Waste disposal — Planning permission — Effect upon environment — Respondent council granting planning permission for landfill after finding benefits outweighing adverse environmental effects — Appellant challenging grant — 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 — Appeal dismissed
The respondent council had to determine an application by F Ltd for planning permission to extend a waste-disposal site used for landfill. They found that there was no overriding need for the proposed extension, but granted permission on the basis that its adverse environmental effects would be outweighed by the benefits that it would bring.
The appellant applied for judicial review of that decision. He contended that granting permission for a polluting landfill that was not needed, in circumstances where landfill was the waste-disposal method of last resort under the waste-management hierarchy adopted by EC countries, was a breach of the council’s duty to give effect to the objective set out in para 4 of Schedule 4 to the Waste Management Licensing Regulations 1994 and Article 4 of Council Directive 75/442/EEC (the directive). The objective was that 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 judge dismissed the claim, and the appellant appealed.
Held: The appeal was dismissed.
1. The objective in Article 4 of the directive was binding upon the council. It was a goal that had always to be kept in mind when making a decision, and its status was higher than a material consideration, since a material consideration was simply one factor to be taken into account when making a decision. However, on occasions, the giving of weight to other considerations might mean that little progress would be made towards achieving an objective. Provided that the objective was kept in mind, a decision could still be lawful even if the achievement of that objective had not been the decisive consideration: R v Bolton Metropolitan Borough Council, ex parte Kirkman [1998] JPL 787 applied. The objective in Article 4 was not an overriding one, and the council were permitted to take a broader view than merely to ask which of two possible outcomes contributed more to the objective.
2. Proceeding on that basis, the existence of the Article 4 objective did not render the council’s decision unlawful. The council had been entitled to grant planning permission after weighing up all material considerations and concluding that the benefits of the proposal outweighed its adverse effects. Neither Article 4 nor the 1994 Regulations required planning permission to be refused simply because there was no immediate need for the land, or because the relevant decision made no positive contribution towards meeting the objective.
*Editor’s note: This case was heard jointly with R (on the application of Thornby Farms Ltd) v Daventry District Council [2002] 05 EG 132 (CS).
David Wolfe (instructed by Public Interest Lawyers, of Birmingham) appeared for the appellant; Alan Evans (instructed by the solicitor to Derbyshire County Council) appeared for the respondents.
Sally Dobson, barrister
