Ardley Against Incineration v Secretary of State for Communities and Local Government [2011] EWHC 2230 (Admin)

Case No CO/2905/2011[2011] EWHC 2230 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 8 July 2011
Strand
London WC2A 2LL
B e f o r e:
JOHN HOWELL QC
(Sitting as a Deputy High Court Judge)
Between
ARDLEY AGAINST INCINERATIONClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantVIRIDOR WASTE MANAGEMENT LIMITEDInterested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR D WOLFE (instructed by Public Interest Lawyers) appeared for ClaimantMR D KOLINSKY (instructed by Treasury Solicitors) appeared for DefendantMR D ELVIN QC (instructed by Bevan Brittan) appeared for Interested Party
J U D G M E N T
[1]THE DEPUTY JUDGE: This is an application under section 288 of the Town and Country Planning Act 1990 by an unincorporated association, Ardley Against Incineration. The Claimants seek an order quashing the Secretary of State's decision granting Viridor Waste Management Limited ("Viridor") conditional planning permission to construct and to operate an energy for waste ("EfW") facility at theArdley landfill site in Oxfordshire.[2]The Claimants contend that the Secretary of State erred in law when dealing with local concerns about air quality having regard to their contention that an EfW facility of the capacity proposed was not needed in this location. Their contentions have been put forward in a number of different ways in their claim form, in the skeleton arguments submitted by Mr David Wolfe (who appeared on their behalf) and in his oral submissions. In summary form, however, the Claimants contend the Secretary of State erred in law in three main respects.(i) First they allege that the Secretary of State erred in treating local residents' concerns about the effects of airborne emissions from the proposed EFW facility as not being planning matters, but rather as being matters to be dealt with by the Environment Agency when that agency was deciding how to exercise its powers under the Environmental Permitting (England and Wales) Regulations 2010 ("the 2010 Regulations").(ii) Secondly, the Claimants allege that the Secretary of State erred in assuming that, if the Environment Agency was satisfied with the technology to be used in, and with the emissions from, the EfW facility proposed, its impact on air quality and health would be insignificant and acceptable. They contend that the Environment Agency simply focuses on the operation of the plant as specified and as located at Ardley without considering whether there should a plant of the size proposed and whether it should be in this location.(iii) Thirdly, in relation to air pollution resulting from traffic generated by the proposed development, the Claimants contend that the Secretary of State merely satisfied himself that certain standards would be met. These errors meant, so the Claimants contend, that the Secretary of State failed to comply with his obligations under paragraph 1(1) of part 2 of schedule 25 to the 2010 Regulations. THE 2010 REGULATIONS AND THE WASTE FRAMEWORK DIRECTIVES[3]The 2010 Regulations are mainly concerned with the imposition of a scheme requiring "regulated facilities" to have, and to operate in accordance with, an environmental permit. Such "regulated facilities" include (unless they are exempt or excluded) places where potentially polluting activities, such as waste recovery and disposal, are carried on. The regulator under the regime for environmental permits is either the Environment Agency or the local authority depending on the type of facility involved. The regulator for the EfW facility proposed is the Environment Agency.[4]The 2010 Regulations also deal with some aspects of the inter-relationship between the planning regime and the regime for environmental permits and they transpose the requirements of certain European directives into domestic law.[5]At the time of the Secretary of State's decision, paragraph 1(1) of Part 2 of Schedule 25 to the 2010 Regulations provided that:
"Every authority must exercise its specified functions in relation to every waste operation ... for the purpose of implementing article 4 of the Waste Framework Directive."
[6]When he determined Viridor's planning appeal under section 78 of the Town and Country Planning Act 1990, for the purposes of this provision, the Secretary of State was exercising a specified function in his capacity as a planning authority. The use of waste principally as a fuel or as other means to generate energy was a waste operation. Prima facie therefore, the Secretary of State was required (by virtue of paragraph 1(1)) to exercise his powers when determining the appeal:
"for the purposes of implementing article 4 of the Waste Framework Directive."
[7]Paragraph 4(1) of that Part of that Schedule also provided, however, that:
"Nothing in paragraph 1 ... of this Part requires a planning authority to deal with the matter which an appropriate authority or a regulator has power to deal with."
[8]The Secretary of State and Welsh ministers are appropriate authorities when not discharging their planning functions. When discharging other specified functions in relation to waste operations, they were required to exercise them for the purposes of implementing article 4 by virtue of paragraph 1 to which I have referred. More significantly for present purposes however, regulators (who are the persons responsible for environmental permits) such as the Environment Agency were also required to exercise their relevant functions for the same purpose by virtue of paragraph 4 of Schedule 9 to the 2010 regulations.[9]Paragraph 4(1) did not preclude a planning authority such as the Secretary of State from exercising his functions in relation to a particular matter for the purpose of implementing article 4. Planning authorities were given a discretion not to do so by that provision when an appropriate authority or regulator had the power to deal with that matter. That was no doubt because, as I have mentioned, both of those other types of authorities were subject to the same duty and it might be more convenient or appropriate to leave a particular matter to be dealt with by them so as to secure compliance with the result that article 4 of the Waste Framework Directive required Member States to achieve.[10]The Waste Framework Directive as defined in the 2010 Regulations at the time of the decision was Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste ("the 2006 Directive"). Article 4.1 of the 2006 Directive provided that: "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 whichcould harm the environment and in particular:(a) Without risk to water, air or soil or to plants or animals;(b) Without causing a nuisance, noise or odours;(c) Without adversely affecting the countryside or places of special interest.[11]This provision was identical to the first paragraph of article 4 in an earlier waste directive, Council Directive 75/442 EEC on waste as amended ("the 1975 Directive"). The 2006 Directive re-enacted the 1975 with minor changes. The Grand Chamber of the Court of Justice considered the nature of article 4 and its significance in the context of the 1975 directive in Case C-494/01 EC v Ireland [2005] ECR 1-3331. It stated that:
"165. It is to be remembered that the obligation to dispose waste without endangering human health and without harming the environment forms part of the very objectives of Community environmental policy and that article 4 of the directive is intended in particular to implement the principle that preventive action should be taken contained in the second sentence of the first sub paragraph of article 174(2) EC by virtue of which it is for the Community and Member States to prevent, reduce and, insofar as is possible, eliminate from the outset the sources of pollution or nuisance by adopting measures for nature such as to eliminate recognised risks ... 166. First, article 4 of the Directive sets out various objectives which Member States must observe in their performance of the more specific obligations imposed on them by other provisions of the Directive... 167. According to the very wording of the first paragraph of article 9(1) of the Directive and article, 10 thereof, it isinter alia for the purposes of implementing' article 4 that any establishment or undertaking which carries out waste disposal operations or waste recovery operations must obtain a permit... This phrase means that the implementation of article 4 is meant to be achieved in particular by issuing individual permits... 168. Second, even though the first paragraph of article 4 of the Directive does not specify the actual content of the measures to be taken in order to ensure that waste is disposed of without endangering human health and without it harming the environment, that provision, which contains obligations independent of those arising from the other provisions of the Directive, is nonetheless binding on the Member States as to the objective to be achieved, while leaving to them a margin of discretion in assessing the need for such measures... 169. While it is true that it is, in principle, not possible to draw the direct inference from the fact that a situation is not in conformity with the objectives laid down in the first paragraph of article 4 of the Directive, that the Member State concerned has necessarily failed to fulfil the obligations under that provision, namely to take the requisite measures to ensure that waste is disposed of without endangering human health and without harming the environment, it is nevertheless undisputed that if that situation persists, in particular if it leads to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities, that may indicate that member stateshave exceeded the discretion conferred on by that provision."
The court also stated in paragraph [118] that:
"the permit systems referred to in articles 9 and 10 of the Directive are intended, as is apparent from the very wording of those provisions, to enable article 4 of the directive to be implemented correctly, in particular by ensuring that disposal and recovery operations carried out under such permits comply with the various requirements set by article 4."
[12]The 2006 Directive was repealed from effect from 12 September 2010 by Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives ("the 2008 Directive"). Member States were required to bring into force the provisions necessary to comply with the 2008 Directive by 12 December 2010. In addition to giving effect to the repeal of the 2006 Directive by that date, Member States were also required to give effect to the other provisions of the 2008 Directive. The 2008 Directive involves a number of substantial changes to the European framework for dealing with waste. It did include, however, in article 13 a provision which in effect replaced article 4.1 of the 2006 Directive with some amendments. Article 13 provides that:
"Member states shall take the necessary measures to ensure that waste management is carried out without endangering human health, without harming the environment and, in particular; (a) without risk to water, air, soil, plants or animals. (b) without causing a nuisance through noise or odours and; (c) without adversely affecting the countryside or places of special interest."
[13]The main changes introduced by article 13 were to extend the ostensible scope of the obligations imposed on Member States in two related respects. First, article 13 is expressed to apply to waste management, not merely to the recovery or disposal of waste. Waste management comprises the collection, transport, recovery and disposal of waste (including the supervision of such operations and the aftercare of disposal sites and including actions taken as a dealer or broker). Secondly, article 13 is concerned with any means by which such waste management could harm the environment, not merely with whether the processes or methods used in the recovery or disposal of waste could do so. However, the basic obligation remains the same in article 13 of the 2008 Directive as it did in Article 4 of the 2006 Directive, although its scope was ostensibly extended.[14]It appears that domestic effect was not given to the changes required by the 2008 Directive by 12 December 2010 as required. They were only given effect subsequently, after the decision impugned in this case, by the Waste (England and Wales) Regulations 2011 on 29 March 2011. I shall need to consider what significance that may have for this application later. THE ISSUES[15]In my judgment, four main issues arise on this application:(1) What did the requirement to exercise a function for the purpose of implementing article 4 of the 2006 Directive involve?(2) Did the replacement of article 4 of the 2006 Directive by article 13 of the 2008 Directive have any significance for the purposes of this case?(3) Did the Secretary of State decide not to exercise his planning functions for the purpose of implementing article 4 of the 2006 Directive in respect of any particular matter with which the Environment Agency had power to deal?(4) If he did, did he err in doing so or did he fail to comply with the requirement to exercise his powers for that purpose in connection with any matters that he did not leave to the Environment Agency to deal with? BACKGROUND[16]Viridor submitted its application for planning permission for the construction and operation of an EfW facility on 16 October 2008. The application related to a 95 hectare site in the countryside one kilometer south of the village of Ardley in Oxfordshire. The application site included an existing civic amenity site and a former mineral working which has planning permission to be developed as a landfill. The EfW facility is proposed to be located at the south-eastern corner of the application site within the approved landfill area. It will be a large building: 229 metres long, between 38 metres to 70 metres wide; and between 29 metres to 70 metres in height to the apex of the main roof. The top of the chimney stack will be 82 metres above platform level. The EfW facility is designed to be capable of dealing with 300,000 tonnes of residual municipal commercial and industrial waste per annum. The proposed development also includes other matters, such as an incinerator bottom ash ("IBA") facility to deal with the 75,000 tonnes per annum of IBA produced by the EfW facility.[17]The planning application was accompanied by an environmental statement. The application was amended and further supporting documents were submitted before it was refused by the Oxfordshire County Council on 26 October 2009.[18]The appeal against that refusal was determined by the Secretary of State because it was considered that the proposals were for a development of major importance having more than local significance. The Secretary of State appointed an inspector, Mr A Mead, to conduct an inquiry and to report to him on the appeal. The Inquiry opened on 6 July 2010 and sat for thirteen days. At the Inquiry, the Claimants were represented by Mr J O'Neill. The Inspector, Mr Mead, was assisted at the Inquiry and in completing his report by another Inspector, Ms E Ord, who in the event supported his conclusions and recommendations.[19]Before the Inspector submitted his report to the Secretary of State, however, on 29 September 2010, the Environment Agency issued Viridor with an environmental permit authorising the incineration of non-hazardous waste in the EfW facility proposed. In the determination explaining its decision to do so, the Agency set out how it had addressed the requirementsof the various legislative provisions applicable to it. These included the requirement to exercise its functions for the purpose of ensuring that waste was recovered or disposed of as article 4 of the 2006 Directive stipulated. It stated that:
"The conditions of the permit protect the environment and ensure there is no harm to any of the features which are identified in article 4."
[20]It also stated that the potential emissions to air had been assessed against the relevant statutory and non-statutory environmental assessment levels for air quality. These levels, it was said, "had been established specifically in order to protect human health and the environment. The air quality assessment concluded that the potential emissions from the proposed facility will not result in theexceedence of any of the assessed air quality standards or contribute significantly to the environmental concentration of a substance that it is at risk of breaching a relevant standard taking into account existing background concentrations."[21]The Inspector in his report ("IR") on 14 October 2010 recommended that planning permission should be given for the development proposed subject to certain conditions.[22]In a letter dated 15 December 2010 ("DL1"), it was stated that the Secretary of State agreed with his Inspector's conclusions for the reasons given in that letter and that he was minded to agree with his recommendation subject to consideration of the need for additional planning conditions. The Secretary of State's decision was deferred to allow representations to be made on that matter. In a further letter dated 17 February 2011 ("DL2"), the Secretary of State granted conditional planning permission for the development proposed. It is that decision which is impugned by the Claimants.[23]In IR 16.12, the Inspector identified what he considered to be the main considerations in determining the appeal. These were:
"(i) The effects of the proposal on local residents, and (ii) The impact of the scheme on the countryside, weighed against (iii) The need for the proposed waste management facility and other benefits."
[24]One of the effects on local residents which the Inspector addressed was air quality. This was a concern of local residents appearing at the Inquiry. The Inspector's conclusions in his report on that issue were as follows:
"16.23 Concerns have been raised by the Parish councils and others about the potential adverse effects of emissions from the stacks on air quality. Objections have been made to the possible breach of air quality standards for various substances, and elevated levels of CO2 from both the EfW plant and associated road haulage, hence contributing to global warming. Dust from stockpiles of IBA and from HGVs is also and issue, as is the possibility of pollution impacting on recreational activities... "16.24 Furthermore, local residents have expressed a fear that emissions to air quality could affect human health and that of animals and fish. They are concerned that there is a dearth of information comparing the health of upwind populations with those downwind of incinerators, and that scientific knowledge is incomplete. They are worried that the smallest emitted particles would not be captured or adequately monitored and measured, and that furans and dioxins would escape to atmosphere. As local land is used for the production of food for human consumption and for animal feed, there is a fear that contaminants would settle on crops and would be ingested. As well asbioaccumulation, it is believed by some that this could affect local farmers' businesses... "16.25 The appellant's assessment demonstrates that there would only be a small increasein ambient concentrations of airborne pollutants, which would be insignificant, and that traffic emissions would be within acceptable limits. There is little technical data before me to challenge this evidence or to support any of the other above mentioned objections. OCC [Oxfordshire County Council] agrees that pollutants and dust from the EfW plant and associated vehicles would be negligible, and NE [Natural England] is satisfied that there would be no significant effects on relevant sites of conservation interest. There are no objections on air quality, pollution or related health grounds from OCC, CDC [Cherwell District Council], NE the Food Standards Agency (FSA), the Health Protection Agency (HPA) or the Environment Agency (EA). In fact most of these third party concerns are not planning matters and, therefore, should be directed to the pollution control authorities as indicated in the Companion Guide toPPS10 (para 8.5). In this case, the relevant authority, being the EA, appears satisfied that the technology used to control emissions is best available techniques (BAT). A Continuous Emission Monitoring System Permit (EP), a draft of which has already been issued. For these reasons I take the view that, in relation to land use planning, the proposal's impacts on air quality and health would be insignificant and acceptable..."
[25]In relation to the need for the EfW facility the Inspector stated that:
"16.77 OCC accepted that overall, there would be a minimum need at 2020 for treatment capacity of 237,400 tpa. This is broadly consistent with the claim fromby BPC that the appeal scheme has a capacity 20-25 per cent greater than what is required. However, OCC also accepted that it should send as much waste as it could, consistent with environmental protection, to treatment, not only the minimum. Therefore, OCC recognised that there is an overall need for treatment capacity for Oxfordshire's MSW and C&I waste which exceeds the 300,000 tpa capacity of the EfW facility and bearing in mind its overall expertise in dealing with waste planning I support OCC's view... 16.81 In my opinion, the whole thrust of the LD [Landfill Directive] and subsequent advice is to drive waste up the hierarchy away from landfill, particularly as the LD explicitly encourages the prevention, recycling and recovery of waste and use of recovered materials and energy so as to safeguard natural resources and obviate the wasteful use of land. Therefore, I do not accept that the need for the proposed facility is in any way reduced merely because the minimum treatment capacity would be exceeded by the margin suggested in this case. I conclude that the scheme would meet a significant need for a waste management facility which would provide for dealing with all the residual MSW from Oxfordshire and a substantial proportion of the C&I waste for the county."
[26]The Inspector also identified other benefits which in his view the scheme would bring in IR 16.82 to 16.88.[27]When considering the planning balance overall, the Inspector reached the following conclusions:
"16.89 …overall, OCC accepts that there is a need for waste management capacity to deal with at least 237,400 tpa of MSW and C&I waste of which, it agreed with the appellant, 135,800t of residual MSW from Oxfordshire would be available for treatment in 2020. Given the broad assumptions on which future needs are estimated, although this would be less than the 300,000 tpa design capacity of the proposed facility, I do not perceive the difference to be very significant. It would seem prudent to provide for excess capacity rather than a possible shortfall, especially as the Companion Guide to PPS10 (para 4.14) advises that suggestions of undue precision should be avoided. 16.90 So far as alternative locations for a waste management facility within Oxfordshire are concerned, no suggestions were made by OCC of CDC that another site would perform better against the criteria in PPS10. CDC and AwFPC criticised the Alternatives Assessment exercise prepared on behalf of OCC. However, even if the Assessment had been more sophisticated, such as with a numerical scoring system, it is unlikely there would have been a greater selection of sites, or a more favoured location. I agree that the Assessment methodology was right to exclude sites in the Green Belt (GB). Very special circumstances would be very difficult to justify in the face of alternatives not in the GB. Therefore I accept that the judgments made by the appellant and the reasoning behind them are sound. 16.91 There would be no significant harm to local residents due to traffic, air quality, hydrology or any other effects. In relation to therural character of the landscape and the visual impact, significant adverse effects are limited to some near views from the south and east. However, taking account of the existing landscape condition and mitigating factors, the harm to the area as a whole would be insignificant. There would be no significant impact on cultural heritage or nature conservation interests. 16.92 The development would be contrary toCLP Policy 8. The CLP is part of the DP, but it was adopted in 1996 and so now significantly predates PPS1, PPS7 and PPS10. The aims for the protection of the countryside from unnecessary development remain extant, but the proposal would satisfy the locational criteria and key planning objectives outlined in PPS10. 16.93 The scheme would assist in driving waste management up the waste hierarchy away from disposal by landfill. It would help to implement the national waste strategy. It would help to secure the management of waste without endangering human health and without harming the environment. It would enable Oxfordshire to take more responsibility for its own waste and enable timely provision of a facility to cater for a need which becomes more pressing by the year. It would also create a significant amount of energy, equivalent to about 24 per cent of Cherwell District's electricity needs. Overall Conclusion: 16.94 In summary I conclude the pressing need for the waste management facility, together with the additional benefits outlined above, are material considerations of sufficient weight to overcome the conflict with CLP Policy 8. Therefore, I shall recommend that the appeal should be allowed subject to conditions discussed in section 15."
[28]In DL1 it was stated (at [17]) when considering the effects on local residents, that:
"The Secretary of State agrees with the inspector's reasoning and conclusions would respectfully impact the appeal site on air quality as set out at IR 16.23-16.25. This had regard to the fact there were no objections on air quality, pollution or related health grounds from Cherwell District Council, Natural England, the Food Standards Agency, the Health Protection Agency or the Environment Agency (IR 16.25). He agrees that the proposals impacts on air quality on health would be insignificant and acceptable."
[29]In relation to the need for the EfW facility, it was stated in that letter (DL1[24]) that:
"The Secretary of State agrees with the inspector's reasoning and conclusions on the need for the facility as set out at IR 16.73-16.81. He has taken account of the fact that the council recognised there is an overall need fortreatment capacity for Oxfordshire's municipal solid waste (MSW) and commercial and industrialC&I waste which exceeds300,000 tpa capacity of the proposed EfW facility (IR 16.77). He agrees with the inspector's conclusion that the scheme would meet his significant need for a wast management facility which would provide for dealing with all residualMSW for Oxfordshire and a substantial proportion of the C&I waste from the county (IR 16.81). He places significant weight on this conclusion."
[30]It was stated in the letter (at DL1[25]) and (DL1 [30]) that the Secretary of State agreed with his Inspector's assessment of the other benefits of the scheme and with his assessment of the planning balance in IR 16.89 to 16.93. At DL1 [30], it was also stated that it has been concluded there was a "pressing need for the waste management facility proposed." ISSUE 1: WHAT DID THE REQUIREMENT TO EXERCISE A FUNCTION FOR THE PURPOSE OF IMPLEMENTING ARTICLE 4 OF THE 2006 DIRECTIVE INVOLVE?[31]As I have mentioned, when discharging his planning function in respect of the proposed EfW facility, the Secretary of State is prima facie required to exercise that function, "for the purpose of implementing article 4 of" the 2006 Directive. The Environment Agency when acting as a regulator in respect of that facility is also required to exercise its functions for that purpose.[32]Mr Wolfe submitted that it is not sufficient to comply with those requirements to treat the matters referred to in article 4 merely as an objective at which an authority should aim but against whose achievement other material considerations may militate. He submitted that the decision of the Court of Appeal in Thornby Farms v Daventry Council[2003] QB 503 ("Thornby Farms") and of Irwin Jin Residents Against Waste Site Limited v Lancashire County Council [2008] Env LR27 should not be followed in relation to the current statutory scheme.[33]Those decisions were decisions on the requirement imposed by paragraph 2(1) of schedule 4 to the Waste Management Licensing Regulations 1994. That sub-paragraph provided that:
"The competent authority shall discharge their specified functions insofar as they relate to the recovery or disposal of waste with the relevant objectives."
The "relevant objectives" in relation to the disposal or recovery of waste were expressed in terms of ensuring that waste was recovered or disposed of as article 4 of the 1975 Directive required. As I have explained, article 4.1 of the 2006 Directive replicated the relevant part of article 4 of the 1975 Directive when the 2006 Directive replaced the 1975 Directive. Accordingly, the only relevant difference in the wording of the applicable provisions is in the domestic legislation. Whereas an authority had previously under that legislation to discharge its functions "with the relevant objectives" of ensuring that waste is recovered or disposed of as article 4 required, it must now exercise its functions "for the purposes of implementing" that article.[34]Mr Wolfe contended that this change of wording materially altered an authority's obligations. He submitted that the correct construction of article 4 of the 2006 Directive is that it gave Member States a discretion as the means of securing what article 4 required (namely ensuring that human health was not endangered and the environment was not harmed) but, so he submitted, Member States were given no discretion not to seek to achieve it. Article 4 required the avoidance of processes or methods that could endanger human health or harm the environment. He thus submitted that the change in the language of the domestic provisions was significant. No longer was achieving the result of article 4 required merely as an objective to be pursued: achieving that result was the purpose for which any relevant functions had to be exercised.[35]On behalf of the Secretary of State, Mr Daniel Kolinsky submitted that the change in wording of the domestic legal provisions was without material significance. He contended that an authority is required to take the objectives set out in article 4 of the 2006 Directive as goals at which to aim and to have due regard to them. He accepted that an authority may decide, provided that it has had due regard to those objectives, to permit a waste operation on terms that it considers will give rise to a real risk to human health or the environment, or even some harm to them, if there is sufficient reason to do so. But he submitted that that issue does not need to be determined on this application.[36]On behalf of Viridor,Mr David Elvin QC also submitted there was no material difference between doing something "with a (particular) objective" or "for a (particular) purpose." An authority had to have regard to the purposes of article 4 of the 2006 Directive and, like Mr Kolinsky, he submitted that an authority's obligation was merely to keep the objectives of article 4 in mind throughout the decision-making process.[37]In Thornby Farms the leading judgment in the Court of Appeal was given by Pill LJ. He pointed out the Waste Management Licensing Regulations 1994 had been made to give effect to the requirements of the 1975 Directive and that article 4 was referred to in article 7 of that Directive as setting "objectives". Pill LJ then referred to four cases on article 4 decided by the Court of Justice. On the basis of those cases, he stated at paragraph [44]:
"The objective stated in paragraph 4 is unqualified but the court has recognised that in taking the measures necessary to achieve it, Member States are left a margin of discretion in assessing the need for the measures to be taken to achieve it. The court has expressly recognised that article 4 confers a discretion. That discretion goes first to the need for measures and second to their timing. While the objective is unqualified and the discretion will be closely supervised, the court has recognised that there may be harm to the environment from the disposal of waste without there necessarily being an actionable breach of that article."
Pill LJ also referred to a judgment by Richards J (as he then was) on the then relevant domestic provisions in R v Lancashire County Council Ex Parte Boothorpe Action Group[2001] Env LR 35. In paragraph [48] of his judgment in that case, Richards J had stated:
"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 it 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 because a large number of other considerations have also been taken into account in reaching the decision and some of those considerations militates against the achievement of those objectives."
[38]Pill LJ's general conclusion on this issue at paragraph [53] was that:
"An objective in my judgment is something different from a material consideration. I agree withRichards 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, towardswhich the advance of troops is directed. In material considerations, a fact to be taken into account when making a decision and the objective to be obtained will be such a consideration but it is more than that. An objective which is obligatory must always be kept in mind when making the decision even while decision maker has regard to othermaterial 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 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 of disregard to 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."
[39]In one of the two cases before the Court of Appeal on that occasion, Murray v Derbyshire County Council, the Court of Appeal accordingly considered that is was compatible with the relevant obligationsfor a local planning authority to grant planning permission for an extension to a waste disposal site notwithstanding it would have had some adverse environmental consequences, as the benefits outweighed them, even if there may have been no immediate need to use the land for that purpose: see at paragraphs [39], [48] and [64] to [66].[40]In Residents Against Waste Site Limited v Lancashire County Councilsupra, having referred to this decision, Irwin J added at paragraph [34] that, in his view:
"The Court of Appeal was clearly seeking to avoid an artificial hierarchy of material considerations. The formulation that a plain and flagrant disregard for the objective conveys the correct sense of what is required by the law before a breach of duty is established. The objectives are to be kept in mind must not be disregarded and must be set alongside all the other considerations which are material to the relevant case."
[41]The approach apparently adopted in these two cases therefore, is that the obligation to take measures to ensure waste is recovered or disposed of without endangering human health and without using processes or methods which harm the environment is not an obligation that requires the measures taken to be such that the relevant national authority considers that they will ensure that waste will be recovered or disposed of without those consequences. The obligation is one that merely requires the measures to be taken (such as decisions under any licensing regime) to have avoiding those consequences as an objective but it does not mean that it is the only objective that a national authority may pursue or that avoiding such consequences must be the overriding objective. Logically, this would mean, for example, that, if there was sufficient reason to do so, a national authority could permit waste to be dealt with in a way that harmed the environment or endangered human health as Mr Kolinsky submitted. Such an approach goes further than recognising that measures taken to ensure that waste is dealt with without endangering human health or harming the environment may nonetheless fail to achieve that result and no breach of article 4 will occur unless measures are not taken reasonably promptly to deal with that situation once it is recognised.[42]Whatever the answer in principle may be to the issue of what article 4 may require when the grant or refusal of permit is under consideration, the first two questions I need to consider are(a) whether this issue is of any significance in the determination of this application and(b) whether it is open to me to reach a different conclusion from that of the Court of Appeal.[43]At its highest, Mr Wolfe's contentions come to this: article 4 requires that a permit may only be granted if the national authority considers that the waste recovery operation proposed will not endanger human health and will not use methods or processes which could harm the environment. In this case the Secretary of State agreed with his Inspector's conclusion at (IR 16.93) that the scheme "would help secure the management of waste without endangering human health and without harming the environment." In my judgment, that is a clear finding that, in the Secretary of State's view, human health would not be endangered, and the environment would not be harmed, if conditional planning permission for this scheme was granted. The Secretary of State has thus addressed the relevant question posed by article 4 and answered it, even if what article 4 of the 2006 Directive involves is taken at its highest. What Mr Wolfe has to show therefore is that the Inspector's reasoning leading to that conclusion, specifically about air quality, is flawed.[44]That said, I do consider that I am bound by the approachenunciated by the Court of Appeal in Thornby Farms. As I have indicated, Mr Wolfe submits that that approach cannot stand with the change in wording of the domestic provisions to which I have referred. But that depends on (1) whether the judgment of the Court of Appeal depends on the wording of the domestic provisions and (2), if it does not, whether any cases in the Court of Justice not considered by the Court of Appeal require a departure from any interpretation that the Court of Appeal put on article 4.[45]Mr Wolfe submitted that the Court of Appeal's decision involved predominantly an interpretation of the domestic legal provisions. In my judgment however, the result it reached was based on its view of the effect of article 4 rather on the precise wording of the domestic regulations. The Court of Appeal would have been well aware that the domestic legislation in issue had to be construed where possible so as to achieve the results prescribed by the 1975 Directive. That was therefore their starting point. It was also what they concluded. Thus having set out his conclusion in paragraph [53] which I have already quoted, Pill LJ then stated at paragraph [54] that:
"That [conclusion] accords with the approach that 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 Community v Italian Republic [1999] ECRI 1773, 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 of the objective does not necessarily involve a breach of article 4. The above analysis which substantially agrees with that of Richards J in the Lancashire County Council case [2001] Env LR 35, 57, paragraph 48, is also consistent with the wording of article 249 EC (ex article 189): A directive should be binding as to the result to be achieved ... but should leave to the national authorities the choice of form and method."
[46]Mr Wolfe has shown me no case in the Court of Justice which was not cited to the Court of Appeal which decides that a regulator may not do what the Court of Appeal appears to have decided that it could. He submitted, however, that the manner in which the Grand Chamber of the Court of Justice described article 4 in the case C494/01 EC v Ireland supra, which I have quoted above, suggested that it would take a different view of what article 4 requires than the Court of Appeal did. That may or may not be so. But it is not something about which I propose to speculate given that the relevant issue does not arise in this case on the facts and given that the Grand Chamber was not specifically addressing it.[47]For what it is worth, the deletion of the reference to "objectives" in the domestic provisions in fact appears to me to be of no real significance for two reasons.[48]The first is that the nature of article 4 is that it specifies certain objectives, as the Grand Chamber recognised on a number of occasions in the passages from its judgment in Case C494/01 EC v Ireland which I have quoted. That is why I attach no significance to the absence in the 2008 Directive of any express description of the equivalent provision (article 13) as setting objectives. That is simply what article 4 of the 1975 and 2006 Directives and article 13 of the 2008 Directive do. The real issue about article 4 concerns the nature, or the content, of the objectives it prescribes in relation to the discharge by national authorities of the function of permitting a waste disposal or recovery operation. That issue is(a) whether they may only permit such operations where they consider they will not endanger human health and they will not use methods or processes that could harm the environment or(b) whether they may permit such operations when they consider they could endanger human health, or that they will use methods or processes that harm help the environment, provided there is sufficient reason to do so, having had due regard to the objectives of avoiding such a situation. Is it their task to ensure that recognised risks are eliminated or may they deliberately permit them to occur if there is sufficient reason to do so?[49]The second reason why in my judgment the change in wording is of no real significance is that, whatever the language of the domestic legislation may be, it has to be construed where possible to achieve the result which section 4 of the 2006 Directive may require. The two different formulations of the duty in the domestic legal provisions are both capable of giving effect to whatever article 4 of the 2006 Directive required. The substantive content of each of the domestic legal provision must be derived, therefore, from what that article requires. ISSUE 2: DID THE REPLACEMENT OF ARTICLE 4 OF THE 2006 DIRECTIVE BY ARTICLE 13 OF THE 2008 DIRECTIVE HAVE ANY SIGNIFICANCE FOR PURPOSES OF THIS CASE?[50]In his oral submissions, Mr Wolfe sought to suggest that, whatever may have been the position under article 4 of the 2006 Directive, the position was different under the 2008 Directive and that, since the 2008 Directive should have been transposed before the decision impugned was taken, effect must be given to it.[51]Given the apparent similarity in the basic obligation each article imposes, it is not obvious what material difference there may be in the relevant obligation. Mr Wolfe submitted, however, that under the 2008 Directive, the relevant obligation imposed was to secure that the impacts of, or the emissions from, waste management are minimised so far as that is compatible with any need for an operation of the capacity involved. In support of the suggestion that minimising impacts is an objective of the 2008 Directive and specifically of article 13, he referred to recitals (6) and (8) and article 1 of the 2008 Directive. These recitals provide as follows:
"(6) The first objective of any waste policy should be to minimise the negative effects of the generation and management of waste on human health and the environment. Waste policy should also aim at reducing the use of resources and favour the practical application of the wast hierarchy. "(8) It is therefore necessary to revise Directive 2006/12/EC in order to clarify key concepts such as the definition of waste, recovery and disposal, to strengthen the measures that must be taken in regard to waste prevention, to introduce and approach that takes into account the whole life cycle of products and materials and not only the wast phase and to focus on reducing the environmental impacts of waste generation and waste management, thereby strengthening the economic value of waste. Furthermore, recovery of waste and the use of recovered material should be encouraged in order to conserve natural resources. In the interests of clarity and readability directive 2006/12/EC should be repealed and replaced by a new directive. Article 1 of the 2008 Directive provides as follows: "
This Directive lays down measures to protect the environment and human health by preventing or reducing the adverse impacts of generation and management of waste and by reducing overall impacts of resource use and improving the efficiency of such use."[52]It is, of course, the case that the 2008 Directive is concerned to prevent or reduce adverse impacts from the generation and management of waste. There are new provisions in the 2008 Directive seeking to reduce such adverse impacts. But in my judgment article 13 is concerned, as was article 4 of the 1975 Directive (as the Grand Chamber in Case C494/01 EC v Irelan supra recognised at paragraph [165]) with preventive action. Thus as recital (49) makes plain, the fundamental objective of the 2008 Directive, like that of the 2006 Directive is "the protection of the environment and human health." Recital (30) provides:
"That in order to implement the precautionary principle and the principle of preventive action enshrinedin article 1742 of the treaty, it is necessary to set general environmental objectives to the management of waste within the community. By virtue of those principles, it is for community and member states to establish a framework to prevent, reduce and insofar as possible eliminate from the outset the sources of pollution and nuisance by adopting measures whereby recognised risks are eliminated."
[53]Article 13 may be thought to indicate what the necessary measures for that purpose in connection with waste management are which should be taken (as the Grand Chamber of the Court of Justice also indicated that article 4 of the 1975 directive did at paragraph [165]). But what article 13 does not do is to state that the measures which are necessary are those which merely minimise or reduce any danger to human health or harm to the environment so far as is compatible with the need for an operation of the capacity involved. That is not the objective it identifies. It is true that the role of the article 13 of the 2008 Directive in decisions on permits is more explicitly dealt with in that Directive than was the role of article 4 in the earlier Waste Directives. By virtue of article 10.1 of the 2008 Directive, Member States are required to take the necessary measures to ensure waste undergoes recovery operations "in accordance with...article 13." By virtue of article 12, if waste is not recovered Member States have to ensure that disposal operations, "meet the provisions of article 13 on the protection of human health and the environment." Article 23 provides that a competent authority, "shall refuse to issue the permit" "in particular when the method [of treatment] is not in accordance with article 13." It may be said that these provisions in the 2008 Directive may cast light on the nature of the objectives that article 13 requires to be pursued when the grant of permits is under consideration. But it may equally be thought that these provisions merely elaborate what the Grand Chamber had said, in paragraph [118] of its judgment in the Case C494/01 EC v Ireland supra that the permit provisions in the 1975 Directive were intended to achieve, namely:
"To enable article 4 to be implemented correctly in particular by ensuring that the disposal and recovery operations carried out under such permits comply with the various requirements set by article 4."
[54]But, although the role of article 13 in decisions on permits may be dealt more explicitly in the 2008 Directive, in my judgment these further provisions do not indicate that the basic obligation it imposes in respect to the activities to which it applies, whatever that may be, has changed, much less that it has changed in the way Mr Wolfe now suggests.[55]But, in any event, the provisions of the 2008 Directive are in my judgment irrelevant to the present application. The relevant domestic legal obligation extant at the time of the decision impugned was framed in terms of implementing the purposes of article 4 of the 2006 Directive. It is not possible in my judgment to construe that as a reference to a different article in a different Directive. The 2010 regulations sought to implement the 2006 directive. To seek to construe them, whether by rewriting the definition of the Waste Framework Directive in them or by the substitution of a new provision defining the purposes for which the Secretary of State's powers must be exercised, would thus be to change a fundamental feature of the 2010 Regulations. Accordingly, the 2008 Directive is irrelevant unless it can be said that article 13 when taken with the provisions relating to the grant of permits in the 2008 Directive to which I have referred creates a directly enforceable right. In my judgment, they plainly do not do so.[56]In Case C-236/92 Comitato di coordinamento per la Difesa della Cava and others v Regione Lombardia and others[1994] ECR 1-483 [1994] Env LR 281, the Court of Justice had to consider whether article 4 of the 1975 Directive created a directly enforceable right in respect of the contents of a waste management plan required by another article of that Directive. It stated: "8. The court has consistently held that whenever the provisions of a directive appear as far as their subject matter is concerned to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the state where the state fails to implement the directive in national lawby the end of the period prescribed or where it fails to implement the directive correctly. 9. A community provision is unconditional where it is not subject in its implementation or effects to the making of any measureeither by the institution of the community or by the member states. 10 Moreover, provision is sufficiently precise to be relied on by an individual and applied by the court where the obligation which is imposed is set out in unequivocal terms.11. The provision in question does not display the above characteristics.12. Considered in its context article 4 of the directive, which essentially repeats the terms of the third recital in the preamble, indicates a programme to be followedand sets out the objectives which the member states must observe in the performance of their more specific obligations imposed on them in articles 5 and 11 of the directive concerning planning, supervision and monitoring of waste disposal operations.13. It must be also noted that the court has already held in relation to member states obligations under article 10 of the directive that the provision does not lay down any particular requirement restricting the freedom member states requiring the way in which they organise the supervision of the activities referred to therein but that freedom must be exercised having due regard to the objectives mentioned in the third recital in the preamble to the directive in article 4 thereof.14. Thus the provisions issue must be regarded as defining the frameworkfor the action to be taken by member states regarding the treatment of waste and not as requiring in itself the adoption of specific measures or a particular method of waste disposal. It is therefore neither unconditional nor sufficiently precise and thus is not capable of conferring rights on which individuals may rely as against the state.15. It must therefore be statedin reply to the first question of article 4 of the directive does not confer on individuals rights which the national courts must safeguard.[57]In my judgment the same is true of article 13 of the 2008 Directive when taken in conjunction with the provisions of that Directive on the grant of permits as it was of article 4 of the 1975 directive when taken in conjunction the provisions of a waste management plan. Article 13 sets the objectives which have to be achieved but it does not prescribe unequivocally what in any particular case those objectives may require. Its implementation requires decisions by national authorities. It is thus neither unconditional nor sufficiently precise to be directly relied on by individuals.[58]In my judgment, therefore, the Claimant's application must be determined by reference to the 2010 Regulations as they stood at the date of the Secretary of State's decision. ISSUE 3: DID THE SECRETARY OF STATE DECIDE NOT TO EXERCISE HIS PLANNING FUNCTIONS FOR THE PURPOSES OF IMPLEMENTING ARTICLE 4 OF THE 2006 DIRECTIVE IN RESPECT OF ANY PARTICULAR MATTER WITH WHICH THE ENVIRONMENT AGENCY HAD POWER TO DEAL?[59]Mr Wolfe contends that it is clear from IR 16.25 that the Inspector considered that:
"Most of these third party concerns are not planning matters and therefore should be directed to the pollution control authorities as indicated in the Companion Guideto PPS10 (para 8.5)."
I interpose that that paragraph states in effect that the planning and pollution control regimes are complementary but planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced and that they should not concern themselves with the control of processes which are a matter for pollution control authorities.[60]Mr Wolfe also pointed to the fact that in the Inspector's conclusion in paragraph 16.25 was that:
"In relation to land use planning the proposals impact on air quality and healthwill be insignificant and acceptable."
[emphasis added] The Inspector's approach, Mr Wolfe submits, was a mixture of saying that the impacts in question were for the Environment Agency to consider (not for him) on the one hand and of reassuring himself that the impact would be below various thresholds or limits on the other. Thus Mr Wolfe made the point that the effect on air quality from the traffic associated with the facility was a planning matter, not a matter for the Environment Agency and that the Inspector thought it acceptable if traffic emissions would be within acceptable limits. If Mr Wolfe's interpretation of IR 16.25 is right, therefore, the Inspector did leave something to be dealt with by the Environment Agency, namely most of the matters that he considered local residents had raised about local air quality.[61]Mr Kolinsky submitted that the Inspector and Secretary of State concluded that the proposed development wasconsistent with the objectives set out in article 4 of the 2006 Directive. He submitted that, in IR 16.25, the Inspector concluded there would not be any material adverse impacts in respect of air quality issues. He argued that the Inspector's conclusion IR 16.93 that the proposal would help secure the management of waste without endangering human health and without harming the environment shows that he thought the proposal was consistent with the objectives of article 4 of the 2006 Directive and, therefore, for that purpose, nothing had been left to the Environment Agency.[62]Mr Elvin submitted that the Inspector did not abrogate his responsibility to consider the evidence and to reach a conclusion on the environmental impacts that the development proposed. Like Mr Kolinsky, he relies on the statements in the other parts of the Inspector's report to which I have referred.[63]In my judgment, it is plain that the Inspector did leave some matters to be dealt with by the Environment Agency. His conclusion in the last sentence of IR 16.25 was limited to matters which he thought related to land use planning and it is plain that he thought that a number of things relating to air quality were not so related. Indeed, in his skeleton argument at paragraph 65, Mr Kolinsky recognised that the Inspector's approach was to decline to undertake a detailed evaluation of matters separately regulated by the Environment Agency under the 2010 Regulations.[64]In my judgment, therefore, consistently with the approach indicated in the Companion Guide to PPS10, the Inspector and the Secretary of State did not concern themselves with matters relevant to what is now the environmental permit regime. Whether that involved any breach of the Secretary of State's obligations under the 2010 Regulations, or whether his treatment of matters not dealt with under the environmental permit regime was unlawful, is another question. ISSUE 4: DID THE SECRETARY OF STATE ERR IN LEAVING MATTERS TO THE ENVIRONMENT AGENCY TO DEAL WITH AND DID HE FAIL TO COMPLY WITH THE REQUIREMENT TO EXERCISE HIS POWERS FOR THE PURPOSES OF ARTICLE 4 IN CONNECTION WITH OTHER MATTERS?[65]Mr Kolinsky submitted that the Inspector and the Secretary of State were entitled to leave matters to be dealt with by the environmental permit regime to that regime given paragraph 4 of Part 2 of Schedule 25 to the 2010 Regulations. Mr Elvin supported that submission contending that a significant number of the concerns raised by third parties related to the control or monitoring of pollution rather than the impacts of the EfW facility and that their evidence relating to epidemiological or other health studies were not planning matters.[66]Mr Wolfe submitted, however, that the Secretary of State was not entitled to leave matters to the Environment Agency to be dealt with under the 2010 Regulations as that meant that the planning considerations of whether there should be a plant this big and in this location would not be dealt with. He submitted that the Environment Agency would only be concerned with controlling emissions from an incinerator of the size permitted in this location and not with the principle of its size and its location. That meant, so he submitted, that the Secretary of State failed to comply with his obligations under paragraph 1(1) of Part 2 of Schedule 25 to the 2010 Regulations.[67]In my judgment, Mr Wolfe's argument suffers from a number of fundamental defects.[68]The first is that the Secretary of State did consider whether there was any need for an EfW facility of this size. Both the inspector and Secretary of State referred in their conclusions to "the pressing need for the waste management facility" proposed.[69]The second fundamental defect in Mr Wolfe's submissions is that the Inspector found that the proposal would satisfy the locational criteria in PPS10 which are designed to help achieve the objectives which article 4 specifies and that there was nothing to suggest that another site in Oxfordshire would perform better against them: see IR 16.92 and IR 16.90. The Secretary of State agreed with those conclusions.[70]Given that the Secretary of State concluded there was a pressing need for a waste management facility of this capacity in Oxfordshire and there was apparently no better location, Mr Wolfe's submission that the Secretary of State did not consider the planning considerations of whether there should a plant this big and in this location is devoid of any substance.[71]But that does not exhaust the fundamental defects in his contention that the Secretary of State erred in leaving matters to the Environment Agency. The third defect is that the assumption that the Environment Agency would not be concerned when granting any environmental permit for the EfW facility with ensuring that emissions from it did not endanger human health or harm the environment. But in my judgment, it plainly would have to be concerned with that task if it was to comply with its own duties as a regulator under the 2010 Regulations. Moreover it is plain from its decision in October 2010 to which I have already referred, that it thought emissions from the plant proposed would not endanger human health or harm the environment. But whether or not that is right, if there is any failing in how the Environment Agency dealt with emissions to air with reference to its own duties to exercise its functions for the purpose of implementing article 4 of the 2006 Directive, that is a matter by reference to which its decision (rather than the Secretary of State's) may be impugned.[72]I had some difficulty in following how Mr Wolfe tried to link the requirement to show a need for the facility having the capacity of that proposed to the objectives of article 4 of the 2006 Directive on the basis of the Claimant's case. Of course, such a need might be relevant if it was used to justify departing from the objectives in that article, having given them due regard, an approach which the decision of the Court of Appeal in the Thornby Farm case might support. But Mr Wolfe submitted that that was not the correct approach. Nor is it the one the Inspector and the Secretary of State followed in this case. The link materialised in Mr Wolfe's submission on the obligation which article 13 of the 2008 Directive should be taken to give rise to. But, for the reasons I have given, I do not accept that article 13 embodies a different approach or one which is applicable in this case. There is, however, a further problem as it seems to me with Mr Wolfe's underlying approach. That seemed at times to be based on the notion that an aim embodied in article 13 was to achieve zero emissions, or as few emissions as possible, from any plant and thus that any emission of any description required justification. That in my judgment is simply wrong. Article 4 of the 2006 Directive and article 13 of the 2008 Directive are not concerned with any emission which is harmless to humans or to the environment. Nor is there any reason given the objectives of those Directives why they should be.[73]This fallacy likewise in my judgment underlay Mr Wolfe's argument about emissions to air from traffic generated by the proposal.[74]Mr Wolfe made the point that the effect on air quality from traffic associated with the facility was a planning matter and not a matter for the Environment Agency. That is no doubt true and it was one concern about air quality that the Secretary of State needed to address as part of his consideration of the planning appeal. That is reflected in IR 16.23 and 16.25. The Inspector recorded that:
"Objections had been made to the possible breach of air quality standards for various substances and elevated levels of CO2 from both the EfW plant and associated road haulage, hence contributing to global warming."
He stated that Viridor's assessment demonstrated inter alia that, "traffic emissions would be within acceptable limits," and there was little technical data to challenge that evidence. He noted that the County Council agreed that the pollutants and dust from inter alia the associated vehicles would be negligible.[75]In my judgment, the Inspector (and the Secretary of State was thus entitled) to find on that basis that, insofar as it related to traffic emissions, the proposal's impact on air quality and health would be insignificant and acceptable.[76]Mr Wolfe submitted, however, that meeting air quality standards, which he had to accept the evidence showed that the traffic generated would do, was not sufficient to comply with the objectives in article 4 of the 2006 Directive.[77]The standards in question were the domestic Air Quality Standards and Environmental Assessment Levels. So far as the relevant pollutants from traffic are concerned, thesestandards replicate those contained in the Air Quality Regulations 2010 which implement Directive 2008/50/EC on ambient air quality and clean air for Europe. The limit values in question are specified in Annex XI to that Directive "for the protection of human health."[78]Mr Wolfe relied on article 12 of that Directive. That provided that:
"In zonesand agglomerations where the levels of sulphur dioxide, nitrogen dioxide, PM 10, PM 25, lead benzine and carbon monoxide in ambient air are below the respective limit values specified in annexes XI and XIV. Member states shall maintain the levels of those pollutants below the limit values and shall endeavor to preserve the best ambient air quality compatible with sustainable development."
This argument is fundamentally flawed in my judgment for a number of reasons. The question on this application is not whether the proposed development involves any breach of article 12 of this Directive. Had that question arisen, I would not have given Mr Wolfe leave to raise it as the matter emerged only in reply and evidence would have been required to deal with it. Indeed, if that question arose, it might no doubt be suggested that the proposal did preserve the best ambient air quality compatible with sustainable development given the need for the waste management facility proposed. The issue on this application is whether maintaining levels below the limit values would endanger human health. Avoiding that is the relevant objective article 4 of the 2006 Directive sets taken at its highest (assuming it relates to emissions from vehicular traffic). No contention to that effect was apparently advanced at the Inquiry. Mr Wolfe could point to no evidence to that effect. Indeed, the title to Annex XI would suggest the contrary. There is no possible way in which the Secretary of State can be said to have erred in law or failed to give reasons to deal with an issue that was not raised. The fact is that Mr Wolfe only introduced, and relied on, article 12 of this Directive in reply. The point has all the hallmarks of legal ingenuity. It equally has all the defects of having no factual basis. Mr Wolfe's contention depends on him being able to show that compliance with such limits may still involve endangering human health. He has not done so. Limiting emissions which do not harm human health is not something article 4 requires on any basis. CONCLUSION[79]I regret the length of this judgment. The Claimants have advanced a number of legal arguments which it has been necessary to describe and to explain why they do not affect the outcome of this application.[80]Stripped of these legal complications, in my judgment the case is ultimately relatively simple. The Secretary of State agreed with his Inspector's conclusion that the scheme proposed would not endanger human health and would not harm the environment. If that is correct, on no view could granting planning permission for it be incompatible with the obligations imposed by article 4 of the 2006 Directive. The only question, therefore, is whether, in reaching that decision, the Secretary of State erred.[81]In my judgment, he did not do so by leaving any matters relating to air quality to the Environment Agency to deal with. It was under the same obligation as he was in respect of the obligations imposed by article 4 regardless of the size of the plant it was considering. There was no reason for him to assume the Agency would not comply with its legal duty with respect to article 4. It is plain that in fact the Agency did comply in its view with that duty, concluding that the EfW plant would operate without harm to human health or the environment.[82]The obligations imposed by article 4 in relation to air quality were thus complied with on any view unless the Inspector's conclusions on air quality in respect of matters not dealt with by the Environment Agency can be faulted. In my judgment, the Claimants have failed to show they can be. There is nothing to support any contention that, if the standards by reference to which the Inspector's conclusion was reached were complied with (as he thought they were), human health would be endangered or the environment harmed.[83]I appreciate that the Claimants disagree strongly with the conclusions which the Inspector and Secretary of State reached about the need for an EfW facility with the capacity proposed and for it to be in this location. But this is not an appeal on the merits. Those conclusions are notimpugnable on this application as a matter of law. Nor on the facts do those conclusions bear on the legal complaint made in this case that the Secretary of State failed to comply with his obligations under the 2010 Regulations with respect to article 4 of the 2006 Directive.[84]This application must accordingly be dismissed. I would like to thank all counsel and those assisting them however for the help they have provided me with.[85]MR KOLINSKY: I am most grateful to your Lordship for his judgment. I seek the Secretary of State's costs. I have had discussions with my learned friends and I think by agreement, the order I would invite my Lord to make is that the claimant pay the First Defendant's costs to be subject to a detailed assessment if not agreed but limited to £10,000.[86]MR WOLFE: My Lord, as my learned friend indicates, that is an agreed order. THE DEPUTY JUDGE: Very well, I will order that the Claimant shall pay the First Defendant's costs, to be subject to detailed assessment if not agreed, limited to £10,000.

Cited in 1 later judgment