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The Waste Framework Directive - Incinerators & Planning

The Waste Framework Directive 2008, like its precursor, requires Member States to take the necessary measures to ensure that waste management is carried out without endangering human health, without harming the environment. But what precisely does that require from a planning inspector when determining a waste related appeal?

On 7th and 8th July, Ardley Against the Incinerator (“AAI”) argued that the new WFD requires decision makers in the planning and permitting regimes to ensure that waste management does not harm the environment or endanger human health. But additionally, they argued that the WFD 2008 had introduced a new “minimization” objective, which imposed a requirement on decision makers to seek to minimise all emissions or pollutants, irrespective of whether the level of emissions were considered to be harmful or not. The High Court (John Howell QC sitting as a Deputy High Court judge) rejected these arguments in AAI’s challenge to the grant of planning permission to Viridor Waste Management for an Energy from Waste plant (EfW) at Ardley, Oxfordshire. The challenge was on the basis that the Secretary of State had failed to discharge properly his duty under Article 13 of the WFD. The Court emphasised, applying UK and CJEU authority, that Art. 13 did not apply a requirement to seek or achieve zero emissions. Additionally, the court held that the principles set out in R (Thornby Farms Ltd) v. Daventry District Council [2003] QB 503 and Residents Against Waste v Lancashire CC [2008] Env. L.R. 27 remained applicable to the WFD 2008, despite changes in wording to the Directive, and to its transposition.

The Claimants have appealed to the Court of Appeal.