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High Court rejects Waste Framework Directive challenge to Ardley Energy from Waste Plant

On 8 July, the High Court (John Howell QC sitting as a Deputy High Court judge) rejected the challenge to the grant of planning permission to Viridor following a 3 week inquiry in July 2010 for an Energy from Waste plant (EfW) at Ardley, on land adjacent to the M40 and currently comprising a landfill site. The EfW facility will have a capacity to process 300,000 tonnes of residual, non-recyclable waste with landfill diversion of up to 95 per cent of waste delivered to the facility and the generation of up to 24MW of electricity to be supplied to the National Grid.

The challenge, by Ardley against the Incinerator (a local residents' group) was on the basis that the Inspector and Secretary of State had failed to discharge properly their duty under Article 4 of the Waste Framework Directive 2006/Article 13 of the Waste Framework Directive 2008 as transposed in Schedule 25 to the Environmental Permitting Regulations 2010. The UK had failed to transpose the WFD 2008 by 12.12.10 so article 13 was directly effective.

The Judge held that article 4 fell to be applied since, despite a late transposition of the 2008 WFD, article 13 was not directly effective and that in any event the duty had been properly understood and discharged by both Inspector and Secretary of State on the facts of the case. The Court emphasised, applying UK and CJEU authority, that art. 4/art. 13 did not apply a requirement to seek or achieve zero emissions. The Court also considered the boundary between planning and environmental permitting since the Environment Agency had been satisfied that air quality and other issues within its remit had been appropriately addressed by Viridor. The change in wording in the EPR 2010 over that applied in the Waste Licensing Regulations 1994 did not lead to a different conclusion or interpretation of the duty from that applied in R (Thornby Farms Ltd) v. Daventry District Council [2003] QB 503 and Residents Against Waste v Lancashire CC [2008] Env. L.R. 27.

Dan Kolinsky represented the Secretary of State

David Elvin QC and Toby Fisher represented Viridor, the proposed developer and operator of the EfW