R (Friends of Finsbury Park) v Haringey LBC [2016] EWHC 1454 (Admin) was an unsuccessful application for judicial review to quash a decision of Haringey Council to hire Finsbury Park, which the Council owns, for a licensed music festival. Supperstone J observed (para 7) that the Park has played host to large scale events, including commercial concerts, attended by tens of thousands of people, for many years.

Supperstone J referred (paras 9-13) to the Council’s Events Policy, (paras 14-21) to the festival promoter’s Premises Licence, (paras 22-35) to the Council’s review following complaints about the event the previous year and consultation about the 2016 event.

There were four grounds of challenge. The most fundamental was to the Council’s vires. The statutory provisions upon which the Council relied included Section 145 (provision of entertainments) of the Local Government Act 1972. Supperstone J concluded (para 45) that Section 145, of itself and standing alone, provided the Council with the necessary power to permit the festival to take place in the Park.  The power included (para 47) closing the Park to members of the public, save for those who pay for admission, and closing the Park to the extent and for the time necessary to set up and take down the event infrastructure, and to hold the event safely for the benefit of those members of the public who wish to buy tickets to attend it.  Further (para 49) Section 145 does not state that its exercise is subject to any other enactment, or that it is to be read or qualified by any such enactment.  Section 44 of the Public Health Amendment Act 1890 is an additional power that the authority may rely upon should it so choose.

Supperstone J, applying well-settled principles, also dismissed a consultation challenge, on the basis of some of the information being allegedly “positively misleading” and the shortness (14 days) of the consultation period. The consultation was (para 60) adequate for its purpose. Moreover, Supperstone J added:

“61.      If, contrary to my view, there should have been more, or a longer period of, consultation, I consider, in the light of the consultation that there was this year and in previous years in relation to essentially the same event, it is highly likely that the outcome for the Claimant would not have been substantially different (Senior Courts Act 1981 s.31(2A)).”

Other challenges that were dismissed included that the Council had failed to deal with the application as a “key decision” and that the Council was in breach of other process requirements. The fact that the income the Council would earn would help the Council meet its Parks Budget did not mean that the decision was a key decision.  The decision was correctly designated as not being a key decision.  Nor was there any failure to record the decision or to make documents available.  Again, Supperstone J added:

“76.      I consider it highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred (s.31(2A) Senior Courts Act 1981). There was nothing in the decision or the report that would, in my view, have led to any further representations by the Claimant that would have made any substantial difference to the outcome.”

The felling by a local highway authority of trees in the highway, including its pavements and verges, is not “development” under the Town and Country Planning Act 1990. It does not require planning permission, or an environmental impact assessment, or consultation.  On the contrary, when such a tree is a source of danger or obstruction or needs to be moved in order to facilitate highway repairs, the authority is under a statutory obligation to remove the tree pursuant to its Highways Act 1980 duty to repair and maintain the highway.  So held in R (Dillner) v Sheffield City Council (2016) EWHC 945 (Admin).

In Case C-147/15, Provincia di Bari v Edilizia Mastrodonato srl, Advocate General Kokott, in her Opinion delivered on 21 April 2016, observed that the Italian Region of Apulia continually confronts the ECJ with environmental questions.  By way of example only: how, in the light of the Habitats Directive, are certain decisions of a City Council to be judged? Does that Directive prohibit the installation of wind turbines in bird protection areas?  Was there any illegal waste disposal site in that Region or not?  She further observed that perhaps these cases have contributed to an increased awareness of the competent authorities, so that they were keeping a critical eye upon plans for backfilling a former quarry with waste.

In any event, the authorities were in dispute with the operator of such a project as to which the strict provisions of the Landfill Directive are applicable or just the general law on waste. At the basis of the dispute is the fact that the Mining Waste Directive refers to the Landfill Directive for the backfilling of excavation voids with waste. The Court must now ascertain whether this reference is to the legal ground or the legal consequences, that is whether the conditions for application of the Landfill Directive must be met or whether its legal consequences are applicable to backfilling without further examination. This question is influenced by differences in the language versions in which the reference to the Landfill Directive is formulated. Moreover, the Court must in particular address whether and under which conditions the backfilling of a quarry with waste is a waste recovery operation or a waste disposal operation.

In order to clarify whether the backfilling of the quarry falls under the Landfill Directive, the Advocate General identified three questions: (1) whether the Landfill Directive is always applicable to the backfilling of a quarry with waste; (2) whether the Landfill Directive is applicable only to operations consisting of waste disposal or also to recovery; and (3) whether the backfilling of a quarry with waste is to be seen as disposal or recovery.

She answered the first question that backfilling with waste other than extractive waste is subject to the Landfill Directive when the conditions of application of that Directive are met.

She responded to the second question, as to the scope of application of the Landfill Directive, as follows. The distinction between the disposal and the recovery of waste is of central importance in the EU law on waste. In the hierarchy of waste, disposal is in last place, being the worst option, whereas recovery is in the second to last place. Recovery is therefore in principle to be preferred over disposal. Recovery serves as a sensible use of waste, as the waste replaces other materials which would otherwise have been used to fulfil a particular function.  Recovery of waste through the deposit of waste onto or into land does not fall under the Landfill Directive.

She concluded that the Landfill Directive is not applicable to recovery of waste, but only to the disposal of waste through its deposit onto or in the ground. However, only after suitable waste is completely recovered through some procedure, and thus has acquired the same properties and characteristics as a raw material used for backfilling, could it fall outside the application of the law on waste.

Thirdly, in order to establish whether the specific provisions of the Landfill Directive or just the general stipulations of the Waste Directive apply to backfilling quarries with waste, it must be clarified whether, or under which conditions, this use is to be seen as waste disposal or waste recovery.  She said that this question is to be answered on the basis of the currently applicable Waste Directive, as so far no waste has been deposited in the quarry. All waste coming into question must as a result be treated in accordance with the currently applicable provisions. The fact that the authorisation procedure for backfilling the quarry was initiated when the consolidated former Waste Directive was still in force cannot alter that conclusion. The definition of “disposal” in Article 3(19) of the Waste Directive encompasses any operation which is not recovery, even where the operation has as a secondary consequence the reclamation of substances or energy. Article 3(15) of the Waste Directive defines “recovery” on the other hand as any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy. This definition largely corresponds to the case-law of the Court on the old Waste Directive. 

Recovery has two conditions, namely that first the waste must serve a useful purpose and secondly must replace materials which would otherwise have been used to fulfil a particular function.  The first condition is essential, as only a useful employment of waste can even be recognised as a recovery of waste. The use of waste for backfilling quarries seems in principle to be useful. However, the definition of disposal already shows that the reclamation of substances or energy does not preclude a disposal, and that a useful employment of waste in itself is not sufficient. More crucial to a recovery operation is that the waste replaces materials which would otherwise have been used to fulfil a particular function. The UK rightly points out this characteristic. Because of high costs, this Member State doubts that quarries would typically continue to be backfilled when no waste is available for it. The fact that backfilling may possibly be a condition of the authorisation for the quarry alters nothing, as authorisation as a general rule reflects the plans of the operator and can also normally be changed if it should emerge that backfilling would cause disproportionate costs.

At first glance this view is surprising, as the ECJ has already in principle recognised backfilling as a recovery operation. However, those cases concerned the backfilling of galleries which, without long term backfilling, were in danger of collapsing, which could result in damage on the surface.  Comparable risks for disused quarries are clearly much more limited. Where such risks exist, complete backfilling is probably not necessary to counter them. It does not appear necessary in every case to backfill a quarry in order to be able to use that land for other purposes.

Accordingly says the Advocate General the UK is correct in its view that the competent national authorities must carefully assess whether other materials are in fact being replaced through backfilling a quarry with waste. An important indicator in this regard is whether the operator of the quarry has to pay for the waste used or whether he is paid for its use. In the latter case there are strong grounds for the assumption that the quarry would not be backfilled without the waste and it is therefore a case of waste disposal. 

The third part of the question is to be answered in the sense that backfilling a quarry with waste other than extractive waste constitutes a waste recovery operation if the competent authorities determine that the waste serves a useful purpose by actually replacing other materials, which in particular requires the suitability of the waste as a replacement for those materials.