Company applying for planning permission for waste disposal system – Council granting permission – Whether council failed to address questions relating to air emissions – Whether council failed to discharge duties under EC directive – Whether council failed to consider best practical environmental option – Application for judicial review of decision dismissed
The Manchester Waste Co Ltd (the company) was a local authority waste company created pursuant to Part II of the Environmental Protection Act 1990. Its sole shareholder was the Greater Manchester Waste Disposal Authority (WDA) which, in accordance with the 1990 Act, transferred to the company its waste disposal undertaking. The company was accordingly responsible for the handling and management of all municipal waste in the WDA’s area including the areas of the respondent council. An incinerator used by the company ceased in operation as a result of European directives. A planning application was submitted to the council in December 1996 for “installation of a waste recovery system and replacement of the flue gas cleaning equipment with associated storage tanks and external pipe network”. Following public consultation planning permission was granted on May 30 1997 by the planning control subcommittee of the council. The applicant, a member of the local resident’s association, sought judicial review of the council’s decision. It was submitted that the council, first, had failed to address questions relating to air emissions but had instead left those to the Environmental Agency (the agency), second, had failed to discharge their duty under article 4 of the European Waste Directive Framework Directive (91/156/EEC) as applied by Schedule 4 to the Waste Management Licensing Regulations 1994 and, third, had failed to address the question as to whether the proposal for incineration of waste represented the “best practical environmental option” (BPEO).
Held The application was dimissed.
1. There was nothing to suggest the agency had not been entitled to indicate that it had no objection to the proposal and that available technology would not be able to ensure that the processes satisfied the requirements of the UK and the EU legislation. The council had been entitled to take the view that concerns about emissions could be property dealt with by the agency.
2. There was nothing in the wording of article 3 of Directive 75/442/EEC which suggested that priority should be given to recycling over recovery of energy because they were treated as alternatives in the directive. Therefore the council had neither failed in their duty to consider and address to what extent the proposals represented the BPEO.
3. There was no statutory or policy requirement for the planning authority to carry out a BPEO exercise in every case and a statement in the council’s draft plan could not be taken as creating a binding legal commitment. However a BPEO was capable of being material consideration in law and the council had recognised it as such and therefore their conclusion was reasonable and lawful.
Charles George QC and Michael Fordham (instructed by Tyndallwoods, of Birmingham) appeared for the applicant; Stephen Sauvain QC (instructed by the solicitor to Bolton Metropolitan Borough Council) appeared for the council; James Goudie QC and James Cameron (instructed by Keogh Ritson, of Bolton) appeared for Greater Manchester Waste Ltd as intervenor.
