Disposal of animal carcasses contaminated with bovine spongiform encephalopathies - secretary of state entitled to derogate from requirements of council regulations without having introduced legislation - foot-and-mouth disease outbreak justifying alternative means of disposal

R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs: CA (Lord Justices Thorpe, Jonathan Parker and Dyson): 4 November 2003

Following the outbreak of foot-and-mouth disease in 2001, a farmer sought judicial review of the decision of the secretary of state to dispose of carcasses of cremated livestock contaminated with bovine spongiform encaphalopathies to landfill without any form of prior processing, notwithstanding the requirements of Council Regulation (EC) No 999/2001.

Mr Justice Goldring [2002] EWHC 2574 (Admin) dismissed the claim.

The claimant appealed.

Stephen Smith QC and Stephen Tromans (instructed by Burges Salmon, Bristol) for the claimant; Kenneth Parker QC and Paul Harris (instructed by the Solicitor, Department of the Environment, Food and Rural Affairs) for the secretary of state.

Held, dismissing the appeal, that the secretary of state was entitled to rely on the option to derogate, contained within the regulation, to allow alternative methods of disposal; that no legislation was required in order to effect such a derogation; and that, on the facts, the secretary of state had established, for the purposes of article 3(2) of Council Directive (90/667/EEC), that a widespread epizootic disease had led to a lack of capacity at the high-risk material processing plant, so as to justify disposal to landfill.