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The Mayor of London exceeded his powers under the Greater London Authority Act 1999 s.356 when he issued directions to a waste disposal authority requiring that new incinerator contracts should include state of the art emissions-limiting equipment, combined heat and power generation, and pre-treatment of waste to remove recyclable elements before incineration.
The claimant waste disposal authority (W) applied for judicial review of directions to it by the defendant mayor of London (M) in respect of the procurement of incineration facilities for municipal waste.
W had wished to reduce the proportion of biodegradable untreated waste that it sent to landfill, as sending it was the least desirable option in the waste disposal hierarchy and also resulted in financial penalties if landfill quotas were exceeded. Therefore, W proposed to put out to tender a contract for diversion of waste away from landfill. A waste contractor was building an incinerator that W considered would be a suitable solution, but M did not believe that using it would be in accordance with M's municipal waste management strategy. Under the Greater London Authority Act 1999 s.356 , for the purposes of implementing M's waste strategy, he had powers to issue directions to waste disposal authorities requiring them to exercise their functions in the manner set out in those directions. M issued two such directions to W, paragraph 3 of which required that new incinerator contracts should include "state of the art" emissions-limiting equipment, combined heat and power generation, and pre-treatment of waste to remove recyclable elements before incineration.
M submitted that he had the power to give a direction in respect of a discrete area of the strategy by virtue of the words "may be exercised either generally or specially" in s.356(4) of the 1999 Act. W submitted that particular principles in M's strategy could not be elevated above the others and made into requirements. W further contended that the pre-treatment of waste before incineration, and the use of incinerators that minimised emissions and generated heat and power were aspirations but that they could not justify requiring only an incinerator that did those things while ignoring one that did not, as that could result in the continued use of landfill, which would ignore the waste hierarchy principle.
HELD: (1) Under s.356 of the 1999 Act, M could only give a direction if he considered it necessary for the purposes of the implementation of his waste management strategy when read as a whole. That power was narrower than the wholly unfettered power that had been given to the secretary of state under the Town and Country Planning Act 1990 s.35(2) , and M did not have the power to exclude an option that might accord with his strategy taken as a whole, R. v Secretary of State for the Environment, Transport and the Regions Ex p. West Sussex CC (1999) 77 P. & C.R. 263 distinguished. (2) The requirements in M's directions for new incinerators to have "state of the art" emissions-limiting equipment, and combined heat and power, were aspirational and ignored issues of practicability and cost; it would be difficult to find a tenderer willing to commit to providing such an incinerator. Those requirements excluded options that would accord with M's strategy when read as a whole. The likely consequence of such requirements would be to shut out any option but the continuation of the use of landfill, a result which ignored the waste hierarchy principle and was not the best practical environmental option. Although the position with respect to pre-treatment of waste was less clear cut on the facts, that requirement also seemed to shut out a solution that might be the best practicable environmental solution and so had the same defects as the other two requirements.
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