirements on the waste and landfills, to provide for measures, procedures and guidance to prevent or reduce as far as possible negative effects on the environment … from land filling of waste, during the whole life-cycle of the landfill.

Article 3.3, under the heading “Scope”, provides:

“Without prejudice to … [the Waste Framework Directive] Member States may declare at their own option, that the deposit of non-hazardous waste … can be exempted from … [certain] provisions in … this Directive.

And Article 3.4 provides, under the same heading:

“Without prejudice to … [the Waste Framework Directive] Member States may declare at their own option … [certain specified provisions] of this Directive not applicable to: [certain types of landfill sites] …”

I should deal next with BPEO, which has featured in our planning, including waste planning, processes, long before its present articulation and application in Waste Strategy 2000. It had its origin in a decision of OECD countries in 1976, and was adopted and defined in that year by the 12^th Report of the Royal Commission on Environmental Pollution. It was subsequently incorporated into the Waste Framework Directive by amendment in 1991, which in turn imposed an obligation on Member States to prepare a national waste plan incorporating BPEO. That obligation was anticipated in England and Wales by PPG 10: Planning and Waste Management issued in 1999, and given effect to by Waste Strategy 2000.

As I have said, the draftsmen of Waste Strategy 2000, in paragraph 3.4 and Annex D, Glossary of Terms”), have adopted the Royal Commission on Environmental Pollution’s definition, namely:

“A BPEO is the outcome of a systematic and consultative decision-making procedure which emphasises the protection and conservation of the environment across land, air and water. The BPEO procedure establishes, for a given set of objectives, the option that provides the most benefits or the least damage to the environment as a whole, at acceptable costs, in the long term as well as in the short term. …”

As to the level of decision-making to which BPEO applies, the many references to it in Waste Strategy 2000 appear to give mixed messages, but this may be more a product of the different contexts in which it is presented than of general ambiguity. The general notion set out in Part 1, Chapter 4, establishes broad principles for action by all sections of society from the Government down. However, many references to BPEO in that part of the document, of which the following, in Chapter 4 of Part 1, are examples, appear to apply more to strategic, national, regional and local applications of the principle, and the relationship between them, rather than to give guidance for decisions on planning applications.

p 40, under the head “Delivering change” – “Decisions on waste management, including decisions on suitable sites and installations for treatment and disposal, should be based on local assessment of the Best Practicable Environmental Option.”

p 41, para 4.4 – “The right way to treat particular waste streams cannot be determined simply. The objective is to choose the Best Practicable Environmental Option (BPEO) in each case. BPEO varies from product to product, from area to area and from time to time. It requires waste managers to take decisions which minimise damage to the environment as a whole, at acceptable costs, in both the long and the short term. … “

p 42, para 4.5 – “In determining BPEO we will expect those making decisions to take account of three key considerations:

•

the waste hierarchy. Within the hierarchy the Government and the National Assembly do not expect incineration with energy recovery to be considered before opportunities for recycling and composting have been explored. …

•

the proximity principle requires waste to be disposed of as close to the place of production as possible. This avoids passing the environmental costs of waste management to communities which are not responsible for its generation, and reduces the environmental costs of transporting waste.

•

self-sufficiency. The Government believes that waste should not be exported from the UK for disposal. Waste Planning Authorities and the waste management industry should aim, wherever practicable, for regional self-sufficiency in managing waste.

…

4.7

The Government and the National Assembly now look to key contributors to take action as set out in the following sections.”

p 44, para 4.13, setting out the responsibilities of waste planning authorities – “Waste Planning Authorities are responsible for identifying suitable sites for waste treatment or disposal installations. The Government and the National Assembly look to the Waste Planning Authorities to:

take full account of the policies described in this strategy, in particular:

the importance of establishing the BPEO

the importance of taking an integrated approach to waste management

the need to move substantially away from landfill towards recycling, composting and energy from waste

in England, to ensure consistency with the quantity of tradable landfill permits available and with statutory performance standards for recycling

implement planning policy guidance fully and quickly – PPGs 10 and 11 in England and PPG (Wales) in Wales – together with any relevant Regional Planning Guidance

make realistic assessments of likely future requirements for the number, type and siting of waste treatment facilities in their area in the light of this waste strategy, proposals for development (e.g. new housing and commercial centres)

promote informed debate with the public and businesses in their area about the need for waste management facilities and the options available to produce the Best Practicable Environmental Option

work with the Environment Agency to ensure that planning and licence conditions are complementary and effective and to ensure timely decisions, twin tracking where possible.

However, Chapter 3 of Part 2 of the Strategy, under the heading “The decision-making framework”, in its focus on who is responsible for applying the technique and the manner of its application, gives another picture. It has two main themes. First, it sets out its policy of BPEO as its recommended technique for the making of waste management decisions. Second, it applies that policy to the waste management process looked as a whole. Thus, it identifies the BPEO procedure as “a framework that local authorities “must follow” “[w]hen taking waste management decisions on suitable treatment options, sites and installations”, and which other decision makers, such as business waste managers, should regard as “a guide”. In paragraph 3.1, it emphasises the strategic nature of the exercise, but considered at all levels - national, regional and local:

“The Government and the National Assembly for Wales believe that the most effective waste management decisions can be taken by adopting an integrated approach to waste management. Integrated waste management can be considered to be a number of key elements working in concert, in particular:

•

recognising each step in the waste management process as part of a whole – decisions should take account of the collection, transport, sorting, processing and recovery or disposal of wastes; …

•

involvement of all key players – an integrated approach to waste management should also define the contributions which all interested parties (which might include waste producers and managers, waste re-processors, waste regulators, waste management planners, community groups, consumers and householders, and Government) can make in the development and achievement of common goals and objectives

•

a mixture of waste management options – those planning the management of significant quantities of various wastes should avoid over-reliance on a single waste management option. It is unlikely that one approach will represent the Best Practicable Environmental Option (BPEO) for all elements of the waste stream

•

formal and informal partnerships – especially between those organisations obligated with legal responsibilities for managing waste that they generate or that arises in their areas. In particular this means Waste Collection and Waste Disposal Authorities within a particular area. Local authorities within a region who will also need to take a collective view of the more strategic regional implications of their various policies.

Paragraph 3.2, in common with other passages in the document, stresses the importance of the BPEO methodology at local level in terms capable of encompassing, not only the development of local waste plans, but also of their application as a matter of planning control. It states:

“The following section gives some further detail on determining BPEO. Subsequent sections in this Chapter consider the impact of land use planning, waste management licensing, integrated pollution prevention and control regulation, the Duty of Care, which all have a role to play in determining and implementing optimum waste management solutions across England and Wales. Decisions on how to treat or dispose of waste should be taken locally, taking account of local circumstances and nature of particular waste streams. When taking waste management decisions on suitable treatment options, sites and installations, local authorities must follow the framework set out below. This framework should also act as a guide for other decision-makers, including business waste managers.”

Paragraph 3.9 attempts to give some guidance as to weighting of the various options in the BPEO waste hierarchy, when determining the mix of options to provide BPEO. Though ostensibly, and no doubt primarily, a strategic exercise, some of its notions in simple form are well known tools in the balancing exercise so often necessary for decision-making when considering an application for planning permission, whether in a waste context or otherwise:

“The judgment about which mix of waste management options provides the BPEO can be resolved by analysing the trade-offs between objectives or criteria. This can show the extent to which one objective is sacrificed in order to achieve another (for example, how much costs could rise to reduce the impact on global warming). Formally, this can resolved using decision techniques such multi-media analysis (MCA). These entail the systematic modelling of decision-makers’ preferences, to resolve the choice between several options involving a number of objectives or criteria. By aggregating disparate information onto a common index of value they provide a rational basis for classifying the choices.”

With that over-long introduction to BPEO, I should now set out in a little more detail its main principles which, among other things, rate landfill as the least favoured manner of treatment of waste, I draw from paragraphs 3.3 and 3.5 – 3.10 of Chapter 3 of Part 2 of. Waste Strategy 2000, the three main principles of BPEO: namely “the precautionary principle”, the proximity principle” and “the waste hierarchy”:

“The precautionary principle”

“… where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”

“The proximity principle”

…waste should generally be disposed of as near to its place of origin as possible …”

“The waste hierarchy”

… a conceptual framework, which acts as a guide …

•

The most effective environmental solution is often to reduce the generation of waste – reduction

•

Products and materials can sometimes be used again for the same or a different purpose – re-use

•

Value can often be recovered from waste, through recycling, composting or energy recovered

•

Only if none of the above offer an appropriate solution should waste be disposed of.”

In drawing on passages from Waste Strategy 2000 as one source of articulation of BPEO, I have anticipated some of the Strategy’s content as “the relevant waste management plan” for the purposes of Article 7 of the Waste Framework Directive. Paragraph 5 of Part 1 of the Strategy, which is headed “Status of the strategy”, states:

“This strategy is a waste management plan for England and Wales under the EC Waste Framework Directive … implemented by Section 44A of the Environmental Protection Act 1990 …”

The effect, as I have indicated in paragraph 30 of this judgment, is that paragraph 4(1)(b) of Schedule 4 to the 1994 Regulations should be read in this context as if it read “implementing, so far as material, the Waste Framework Directive in the form of Waste Strategy 2000”.

Waste Strategy 2000 provides, in Chapter 4 of Part 1, that each waste planning authority, which is usually the local planning authority responsible for the making and enforcement of local planning, including waste management, policy, should prepare a local waste management plan taking into account, inter alia, BPEO and planning policy guidance on waste in the form of PPGs (Footnote: ⁵). As I have said, at the material time, the Council, in its capacity as a waste planning authority for Derbyshire had not done that.

The general relationship of Waste Strategy 2000 and the two Directives from which it derives its force within our planning process is to be found via paragraph 4 of Schedule 4 to the 1994 Regulations, implementing, inter alia, the obligation on local waste management authorities imposed by Article 7 of the Waste Framework Directive, to draw up a waste management plan. Such authorities, when considering a planning application for use of a site for waste management purposes, must approach their decision as required by sections 54A and 70(2) of the Town and Country Planning Act 1990 Act, namely with regard to and in accordance with the development plan unless material considerations indicate otherwise. That is because the 1994 Regulations, read together with regulation 10(4)(b) of the Pollution Prevention and Control (England and Wales) Regulations 2000, confine the grant of a permit for the carrying out of a specified waste management activity at an installation to a site in respect of which, where necessary, there is planning permission for it. Any local waste management plan drawn up, or which should have been drawn up, incorporating BPEO policies, pursuant to Article 7 is at the very least a material consideration for this purpose. But the question is whether, notwithstanding what would otherwise be a proper exercise of planning judgment, BPEO considerations may trump the development plan and other material considerations, as Mr Wolfe has contended. Sections 54A and 70(2) of the Town and Country Planning Act 1990 provide:

“54A Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.”

70(2) In dealing with … [an application for planning permission] the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material consideration.”

As Mr Wolfe helpfully summarised it, the central thrust of Sullivan J’s judgment was that planning permission should only be granted for a landfill site if it is the BPEO as incorporated in Waste Strategy 2000 for dealing with the waste stream involved. The main issue in the appeal is whether he was correct to regard the BPEO exercise and outcome as a pre-condition of planning permission in that way, or whether as Mr Katkowski and Mr Maurici who appeared for the Secretary of State put it, the answer in any individual case must turn on the relative weight to be given to the BPEO objectives when considered alongside and against all other material planning considerations. As I have indicated, this issue consists of two overlapping sub-issues. 1) whether and, if so, how has Article 8(b) of the Landfill Directive been made part of our law; and 2) if it is part of our law, whether it imposes, in relation to planning applications for landfill sites, a more rigorous obligation under BPEO as incorporated in Waste Strategy 2000 on waste planning and/or disposal authorities than Article 7 of the Waste Framework Directive in relation to other forms of waste management.

If the Judge was wrong on either of those sub-issues, there are, as I have said, two further subsidiary issues. They are whether the Council’s consideration of the BPEO was so flawed as to be unlawful in any event, and, if so, whether Sullivan J should have refused Mr Blewett relief in the exercise of his discretion.

As I have said, the Council did not, in its strategic waste planning role under Waste Strategy 2000 prepare a local waste planning strategy, still less carry out a strategic BPEO assessment for the waste stream(s) in question. In his judgment, Sulllivan J’s main concern was whether the Landfill Directive objectives imposed wider or more rigorous obligations on waste planning authorities in the grant of planning permissions for landfill sites, than did the more general objectives in the Waste Framework Directive, and he held that it did. I shall return to the reasons he gave for that. However, on the threshold point whether the relevant provision – Article 8(b) - of the Landfill Directive is part of our domestic law, he proceeded, with little or no analysis, on the assumption that it had been implemented. As Mr Katkowski acknowledged, the Judge can perhaps be forgiven for not considering more closely the point of implementation since it was not fully argued before him.

Sullivan J’s acceptance that Article 8(b) is part of our law led him, as a matter of interpretation, in part by contrasting the words “in line with” in Article 8(b) with the provisions of the Waste Framework Directive, as implemented in paragraphs 2(1) and 4(1)(b) of the 1994 Regulations, to conclude that it was not sufficient for the Council, in deciding to grant Derbyshire Waste planning permission, to keep the requirements of BPEO identified in Waste Strategy 2000 “in mind”; it had to be satisfied that the proposal would satisfy those requirements. This is how he reasoned the matter at paragraphs 98 and 99 of his judgment:

“98.

The 1999 Landfill Directive is concerned with a particular method of waste disposal, landfill, which is at the bottom of the waste hierarchy (that is to say, all other things being equal, it is the least preferred option). The purpose of the Landfill Directive included encouraging the prevention, recycling and recovery of waste and obviating the wasteful use of land (Recital 3), and ensuring that, in future, only safe and controlled landfill operations should be carried out (Recital (2)). In short, it sought to discourage the unnecessary use of landfill as a method of waste disposal.

99.

To this end, Article 8 of the Landfill Directive is more prescriptive than the Framework Directive as implemented by paragraphs 2 and 4(1)(b) of the 1994 Regulations. In ordinary language an obligation to be satisfied that a proposed development is ‘in line with’ a waste management plan, is more stringent than an obligation to keep the objective of implementing the plan, so far as material, in mind. The difference in wording between the two directives, requiring greater weight to be placed upon the waste management plan, is deliberate, having regard to the purposes of the later directive. The words ‘in line with’ admit of some flexibility. They are perhaps less prescriptive than ‘in accordance with’. Moreover, given the complexity of the subject matter and the many factors that may have to be taken into account when taking individual waste disposal decisions, the waste management plan itself may well allow for further degree of flexibility. …

Neither Mr Katkowski nor Mr Maurici suggested that the Judge was wrong to regard Article 8(b) of the Landfill Directive as part of our law, and they agreed as to the route by which it had occurred, namely via the implementation by the 1994 Regulations of the Waste Framework Directive. However, Mr Katkowski sought to derive from that route a challenge as to the correctness of the Judge’s conclusion that Article 8(b), via Waste Strategy 2000 and BPEO, imposed a more rigorous obligation on waste planning and development control authorities in relation to landfill than in relation to other means of waste treatment.

On the threshold point of implementation the common starting point of Mr Katkowski and Mr Maurici was that there is no specific domestic provision explicitly implementing Article 8(b) of the Landfill Directive. Even the Landfill (England and Wales) Regulations 2002, which came into force in mid 2002, effectively implementing the Directive in all or most of its provisions, made no specific reference to Article 8(b). The reason for such omission, they submitted, is that there was no need for it, since Article 8(b) was no more than a restatement of the requirement in Article 9 of the Waste Framework Directive on waste disposal or recovery operators to obtain permits from the designated competent authority, namely in England and Wales from the appropriate waste planning authority. As a result, they maintained that all that Article 8(b) did was to impose an obligation on such an authority to ensure that a landfill project is “in line with” the Waste Framework Directive’s Article 7 plan as implemented in relation to local waste planning authorities through paragraph 4 of Schedule 4 to the 1994 Regulations, here via Waste Strategy 2000.

Mr Katkowski and Mr Maurici, in elaboration of their common submission on implementation said that the only candidates for implementation of Article 8(b) in relation to the role of waste planning authorities in determining planning applications are paragraphs 1, 2(1), 3(1) and 4(1)(b) of Schedule 4 to the 1994 Regulations, read together with regulation 10(4)(b) of the Pollution Prevention and Control (England and Wales) Regulations 2000 confining the grant of a permit for the carrying out of a specified waste management activity at an installation to a site in respect of which, where necessary, there is planning permission for it. But, as those provisions in their present form pre-date the Landfill Directive, they submitted that their effect must be that the Government considered them apt to implement Article 8(b) as they stood, that is, that they did not require amendment in order to effect the transposition. Mr Katkowski maintained, in addition, that it is established in Community law that the result envisaged by a Directive does not require implementation into domestic law where it no longer needs to be implemented because the matters covered by it are already in force in a member state, citing the opinion of Advocate General Geelhoed, at paragraph 37, in Marks & Spencer plc v Customs and Excise Commissioners [ECJ] Case- 62/00, [2003] QB 866.

Anticipating briefly the debate on issue 2, Mr Katkowski and Mr Maurici maintained that, on their approach, the nature of a waste authority’s duty under paragraphs 2(1) and 4 of Schedule 4 to the 1994 Regulations to discharge its duty in accordance with “the relevant objectives”, namely those in Articles 3,4,5 and 7 of the Waste Framework Directive, is governed by our domestic law, in particular, the decision of this Court in Thornby, in which the Court considered, but made little distinction in this context between, an “objective” and a “material consideration”. Their point was that, although a waste planning authority must, as Pill LJ, in Thornby, interpreted paragraph 4(1)(b) of Schedule 4 to the 1994 Regulations, “[keep] in mind” the “objective” of implementing Waste Strategy 2000, it may still grant permission in the light of all the material considerations even if it does not implement that objective.

Mr Wolfe submitted that Sullivan J’s acceptance that Article 8(b) of the Landfill Directive is part of our law and his reasoning and decision on this ground were correct and accorded with obvious common sense. In so submitting, he relied heavily on the recognition in the strategy and policy documents that, in general, landfill, because it is the least environmentally sound way of dealing with waste, is at the bottom of the list of the hierarchy of options for waste management and should, therefore be avoided if possible. He added that if, as Sullivan J held, Article 8(b) of the Landfill Directive requires something more than keeping Waste Strategy 2000 in mind, that can be achieved either by reading domestic legislation to give effect to the Directive (per Marleasing SA v La Comercial Internacional de Alilmentacion SA Case C-106/89) [1990] ECR I-4135, ECJ or by treating is as a case of direct effect. He said that, however it is done, it cannot dilute the obligation to give effect to the requirements of the Directive – thus it does not matter whether is by implementation under the 1994 Regulations or otherwise. Domestic law must be construed to give effect to the requirements of the Directive.

As to Pill LJ’s treatment in Thornby of “objectives and “material considerations”, Mr Wolfe said that, whether it was correct or not, there is nothing illogical in distinguishing between the former, as something in accordance with which a decision must be taken, and the latter as merely something that has to be taken into account.

In my view, the short answer to the first issue - whether Article 8(b) of the Landfill Directive is part of our law – is that it is part of our law, by the medium, and for the reasons given by Mr Katkowski and Mr Maurici; that is, via the pre-existing 1994 Regulations in their implementation of the obligation in Article 7 of the Waste Framework Directive, “to attain the objectives … in Article[s] 3, 4 and 5” of it to draw up waste management plans. It is noteworthy, though not determinative, that that was and is the understanding of the Secretary of State as expressed in an undated Note on the Transposition of the Landfill Directive, which states as to Article 8(b):

“This requirement has already been transposed in the PPC Regulations through the duty placed on the Environment Agency not to issue a permit to any waste management activity unless it has already obtained planning permission.”

But even if that were not so, given the role of Article 8, and of the Landfill Directive as a whole, as a supplement and a complement to the Waste Framework Directive, to deal with landfill as a particular form of waste management, there would be a strong common-sense imperative, to construe the 1994 Regulations, and any waste management plan made or amended pursuant to the obligation under Article 7 that they implement, as part of the same mechanism for attaining the objectives in Articles 3, 4 and 5 of it.

Whichever approach is adopted, I can see no logical basis for necessarily tying the views of Pill LJ in Thornby as to the relative meanings of “objectives” and “material considerations” in the context of the incompletely expressed and broad obligations expressed respectively in paragraphs 2(1) and 4(1)(b) of the 1994 Regulations (see paragraph 28 above) to the terms of any Article 7 waste management plan. Such a plan or plans may be made and/or amended or supplemented in the light of the possibly more rigorous requirements of the Landfill Directive or other directives. The meaning of the words in Article 8(b) of the words “in line with” a plan required by Article 7 cannot depend on earlier domestic judicial interpretation of domestic legislation effectively implementing Article 7. And, as Mr Wolfe observed, if compliance of our domestic law with European Law is to depend on purposive construction, our domestic law must be construed to give effect to the requirements of the two Directives read together, not the other way round.

It has to be remembered too that the final content or product of the Article 7 obligation on member states turns, not only on effective implementation or domestic purposive construction so as to comply with its broad objective and those of Articles, 3, 4 and 5, but also on the content and wording of their waste management plans from time to time. Such plans themselves may vary one from another and internally according to context from prescriptive to the aspirational. In such a “hinged” mechanism for giving domestic effect to European Law, domestic judicial formulations of the meaning of a loosely expressed Directive or domestic legislation implementing it in one context should not be given the prescriptive force in another, albeit related, context, that a later sufficiently specifically worded Directive or domestic statutory provision applying it might command.

However, as signposted in paragraph 28 above, and as will appear in my consideration of the next issue, as a matter of construction Pill LJ’s approach in Thornby may be as appropriate to the explicit test in Article 8(b) of “in line with” as the less explicit formulation in Article 7 and paragraphs 2(1) and 4(1)(b) of Schedule 4 to the 1994 Regulations.

This issue, stated shortly, is whether, as Sullivan LJ held, the meaning and/or effect of the words in Article 8(b) of the Landfill Directive, “in line with” the relevant waste management plan or plans is that planning permission for a landfill proposal should only be given where it satisfies the policies relating to BPEO as incorporated in Waste Strategy 2000, or whether it is sufficient if the authority, has, in the Thornby sense, kept BPEO in mind.

Before I continue any further, I should set out how Pill LJ (with whom Robert Walker LJ, as he then was, and Laddie J agreed), after a review of the authorities, put the matter in paragraph 53 of his judgment in Thornby:

“An objective in my judgment is something different from a material consideration. I agree with Richards J that it is an end at which to aim, a goal. The general use of the word appears to be a modern one, in the 1950 edition of the Concise Oxford Dictionary the meaning now adopted is given only a military use: ‘towards which the advance of troops is directed.’ A material consideration is a factor to be taken into account when making a decision, and the objective to be attained will be such a consideration, but it is more than that. An objective which is obligatory must always be kept in mind when making a decision even while the decision-maker has regard to other material considerations. Some decisions involve more progress towards achieving the objective than others. On occasions, the giving of weight to other considerations will mean that little or no progress is made. I accept that there could be decisions affecting waste disposal in which the weight given to other considerations may produce a result which involves so plain and flagrant a disregard for the objective that there is a breach of obligation. However, provided the objective is kept in mind, decisions in which the decisive consideration has not been the contribution they make to the achievement of the objective may still be lawful. I do not in any event favour an attempt to create a hierarchy of material considerations whereby the law would require decision-makers to give different weight to different considerations.” [my emphasis]

Pill LJ further explained his reasoning in paragraph 54 and in expressing his conclusion on the facts in paragraph 64;

“54.

That accords with the approach of the European Court of Justice had in mind when it used the expression ‘due regard’ in the Traen case [1987] ECR 2141 and when in Commission of the European Communities v Italian Republic [1999] ECR I-7773, 7824, para 67 the court referred to the ‘margin of discretion in assessing the need for such measures’ and, at para 68, accepted that the existence of a situation not in conformity with the objective does not necessarily involve a breach of article 4. The above analysis, which substantially agrees with that of Richards J in the Leicestershire County Council case [2000] Env LR 35,57, para 48, is also consistent with the wording of article 249 EC (ex article 189):’A Directive shall be binding, as to the result to be achieved, … but shall leave to the national authorities the choice of form and methods.”

“64.

… Derbyshire had to decide whether or not to grant planning permission. The director had regard to material considerations in his report. Derbyshire accepted the director’s recommendation that the benefits of the proposal outweighed the disbenefits and granted permission. That was a perfectly ordinary and conventional decision unless it breached article 4 and paragraph 4. As a contribution to achieving the article 4 objectives it was of little value in circumstances where there was no need for it, but that does not render it unlawful. The objective is not an overriding consideration on these facts. A council with the objectives well in mind may still grant permission for the reasons given in the director’s report. This modest extension of landfill is not so contrary to the achievement of the objective that Derbyshire were obliged to refuse permission. The discretion available to them permitted them to take a broader view than merely to ask which of two possible outcomes contributed more to the objective. The obligation is not overriding in that sense.”

This is how Sullivan J dealt with the issue in paragraphs 100-106 of his judgment:

“100.

… Both parts 1 and 2 of … [Waste Strategy 2000] must be read as a whole. It is true that it is an important source of guidance which must be taken into account by local planning authorities. But on its face it professes to be more than that: it implements … the requirement within the Waste Framework Directive … as incorporated into law by section 44A of the Environmental Protection Act. …

101.

Fairly read as a whole, the policies relating to BPEO in … [Waste Strategy 2000] are, and are intended to be, more prescriptive than earlier policy guidance. …

102.

On a fair reading, the Strategy does not simply maintain the status quo in policy terms, leaving local planning authorities free to give such weight as they choose to BPEO. One of the main objectives of the Strategy is to ‘deliver change’ by placing greater emphasis on the need to choose the BPEO when making waste management decisions.

103.

It is true that Chapter 3 in Part 2 of the Strategy applies to waste management decisions by local authorities generally, but contrary to the advice given to members in the Joint Report … it applies with no less force to waste planning authorities when they are taking decisions on planning applications for waste disposal. … It is for waste planning authorities when deciding whether or not to grant planning permission for landfill proposals to ensure that they are “in line” with Parts 1 and 2 of the Strategy.”

…

106.

For these reasons, I conclude that the … [Council’s] approach to the status of the policies relating to BPEO in Waste Strategy 2000 was erroneous in principle because the Joint Report effectively relegated BPEO to a material consideration to be taken into account but to be given such weight as the … [Council] thought fit. Such an approach did not accord with Pill LJ’s pre-Landfill Directive and Waste Strategy 2000 dicta in …[Thornby]. There was no recognition of the … [Council’s] duty, post the publication of the Strategy and the implementation of the Landfill Directive, not to grant planning permission unless the proposed development was ‘in line with’ the policies relating to BPEO in Waste Management 2000.”

Derbyshire Waste’s case and the Secretary of State’s position is that Sullivan J was wrong to quash the planning permission on the ground that Article 8(b) introduced a more prescriptive regime for landfill than Article 7 had established for waste management generally so that there should be no grant of planning permission for a landfill proposal unless it was the BPEO in the circumstances. Mr Katkowski and Mr Maurici submitted that, in determining such an application, a waste planning authority may, but is not obliged to refuse an application for a landfill permit application because it does not consider that it represents the BPEO for dealing with the waste in question. Mr Wolfe seeks to uphold the Judge’s ruling and his reasoning for quashing the planning permission on this issue. Friends of the Earth take the same stance. Dr Watson, in paragraph 23 of her witness statement, puts their case in the following way:

“The BPEO methodology (as elaborated in WS 2000, the UK national plan under Article 7 of the Waste Framework Directive) is the key way in which the UK gives effect to its obligations to seek to progress waste decisions up the waste hierarchy by ensuring that no particular waste decision is made unless it can be demonstrated that options higher up the waste hierarchy are not practicable.”

Mr Katkowski’s and Mr Maurici’s submissions, in summary, are that: (1) in determining an application for planning permission for a landfill proposal, a waste authority’s powers of determination are not so restricted that it can only grant permission if the proposal is consistent (i.e. “in line with”) the policies set out in Waste Strategy 2000, including in particular what the Strategy has to say about BPEO; and, (2) in any event, Waste Strategy 2000 does not state that a landfill proposal can only be granted planning permission if it is “in line” with the BPEO.

Mr Katkowski, whose submissions on this issue were largely supported by Mr Maurici, argued that, in relation to the role of waste planning authorities in determining planning applications, Sullivan J erred in treating Article 8(b) of the Landfill Directive as if its implementation into our law introduced a more prescriptive regime than that of Article 7 and 9 of the Waste Framework Directive, As I have indicated, he suggested that, as those provisions and their implementation pre-dated the Landfill Directive, the reality is that when the latter was issued in 1999 the Government considered that Article 8(b)’s requirement that any landfill project should be “in line with” any relevant waste management plan or plans was no more than a restatement of the obligation to give effect to Article 7 plans contained in Article 9. He submitted, therefore, that the words “in line with” in Article 8(b) are no more prescriptive than those in Article 9 of the Waste Framework Directive tying the grant of permits and planning permissions to the plan.

As to Pill LJ’s approach in Thornby, Mr Katkowski submitted that it is consistent, in particular in the passages that I have emphasised in paragraph 68 above, with that of the subsequent decision of the European Court of Justice in Braine-le-Chateau. By parity of reasoning, he argued that when, as here, a waste planning authority determines a planning application for the disposal of waste, the obligation on it to keep in mind the objective of implementing the Waste Framework Directive through the medium of Waste Strategy 2000 does not require it to reject the proposal unless it implements that Strategy. Provided that it has kept the objectives in the Strategy in mind, there may be some other material consideration or considerations to which it concludes it should decisive weight. In short, he submitted, the Strategy, in its incorporation of BPEO, is not an overriding consideration in each case.

Mr Maurici, whilst a party to those arguments, focused more on the issue of the relative “weight” of BPEO considerations according to whether the proposal was for landfill or for another means of waste management. He submitted that Article 8(b) was intended to provide clarity, not to differentiate in waste management plans between landfill decisions and other types of disposal or recovery decisions. He said that the strategic nature of the waste planning process prevents an interpretation of Article 8(b) as specifying different requirements from the more general ones contained in the Waste Framework Directive. He developed that line of argument by making two further points. First, the obligation in Article 8(b) to ensure that a landfill project is “in line with” Article 7 plan is an important, but not the only planning consideration to which local planning authorities must, through paragraph 4 of Schedule 4 to the 1994 Regulations, have regard when making their planning decisions. Second, neither the coming into force of the Landfill Directive nor the issuing of Waste Strategy 2000 can affect the status to be accorded to the objectives of the Waste Framework Directive as implemented in the 1994 Regulations and as interpreted in Thornby.

Mr Maurici also identified the practical difficulties in Sullivan J’s conclusion - by whatever route he reached it - that Article 8(b) provided a more prescriptive test than in effect Article 9 of the Waste Framework Directive. He pointed out that Waste Strategy 2000 is, amongst other things, intended to provide a framework to help local planning authorities to decide on suitable waste treatment options. They might, for instance, have to assess whether a particular area really needs a landfill facility or an incinerator to meet best its waste management needs. It would make little sense in the context of a decision whether to grant planning permission for one or other option to attach a different weight to the local waste management plan according to which option it was considering as against other material planning considerations under section 54A of the 1990 Act. Whilst, in its consideration of the local waste management plan itself, the local planning authority would favour other methods of treatment because under that plan landfill is the least preferred option, it should not confuse the issue of the weight to be given to the plan in relation to all the material planning considerations with the relative weight of the different options for which the plan provided. The weight to be attached to the plan in a landfill case is no greater than that for other methods of treatment; it is just that the plan does not, or should not, favour landfill.

Mr Maurici’s submissions led him to characterise the Landfill Directive as a “supplement” to the Waste Framework Directive. He said that it provides in relation to landfill more stringent and detailed operational rules for the general rules contained in the Waste Framework Directive, and thus falls within the provision in Article 2(2) of it for the laying down “by means of individual Directives” of “[s]pecific rules for particular instances or supplementing those of this Directive on the management of particular categories of waste” (save for certain particularly hazardous forms of waste specified in Article 2(1)(b) already covered by other legislation). He referred to the observation of the European Court in AvestaPolarit (Case – 114-01, 11 September 2003), at paragraph 48, tying such further Directives to the general regime of the Waste Framework Directive:

“… in contrast to what is expressly laid down in respect of the categories of waste listed in Article 2(1)[(1)] of [the] Directive … , the categories of waste which are the subject of individual directives under Article 2(2) remain subject overall to the … Directive, even if individual rules derogating from its provisions may be adopted on certain aspects and supplementary rules may be adopted with a view to more extensive harmonisation of the management of the waste in question. …”

Thus, Mr Katkowski and Mr Maurici submitted that, provided a decision-maker keeps in mind the “relevant objective” or “relevant objectives”, it may nevertheless make a decision that does not promote it or them, in this case “Waste Strategy 2000” because it considers, say, that it should give some other material consideration or considerations greater weight.

Mr Wolfe disagreed. He suggested that their argument amounted to an impermissible attempt to make European Union law fit our pre-existing domestic regime. He submitted that, by Article 8(b) of the Landfill Directive, planning permission had to be “in line with” Waste Strategy 2000 and thus with the BPEO test which it required to be applied. As to the meaning of “in line with”, he drew attention to its substitution by the draftsman for the formula in the final Council proposal for the Landfill Directive of “is compatible with”, suggesting a conscious tightening of meaning.

Accordingly, submitted Mr Wolfe, the first matter for resolution is the proper construction of the requirements of Waste Strategy 2000 in relation to BPEO, which, he maintained, Sullivan J correctly held were intended to be more prescriptive than earlier guidance in relation to it, for example, in PPG 10. He said that Waste Strategy 2000’s description[s] of itself in parts as “advisory” must be considered in the context of the document as a whole and in the circumstance that it was prepared to implement this country’s obligations under Article 7 of the Waste Framework Directive to make a “plan”, which by Article 8(b) of the Landfill Directive, had to be “in line with” or, as he paraphrased it, “in conformity with” the requirements of Waste Strategy 2000. As to the weight to be given in the domestic planning process to its requirements he said that a domestic characterisation of its articulation of the BPEO principle as being merely another objective to keep in mind is insufficient. He agreed, therefore, with Mr Maurici that the status or weight of Waste Strategy 2000 is not, as suggested by Sullivan J in paragraphs 99-102 of his judgment, dictated by its own terms, but by the Waste Framework Directive as implemented via paragraph 4 of Schedule 4 to the 1994 Regulations, Article 7 of which requires the local plan to deal, as a matter of local planning policy, with “suitable disposal sites or installations”.

On the Thornby point, Mr Wolfe pointed out that Pill LJ was not dealing with Article 7 plans. He was concerned only with the matters in Article 4 of the Waste Framework Directive to which paragraph 4(1)(a) of Schedule 4 to the 1994 Regulations gives effect, not the provisions of Article 7 of the Directive, which do not feature in Article 4. In the 1994 Regulations, compliance with the Article 7 plan is put as an “objective” alongside the matters from Article 4. But that is not how the plan sits within the Waste Framework Directive itself; for example Article 9 requires that an establishment requires a permit “for the purposes of implementing Articles 4, 5 and 7. And Article 7(1) then requires the plan “in order to attain the objectives referred to in Articles 3,4 and 5 …”

Mr Wolfe also pointed out that Pill LJ did not have the benefit of the European Court’s decision in Braine-le-Chateau of 1^st April 2004, in which it held at paragraph 35 that Article 7 requires management plans to include matters of some specificity, such as a map specifying exact location of disposal sites or sufficiently precise location criteria to enable the authority responsible for issuing a permit for landfill project to determine whether “it falls within the management framework provided by the plan”. He also referred to paragraph 45 of the judgment in that case, which seemingly (see paragraphs 37 and 38 above and 87 below) states that Article 8(b) of the Landfill Directive forbids the grant of a landfill permit unless the proposal for it is “in line with” the relevant plan.

Accordingly, submitted Mr Wolfe, even if the matters in Article 4, considered alone, are simply objectives to be kept in mind [per Thornby], the plan (which is separate) is there to “attain the objectives” in question. It thus goes beyond simply keeping them in mind. In the same context, he said that a member state’s margin of discretion on the implementation of a directive goes only to the means of achieving compliance with it, not as to the fact of compliance; see Ministere Public v Oscar Traen & Ors (Joined Cases 372-374/85 [1987] ECR I -2141, ECJ, paras 21 and 22; Commission v Italy [1999] I-7773, paras 4-5 and 64-93.

He suggested that it follows from that analysis of the relationship with local development plans, that, where there is conflict between a local development plan and Waste Strategy 2000, a proper application of section 54A and the Strategy would require a local planning authority to depart from the development plan.

In my view, the starting point is that, subject to the provisions of Articles 7 and 3, 4 and 5 of the Waste Framework Directive and the guidance now given in Braine-le-Chateau as to the provision by Article 7 waste management plans for location of waste disposal sites, member states are left with a margin of discretion as to their content at various levels. This margin of discretion may extend, not only to the detail of provision, but also to how prescriptive it is. Plans will vary, both according to their national, regional or local scale and, in the latter two cases particularly, differing constraints related to the area, existing provision, needs and competing demands for other use of land. It is against that varying backdrop, which militates against undue specificity and prescription that Article 8(b) requires measures to be taken in order that landfill permits and/or planning permission are “in line with” the plans. The European Court in Braine-le-Chateau, clearly had these considerations well in mind in the following passage in paragraph 30 of its judgment:

“… management plans cannot in all cases be the only factor which determines the exact location of waste disposal sites, inasmuch as the final decision in some circumstances depends on the relevant rules relating to land-use planning and, in particular, the consultation and decision-making procedures implemented pursuant to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment …, or Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control …”

Second, far from supporting the argument of Mr Wolfe that the objectives in Articles 3, 4 and 5, and that in Article 7 to prepare plans to attain those objectives, override all other considerations, including material planning considerations, the Court’s judgment in that passage expressly acknowledges the tying of permissions to the plan(s) through the planning control process. In so doing, it is of a piece with the scheme of the 1994 Regulations that I have described (see paragraph 24 above) which, in its implementation of the relevant provisions of the Waste Framework Directive, does so in the context of planning strategy and control, according to whether the issue is one of adequacy of plans or of compliance with them. If the European Court had considered that Article 8(b), as properly interpreted, simply trumped member states’ domestic planning systems into which, inevitably it fell to be considered and applied, it would not have so expressed itself. In my view, it removes the basis for Mr Wolfe’s argument that, to allow for some balancing of planning considerations alongside the requirements of the two Directives, would amount to construing the latter to meet our domestic law rather than the other way round.

Third, as I have said, the meaning of the words “in line with” in Article 8(b) cannot depend upon how it was made part of our law. And Article 8(b) does not specify the content of the measures to be taken for a landfill permit and/or planning permission” necessary to put them “in line with” the plans. The critical question, therefore, is what is meant by the provision’s use of those words. Braine-le-Chateau indicates, post Thornby,that Article 7 plans should, according to whether their reach is national, regional and local, locate, or provide criteria for location of, waste disposal sites. But it provides little, if any, guidance as to whether in any individual case, a proposal is “in line with” any relevant plan. The European Court, in paragraph 45 of its judgment in that case, referred to the Article 8(b) formula “in line with”, but it did so without elaboration. And, as I have noted, in doing so it seemingly referred to Article 8(b), when it clearly had in mind Article 8(a). The difference between them is important (see paragraphs 37 and 38 above). Article 8(a) imposes a clearly worded prohibition in relation to the grant of a landfill permit, that is, that it should not be issued unless the project “complies with all the relevant requirements of the Directive …” – note not with all the requirements of the plan(s). Article 8(b), which is in broader and more general terms, and applies to both landfill permits and planning permissions, requires steps to be taken in order that the project should be “in line with” the plan(s). It does not, as does Article 8(a) in relation to the Directive, forbid the grant of a permit or planning permission in the event of non-compliance with the plan(s). This, it seems to me, is another pointer away from Article 8(b) having the effect that compliance with the BPEO incorporated in Waste Strategy 2000 is a pre-condition of the grant of planning permission.

Fourth, the reasoning of Pill LJ in Thornby is another pointer away from such a conclusion. I say his “reasoning” – as distinct from the notion contended for by Mr Katkowski of it legally fixing the content of Article 8(b) when it also became part of our law through the medium of the 1994 Regulations. Although Pill LJ was not concerned with Article 7, but with Article 4 articulating the central obligation in the Directive to take necessary waste management measures to avoid endangering human health and without harm to the environment, the obligations created by the two provisions are inextricably connected. And that is so whether or not a member state has complied with its obligation to prepare the relevant Article 7 plan to attain that and other objectives. In the circumstances, the following passage from the judgment of the European Court in Ministere Public v Traen (Joined Cases 372-374/85) [1987] ECR 2141, at para 21, where, as it happens, there was no Article 7 plan, is of relevance to the issue in this case, as it was to Pill LJ’s reasoning in Thornby (see para 41):

“That provision [i.e. Article 4] does not … lay down any particular requirement restricting the freedom of the member states regarding the way in which they organise the supervision of the activities referred to therein. Their freedom must, however, be exercised having due regard to the objectives mentioned in the third preamble to the Directive and in article 4 thereof, namely the protection of human health and of the environment.” [my emphasis]

I should add that Pill LJ’s reasoning in Thornby, was drawn not only from paragraph 4, but also from the possibly incomplete wording of paragraph 2(1), of Schedule 4 to the 1994 Regulations (see paragraph 28 above), as the following passage from paragraph 54 of his judgment makes plain:

“… Paragraph 2(1) of Schedule 4 to the 1994 Regulations refers to discharging functions with the relevant objective, terminology which readily encompasses all relevant decisions. I do not consider that anything turns in these cases on the different form in which the obligation is stated in the Waste Framework Directive and in the 1994 Regulations.”

In my view, Pill LJ’s reasoning in paragraphs 53 and 64 of Thornby (see paragraphs … above] distinguishing between an obligation to “keep in mind” the Waste Framework Directive’s objectives and having regard also to material planning considerations is well-made, though necessarily somewhat imprecise. It gives the objectives of the Directive the status of important considerations, but not necessarily of overriding weight as against all other considerations in a waste planning permission application. In my view, that is much the same as the notion articulated in Article 8(b) that a proposal should be “in line with” those objectives, and as clearly intended, if not articulated, in paragraph 2(1) of Schedule 4 to the 1994 Regulations. Richards J, whose judgement in R v Leicestershire County Council, ex p Blackfordby & Boothorpe Action Group [2001] Env LR, 35, Pill LJ cited with approval in Thornby, recognised the practical need, even where strong imperatives for environmentally sensitive waste management are involved, to balance them against other and possibly weightier interests when making strategic planning and planning control decisions. This is how Richards J put it, at paragraph 48 of his judgment:

“…. Paragraph 2(1) of Schedule 4 to the 1994 Regulations does not use the language of taking the objectives into consideration. It requires that planning decisions be taken ‘with’ the relevant objectives. This may be contrasted with certain other statutory provisions which impose in terms an obligation ‘to have regard’ to specified objectives …. I have come to the conclusion, however, that there is no real distinction between those formulations. What matters is that the objectives should be taken into consideration (or had regard to) as objectives, as ends at which to aim. If a local planning authority understands their status as objectives and takes them into account as such when reaching its decision, then is seems to me that the authority can properly be said to have reached the decision ‘with’ those objectives. The decision does not cease to have been reached with those objectives merely be cause a large number of other considerations have also been taken into account in reaching the decision and some of those considerations militate against the achievement of the objectives.”

I agree with that reasoning of Richards J, which forms the backcloth for Pill LJ’s treatment of objectives and material planning considerations in this context. The exercise, as Mr Maurici put it in his submissions to the Court, is all a matter of weight. It could possibly be expressed as giving objectives “substantial” weight rather than treating them merely as material considerations, as Richards J, in paragraph 49 of his judgment considered - but did not decide. Or it could, as I have just suggested, be expressed as treating them as important considerations. One way or another, it can be said that that the added focus given by the Landfill Directive and BPEO policies in Waste Strategy 2000 to the environmental harm from landfill when compared with other forms of waste management calls for particular attention or weight to be given to the objectives of the Waste Framework Directive when considering an application for planning permission for a landfill proposal. However the attainment of those objectives cannot sensibly be the overriding factor, regardless of all the considerations material any individual decision, so as to be a pre-condition of the operation of a waste management plan and/or planning permission for a waste proposal. However, important such objectives are, the tilt towards their attainment may, as the European Court recognised in Braine-le-Chateau, be reversed by other and more powerful considerations. The machinery provided by section 54A and 70(2) of the 1990 Act allow for this contingency in appropriate circumstances and, in doing so, do not, in my view, violate either of the Directives.

Accordingly, I would uphold Derbyshire Waste’s case on the second issue, and hold that Article 8(b) of the Landfill Directive does not make it a pre-condition of the grant of planning permission for a landfill proposal that that it satisfies the policies of BPEO as incorporated in a waste management plan made pursuant to Article 7 of the Waste Framework Directive, such as Waste Strategy 2000.

There remains the question whether the Council’s consideration of the BPEO in the case was so flawed as to be unlawful in any event. On this question, Mr Katkowski sought to uphold the Council’s decision, and Mr Wolfe argued in favour of the Sullivan J’s rejection of it; Mr Maurici made no submissions on the issue on behalf of the Secretary of State.

As I have said, the Council, in its role as waste planning authority for Derbyshire, had not prepared a waste management strategy in conformity with the Waste Framework Directive as implemented by the 1994 Regulations nor any BPEO document that might have been part of such document if it existed. Nevertheless, as I have also said, the relevant obligations in that Directive and the Landfill Directive are not only applicable to the preparation by national and local waste authorities of strategic waste management plans, but also to the decisions made by local planning authorities, usually the same bodies, in their consideration of planning applications for waste projects on particular sites, including installations and landfill tips. Sullivan J correctly recognised, in paragraph 105 of his judgment that the national strategy, Waste Strategy 2000, including its BPEO components, should be taken into account in both plan making and development control.

However, Sullivan J went on to hold that the Council’s consideration of BPEO, as indicated mainly in the Council’s officers’ Report and Joint Report, was “seriously flawed”, and on that account unlawful, regardless of the interpretation to be given to Article 8(b) of the Landfill Directive and/or of the weight the law required it to attribute to the policies in Waste Strategy 2000. I shall return to the terms in which he so held, after summarising and setting out the Council’s Committee’s consideration of the matter as shown largely in the Report and Joint Report.

There are two overlapping questions as to the effect of BPEO in the circumstances of this case. The first is whether, notwithstanding the Council’s failure of its obligation under the Waste Framework Directive to prepare a waste management plan, it was required to consider, in its planning control capacity in determining Derbyshire Waste’s application for planning permission, what such a plan, pursuant to Waste Strategy 2000, should have contained, namely BPEO. Thus, the challenge is as to its planning control decision, not its failure to provide a waste management plan containing BPEO provisions. The answer to that challenge may depend on the obligations imposed by BPEO. These include their level of generality or otherwise and the extent to which a local planning authority exercising its planning control functions on a case by case basis could undertake the sort of analysis required for a BPEO exercise, bearing in mind the national, regional and cross-county considerations that may be relevant to the analysis. The second question, if the Council was required to consider BPEO, is whether, in the absence of a local waste management plan, it did so adequately, bearing in mind that Waste Strategy 2000 does not say that BPEO is a pre-condition of the grant of planning permission.

Whatever the law required of the Council in relation to the policies of BPEO, it clearly regarded them as relevant to its planning decision. For convenience of reference, I repeat the summary that I gave at the start of this Judgment of the Council’s Committee’s reasons, by reference to the Report and the Joint Report for granting permission: 1) the proposal would be unlikely to cause significant harm to the amenities of nearby residents; 2) there would be no shortage of landfill space in the County considered as a whole before 2010 if reduced waste production - about which there was some uncertainty - and landfill targets were achieved; 3) the proposal was not so large as to create a substantial excess capacity; 4) it would, in any event, assist in meeting disposal needs in the south-east of the County where an imminent shortfall of landfill space was expected; 5) the proposals were probably the only satisfactory way of achieving a sympathetic and worthwhile restoration of the site; and 6) the proposal accorded with the relevant development plan policies and national and regional policy and guidance and had taken into account other material considerations.

As to policy, although, as the Report indicated, the Council at that time had no strategic local waste plan, it had a non-statutory “Waste Management Strategy” produced in 1999, which, along with its structure plan, reflected national guidance in the form of BPEO. The structure plan, adopted in January 2001, also acknowledged the strategic principles set out in Waste Strategy 2000, and set out three criteria in its Waste Management Policy 1, which were set out and discussed in the Report, namely:

“Provision will be made for sufficient sites and facilities to cater for the waste management needs of Derbyshire, having regard to the national, regional and local strategies for waste management. Particular account will be taken of:

1)

the need to pursue objectives which further the aim of achieving sustainable waste management, such as to find the Best Practicable Environmental Option for individual waste streams;

2)

the aim of minimising the overall volume of waste going to landfill disposal and maximising the recovery of value from waste; and

3)

the location and technical suitability of sites.”

The Director expressed the view in the Report that the structure plan accorded with national, regional and local waste strategies. He identified and summarised in the Report the guidance that he had taken from, inter alia, the Landfill Directive and Waste Strategy 2000, including the incorporation in the latter of BPEO and its three key considerations: the Hierarchy Principle, the Proximity Principle and Self-sufficiency, and also PPG 10, containing similar policy guidance. In his assessment of the proposal against those and other national policies and guidance and other material considerations, he expressed in the following terms the view that it conformed with Waste Strategy 2000 and the three key considerations of BPEO:

“… Whilst the application site is particularly accessible from the north-east of the County, the site also has good connection to the M1 Motorway and A38 trunk route to serve the wider needs of Derbyshire and I am mindful of the imminent shortage of landfill space in the south-east of the county. Thus, I consider that land-filling at this site would be in accordance with the key considerations – Proximity Principle and Regional Self-Sufficiency and technically suitable for land-filling as proposed, thereby providing a Best Practicable Environmental Option for the disposal of waste with [criterion] 1 of … [Waste Management Policy 1 of the Structure Plan]”

He also concluded that it satisfied the other two criteria of need and suitable location respectively and, moreover, expressed the firm view that use of the site for landfill was the only way it which it could be satisfactorily restored.

The Director also considered the effect of the Thornby decision, correctly stating that the Court of Appeal in that case did not consider that there is an overriding obligation to further the objective in Article 4 of the Waste Framework Directive in any individual planning application, but that the local planning authority considering it should “have the objective in mind”.

As to the Committee’s conclusion, based on the Report, that the landfill proposal was the only satisfactory means of restoration of the site, the emphasis given by the Report in its general analysis and in its planning conclusions to that important and practical consideration should be noted:

“With respect to the Structure Plan Waste Disposal Policy 2: Waste as a Positive Resource, the proposal provides a means of reclaiming the last remaining area of dereliction at the former colliery. … I think it unlikely that other methods of reclaiming the site without importing waste, would produce a satisfactory result in landscape terms …”

“Notwithstanding the availability of alternative sites both currently, and which may become available in the north-east of the County within the Waste Management Plan period …, I consider that there are compelling reasons to accept the infilling/land raising/restoration of the site as submitted to restore the site satisfactorily and conserve and enhance its ecology thereby providing a significant benefit. I consider that there is no realistic likelihood of an appropriate restoration being achieved without the importation of waste in the manner proposed.”

Those sentiments were touched on orally in the Committee’s meeting, as the following part of the minutes records:

“Members, having considered the report and heard the comments made and explanations provided by the officers, generally considered that there were not any substantial planning grounds for refusal of the application. It was felt that the site was in need of improvement but that it would be unlikely to regenerate in a satisfactory manner on its own. An officer explained that satisfactory restoration without use of waste was a technical possibility but was not feasible except at great expense and that no such alternative scheme was likely to be promoted. …”

The Joint Report returned to the effect of BPEO and to the impact on its application of the Thornby decision in the following passage:

“The report to Committee of 11 March [i.e. the Report] explained the concept of BPEO (i.e. the option that provides the most benefits at the least damage to the environment as a whole, at acceptable costs, in the long term as well as the short term), and analysed it in the context of this proposal.

The challenge [i.e. Mr Blewett’s judicial review claim] essentially alleges that the Council’s treatment of BPEO … was insufficient. In particular, the level of detail that should be taken into account in determining a planning application, including the lack of identification of the specific BPEO for particular waste streams.

The Courts have held that in appropriate cases BPEO is an objective to which planning authorities should have regard as a material consideration. It is for local planning authorities to decide how much weight to attach to it. In this case the waste hierarchy and the proximity principle were considered and reference was made to the relevant Planning Policy guidance, Waste Strategy 2000, Regional Planning Guidance and the Derbyshire Waste Management Strategy. The ES [environmental statement] made reference to the applicant’s own waste management strategy and proposed recycling rates. In particular, the report identified the waste hierarchy, the proximity principle and self-sufficiency as considerations. It addressed the issues of the targets for reducing, re-using and recovering value from waste and the requirements for landfill capacity for the residual wastes. In the context of Structure Plan policies it identified the use of waste as a positive resource to reclaim this site”.

Sullivan J dealt quite shortly with these deliberations in paragraphs 107 and 108 of his judgment:

“107.

But the … [Council’s] consideration of BPEO was seriously flawed, regardless of the weight that should have been attributed to the policies in the strategy. Mr Evans [counsel for the Council] and Mr Barrett [counsel for Derbyshire Waste] pointed to a number of places in the Report where BPEO was mentioned. I accept that there are frequent references to BPEO in the Report, but merely repeating the acronym, however frequently, and whether or not accompanied by the Royal Commission’s definition, is not an adequate consideration of the issues raised by BPEO. If a material consideration is to be taken into account it must first be properly understood. What matters is not the letters BPEO, but the analysis of the issues raised by the concept: the application of the three key elements – the waste hierarchy, the proximity principle and self-sufficiency to the particular waste stream(s) which the development is intended to serve. So long as there was both a local (in the North-East Derbyshire Sub-Area) and county-wide shortage of capacity, it was relatively easy to see how the proximity principle might be met. It would appear that this must have been the assumption underlying the environmental statement, since it contained no discussion of BPEO whatsoever. However, once it had been concluded that there was capacity both locally and county-wide up to 2011, the question whether this particular application site would be the BPEO for meeting a shortage of landfill space in the south-east of the county had to be addressed in terms of the three key considerations, including the proximity principle. Beyond referring to the application site’s good road connections, and stating that the Director was ‘mindful of the imminent shortage of landfill space’ in the south-east of the county, the report did not address this issue at all. It may well be that this is why the Director did not feel able to conclude that the site was the BPEO in accordance with criterion 1 in the Waste Management Policy in the Structure Plan, merely that it was ‘a BPEO for the disposal of waste’.

“108.

I accept that officers’ reports should not be read in a legalistic or pedantic manner. If there had been a reasonable attempt to grapple with the issues raised by BPEO in the light of local spare landfill capacity and capacity county-wide for the structure plan period, the use of the indefinite rather than the definite article might have been of little consequence, and reference to it dismissed as mere pedantry. Its use in this Report is, in my judgment, a reflection of the … [Council’s] muddled approach to the BPEO issue. Unfortunately, the muddle was compounded, rather than clarified, by the advice given to members in the Joint Report as to the weight that they ought to give the BPEO. Given the importance attached to choosing the BPEO for a particular waste stream in Waste Strategy 2000, this was a significant flaw in the decision-making process.”.

In paragraph 110 of his judgment, the Judge added that “[i]n deciding whether waste disposal activities are justified a BPEO assessment is … a most material consideration”.

Mr Katkowski had three main criticisms of Sullivan J’s reasoning. First, he submitted that the absence of a local waste management plan effectively watered down the effect of the policy statements concerning BPEO in Waste Strategy 2000 on determination of individual planning applications to “something in between the aspiration expressed in the Strategy and the site and scheme specific details set out in an individual planning application”. He drew attention in particular to the provisions of Part 1, Chapter 4 of the Strategy, including in particular those that I have set out or summarised at paragraph 44 above, suggesting that they were of a piece with the general requirements of Article 7 of the Waste Framework Directive, namely concerned with BPEO at the strategic level, not apt for dealing with individual applications.

Second, and in the alternative, Mr Katkowski suggested that Sullivan J’s approach, in the passages that I have set out from paragraphs 107 and 108 of his judgment, was itself flawed since it appeared to be based on the incorrect notion that Waste Strategy 2000 contains a mandatory requirement for any landfill proposal that it must be the BPEO in order to obtain planning permission. He submitted that, on the contrary, the Strategy’s stated policies, including its guidance in relation to BPEO, are aspirational and fairly broad-brush; they do not descend to the level of detail that would make the grant of permission for a landfill proposal dependent on it being consistent or “in line with” the policies set out in the Strategy; and nowhere does the Strategy state that a landfill proposal can only be granted planning permission if it is the BPEO in the case in hand. He said that had either been intended it would have been spelt out in the document.

Third, Mr Katkowski submitted that, in any event, the Judge, in his remarks, does not do justice to the Council’s consideration of the concept of BPEO and its application to the circumstances of this case, as found in the Report and the Joint Report and the minutes of the Planning Committee’s meetings. He criticised the Judge for treating those reports and minutes as if they were pleadings, referring the Court to Levy v Environment Agency [2002] EWHC 1663, [2003] Env L.R. 11, per Silber J at para 119. He added that, in any event, if the Court is with him on the BPEO point the Judge was wrong to find the Council’s reasoning was seriously flawed, in particular in the Director of the Report‘s use of the indefinite article in the passage in the Report concluding that the proposal would provide “a Best Practicable Option for the disposal of waste” (see paragraph 101 above).

Mr Wolfe submitted that the Judge’s reasoning was the application of a very low threshold and correctly presupposed that a proper BPEO assessment is a necessary pre-condition of the analysis regardless of its status and precise route of its application.

I was initially taken with Mr Katkowski’s first submission that, in the absence of a local waste management plan, a local authority, when determining an application for planning permission for a waste proposal, could not be expected to make much of a fist of applying BPEO policies, and that its failure to do so should not be a ground for impugning its decision. It is undoubtedly the case that in the context of an individual planning application an authority would not normally have the same resources for a full and well informed evaluation that it would normally be expected to undertake in its waste planning capacity. That was very much the approach taken by Mr Thomas Forster, the waste management consultant of Derbyshire Waste, on whose evidence, in particular paragraph 4.2 of his witness statement, Mr Katkowski drew in support of his submission on this aspect. On the face of it, further support for that submission can be derived from various public documents giving guidance on the application of waste management policies at the planning application stage. For example, PPG 10, Planning and Waste Management, issued in October 1999, just a year before the publication of Waste Strategy 2000, did not suggest that each proposed waste disposal location should have its own individual BPEO assessment, stressing in paragraphs 3, 17 and 28 the regional derivation of the methodology for application at local level, and, in paragraphs 39 to 42 the variety of considerations and wide range of issues involved. And the Guidance on Policies for Waste Management Planning prepared for the DTLR in May 2002, makes the point, in paragraphs 4.6, 4.7 and 4.13, that it is difficult to demonstrate application of the BPEO methodology on a case by case basis.

These and other sources indicate the difficulty for a local authority considering a waste planning application to carry out what, for this purpose, I shall call “a full BPEO” evaluation. But there is nevertheless a strong case for concluding that local authorities which are confronted, when considering waste planning applications with BPEO considerations in the absence of a regional or local waste management plan, are required by law and can reasonably be expected to undertake some BPEO analysis.

First, as to the law, the Waste Framework Directive, in the obligations that it imposes on “competent authorities” in the exercise of their “specified functions” includes local waste planning authorities determining applications for waste planning permission (see paragraphs 24 and 25 above). A local waste planning authority cannot pray in aid its own failure to draw up a waste management plan as an excuse for failing to comply with the obligations cast upon it by the Directive. The same applies to the supplementary obligations imposed by the Landfill Directive in relation to waste management by way of landfill (see paragraph 41 above). True to those implemented obligations our national waste management plan in the form of Waste Strategy 2000 clearly calls for application of BPEO policies so far as practicable at the planning control stage as well as in strategic national, regional and local waste management planning (see paragraphs 45-47).

Second, as to the practicalities, that legal outcome is not unreasonable since planning applications in respect of waste are normally decided by waste planning authorities, as specifically provided by paragraphs 1 and 3 of Schedule 4 to the 1994 Regulations. Those authorities have knowledge of their respective areas’ waste policies, whether to be found in local waste management plans or in their general planning development plans. This is a feature that the draftsman of PPG 10 (pre- Landfill Directive and Waste Strategy 2000) had recognised in providing, in Annex A, paragraph A52, for BPEO to be considered on individual planning applications in respect of sites “not previously identified as having potential for waste management options”. From all of this, it is plain that Waste Strategy 2000 and the BPEO principles that it incorporates must, so far as practicable and identifiable in the circumstances of any individual case, be capable of application in the determination of applications for planning permission, whether or not there is a local waste management plan to which the planning authority can have recourse. I would, therefore, reject this argument of Mr Katkowski.

As to Mr Katkowski’s second criticism of Sullivan J’s reasoning, I do not consider that the Judge, when considering this issue in paragraphs 107 and 108 of his judgment, clung to any notion that Waste Strategy 2000 made it a pre-condition of planning permission that any landfill proposal must be the BPEO. To the extent that that may have been an accurate reflection of his view on Issue 2, he expressly discarded it in his opening sentence in paragraph 107. His two major points were, in paragraph 107, the inadequacy of the Council’s treatment, in its officers’ reports, of the BPEO waste hierarchy as applied to the factual circumstances attending the proposal, and, in paragraph 108, their advice that BPEO was simply a material consideration, the weight of which was for them. His “side-swipe” at the end of paragraph 107 about the use of the indefinite, instead of, the definite article when referring to BPEO was not necessary to either of those criticisms, as the first sentence of paragraph 108 of his judgment makes clear. In short, his criticism was that the Council, acting on the advice of its officers had not demonstrated that they had given sufficient importance or weight to the BPEO policies on the facts of the case, a criticism which, if tenable on the facts, cannot be described as seriously flawed as a matter of law or otherwise.

Mr Katkowski’s third submission that the Judge’s criticisms of the Council do not do justice to its consideration and application of BPEO policies in the circumstances of the case is a challenge to the Judge’s findings on the facts. In order for it to succeed in this Court it would be necessary to show that those criticisms, findings of secondary fact, are so ill-founded as to be perverse in the sense expressed by Lord Fraser in G v G (Minors: Custody Appeal) [1985] 1 WLR 647, at 652, so as “exceed .. the generous ambit within which a reasonable disagreement is possible”. Whilst another Judge might reasonably have taken a different view after reading the Reports to and minutes of the Council’s Committee’s meetings, I do not consider that that it could be said that this experienced planning Judge’s view approaches being perverse in the sense described by Lord Fraser. Accordingly, I can find nothing under this ground of appeal to justify the Court in disturbing Sullivan J’s ruling that, whatever the true state of the law as to the effect of Article 8(b) of the Landfill Directive on the Council’s obligations under the Waste Framework Directive, the Council’s reasoning on the application of BPEO to the circumstances of this application was so seriously flawed as render its decision unlawful.

The fourth question is whether the Judge, in the exercise of his discretion, should have refused relief in any event.

Mr Katkowski urged upon the Court that, if all his submissions thus far did not find favour with the Court, it should exercise its discretion not to quash the planning permission. Sullivan J, at paragraphs 109 and 110 of his judgment, rejected a similar submission made on behalf of Derbyshire Waste:

“The … [Council’s] failure to deal adequately with BPO, whether it is regarded as a breach of its obligation to ensure that the grant of planning permission was in line with Waste Strategy 2000, or whether it is viewed more simply as a failure to have regard to a material consideration, does not mean that the planning permission must be quashed. The court has a discretion and I have anxiously considered whether it would be right in all the circumstances to exercise that discretion, given the two-fold justification for the development in the environmental statement to reclaim a despoiled site and to facilitate the disposal of wastes arising in the area. It is clear from the Report and from the Minutes of the Meeting on 11^th March 2002 that the Director placed considerable weight upon the first justification: ‘there was no realistic likelihood of an appropriate restoration being achieved without the importation of waste in the manner proposed’. However, it was for members to determine the application. The minutes record that they ‘generally considered that there were not any substantial planning grounds for refusal of the application. It was felt that that the site was in need of improvement but that it would be unlikely to regenerate in a satisfactory manner on its own’.

110.

Given the manner in which BPEO was addressed in the Report and Joint Report it is not surprising that members concluded that there were no substantial planning grounds for refusing planning permission. Since there had been no proper BPEO analysis it is not possible to say whether there would or would not have been a substantial planning objection on this ground, for example because of failure to comply with the proximity principle. Thus it is simply not possible to tell what members’ attitudes might have been if there had been a proper analysis of the BPEO issue, including both the weight to be given to, and the content of, the policies relating to BPEO in Waste Strategy 2000. In particular, Waste Management Policy 2 in the Structure Plan gives preference to waste disposal proposals that assist in the reclamation of derelict or despoiled land, ‘where waste disposal activities are justified’ … In deciding whether waste disposal activities are justified a BPEO assessment is, for the reasons set out above, a most material consideration.”

Mr Katkowski submitted that, even if the reporting officers and the Committee had concluded, on what Sullivan J regarded as “a proper analysis”, that the proposal was not the BPEO, they could and would still have decided, on a proper reading of Thornby, that the impossibility of satisfactory restoration of the site without landfill was a material consideration of overriding significance in favour of the grant of permission.

Mr Wolfe suggests that this argument depends on a number of false premises; 1) that the Court concludes that, regardless of flaws in the Council’s analysis, it would have granted planning permission anyway, which is not sustainable on the evidence; 2) on the court accepting that Waste Strategy 2000 and the BPEO policies that it incorporates are “mere material considerations”; and 3) that the Court has a discretion to excuse non-compliance with a Directive, which it has not, since Article 10 of the EU Treaty puts the Court itself under an obligation to take all necessary measures to secure compliance with a Directive, thus precluding the exercise of such discretion.

In my view, this is not an appropriate case for the Court to take a different view from Sullivan J as to the exercise of discretion. For the Court to do so would amount to a consideration of the planning merits, an exercise that it should not undertake. There is also force in the various submissions of Mr Wolfe. It is impossible to say whether the Council would have taken the same decision if it had sensed the greater importance or weight that it should now give to the BPEO hierarchy that puts landfill at the bottom of the list of waste management options. And the following words of Lord Hoffmann in Berkeley v. SSE [2001] AC 603, at 616, with whom the other Law Lords agreed, militate against the retrospective dispensation of an obligation under a Directive in that way:

“A court is … not entitled retrospectively to dispense with the requirement of an EIA [environmental impact assessment introduced to implement a Directive] on the ground that the outcome would have been the same or that the local planning authority or the Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues. … It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found to be ultra vires: see Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P & CR 343, 353. ….”

Accordingly, I would dismiss the appeal.

I agree.

I also agree.