Something in the air

Case law can clarify the conflicting legislation surrounding waste disposal, writes Phil Shiner. Phil Shiner is head of Tyndallwoods' planning and environmental department and was instructed in Kirkman.

There are questions as to the duplication of control between the two systems relevant to industrial plants, especially waste disposal plants such as incinerators.

Many practitioners have assumed that the 1994 Court of Appeal decision in Gateshead MBC v Secretary of State for the Environment and Northumbrian Water Group [1994] (Gateshead) and Planning Policy Guidance 23 means that Local Planning Authorities (LPAs) are entitled – indeed obliged – to abdicate responsibility to the Pollution Control Inspectorate, mainly the Environment Agency (EA) over matters such as the effects of air emissions.

In fact, Gateshead properly interpreted requires LPAs to answer the question: “Is there a risk to public health and does the precautionary principle apply?” The division of planning and pollution control came before the Court of Appeal in the case of R v Bolton MBC ex p Kirkman [5 May 1998] (Kirkman).

One matter is now clear: all LPAs have important environmental duties that they must discharge in all planning applications for recovery or disposal of waste projects. It is no longer lawful to rely solely on the opinions of the EA.

In Gateshead the court held that before determining a planning application for an incinerator, the potential impact of air emissions was a consideration to which it must have regard.

In practice an LPA seeking to justify a planning consent can rely on Tesco Stores v Secretary of State for the Environment [1995] to give little or no weight to air emissions impacts. Most LPAs have relied on the opinion of the EA that a particular process will be the best practicable environmental option (BPEO), oblivious to the fact that it has granted every application for any type of incinerator. Further, the EA's approach to a plant is process-specific whereas an LPA is concerned with broader land-use matters and strategic functions.

The importance of Kirkman is that it begins to clarify this area. Gateshead predates the transposition of the environmental duties of the 1975 EC Waste Framework Directive. Article 4 provides an absolute duty that member States should ensure that waste is recovered or disposed of without endangering human health or the environment. Further, these objectives are linked to potential for harm by the use of the words “could” and “risks”.

These new duties are transposed through the Waste Management Licensing Regulations 1994, which require that authorities discharge their functions with the objectives. Clearly the objectives are far more than statutory relevancies.

In the High Court Mr Justice Carnwarth held that the Article 4 duty added nothing of substance to the debate following Gateshead. However the Court of Appeal disagreed and accepted the applicant's argument that the LPA should specifically address these objectives.

The lessons for practitioners are:

Gateshead must be read in the light of Kirkman. The Article 4 duties are absolute whether or not the consequences are acceptable. An LPA concerned about potential emissions to air from an incinerator or the public perception of risk would be entitled to refuse permission;

that LPAs must discharge their functions with the Article 3 Waste Management Hierarchy. Until the EC alters the hierarchy, it prefers recycling and re-use of materials to incineration with energy recovery;

LPAs must consider a BPEO assessment for the different wastes; and

courts will not balance environmental interests with property rights for individual legally-aided applicants, or even hear their arguments.

Kirkman plus Newport County Borough Council v Secretary of State for the Environment [1995] gives an LPA concerned about a waste disposal or recovery process reason to refuse permission. For an incinerator, public fears over dioxin deposition to soil would be sufficient. LPAs must assume that the EA will grant a Part 1 authorisation. Therefore LPAs wishing for objective advice on their new powers and duties should seek independent legal advice.