Waste disposal — Authorisation — BATNEEC — Respondent council granting authorisation for waste disposal conditional upon emissions not exceeding limits in planning guidance — Appellant challenging grant — Whether council achieving BATNEEC — Whether council fulfilling objective of avoiding harm to human health or environment — Article 4 of Council Directive 75/442/EEC — Paragraph 4 of Schedule 4 to Waste Management Licensing Regulations 1994 — Section 7(1) and 7(2) of Environmental Protection Act 1990 — Appeal dismissed
The respondent council had to consider an application by a company, TRI, for an authorisation, pursuant to Part I of the Environmental Protection Act 1990, for the disposal of animal carcasses by incineration. By section 7(1) of the 1990 Act, an authorisation was to contain such specific conditions as the enforcing authority considered appropriate for achieving the objective set out in section 7(2), namely that of ensuring that the “best available techniques not entailing excessive costs” (BATNEEC) were used for preventing the release of prescribed substances, or, where that was not practicable, for reducing the release of such substances to a minimum. Paragraph 4 of Schedule 4 to the Waste Management Licensing Regulations 1994, enacted to give effect to the requirements of Council Directive 75/442/EEC (the directive), provided that, in exercising their functions, authorities were to pursue the objective of ensuring that waste was recovered, or disposed of, without endangering human health and without using processes or methods that could harm the environment.
The council obtained a consultant’s report that indicated that the emission of prescribed substances could not be completely prevented. They concluded that it was appropriate to grant the authorisation on the condition that emissions did not exceed the limits set out in PG 5/3(95). The incinerators were capable of operating at lower emission levels than those permitted by PG 5/3.
The appellant applied for judicial review of the decision to grant the authorisation. It contended that the council had failed in their duty to prevent the release of prescribed substances, or to keep that release to a minimum, and had, accordingly, failed to give effect to the requirements of para 4 of Schedule 4 to the 1994 Regulations and Article 4 of the directive. The judge dismissed that claim, and the appellant appealed.
Held: The appeal was dismissed.
1. The council were not in breach of their duty by failing to prevent the release of prescribed substances under section 7(2)(a)(i) of the 1990 Act. Having obtained a consultant’s report, they had been entitled to make the assumption, on the basis of that report, that the release of prescribed substances could not be prevented.
2. In adopting the emission limits set out in PG 5/3, the council had not ensured that BATNEEC was applied to reduce the release to a minimum. The upper limit in the guidance was not necessarily the best that could be achieved. The objective in Article 4 of the directive and in the 1994 Regulations, and the obligation in section 7(2) of the 1990 Act to use BATNEEC, would not always be met by specifying the highest emission permitted by the guidance. The enforcing authority had to address themselves to the best available technique. That did not necessarily require worldwide inquiries as to available equipment and techniques, and consideration had to be given to the limited resources available. In the instant case, given that it was not disputed that the incinerators were capable of lower emission levels than those set out in the guidance, a failure to insist upon those lower levels amounted to a failure to achieve BATNEEC. Despite that, it was not necessary to make an order quashing the authorisation, since the council were under a statutory duty, by reason of section 6(6) of the 1990 Act, to conduct a review of the conditions attached to it, by September 2002 at the latest.
*Editor’s note: this case was heard jointly with R (on the application of Murray) v Derbyshire County Council [2002] 05 EG 131 (CS).
David Wolfe (instructed by Public Interest Lawyers, of Birmingham) appeared for the appellant; Stephen Hockman QC and Peter Harrison (instructed by the John Hughes Law Practice, of Birmingham) appeared for the respondents.
Sally Dobson, barrister
