Judgments - R (on the application of Edwards and another (Appellant)) v Environment Agency and others (Respondents)

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29.  There is no dispute that the plant was an existing installation. A “substantial change” is defined in article 2.10(b) as—

“a change in operation which, in the opinion of the competent authority, may have significant negative effects on human beings or the environment”

30.  There is an unchallenged finding of fact that the only change in operation proposed by the application, namely the use of tyres, would not have significant negative effects on human beings or the environment: see the judgment of Lindsay J at para 31. A claim based on the directive must therefore fail.

The PPC Regulations

31.  The second legal basis for the duty is the regulations. These, as I have said, do not distinguish between existing and new installations. There is a general duty upon the Agency under regulation 29 to maintain a register, open to inspection by the public, which contains the particulars specified in paragraph 1 of Schedule 9. These include “(a) all particulars of any application made to the [Agency] for a permit". But the AQMAU documents were not particulars of the application. They were internal documents generated by the Agency in dealing with the application.

32.  Paragraph 4 of Schedule 4 provides that the Agency may—

“…by notice to the applicant, require him to furnish such further information specified in the notice, within the period so specified, as the regulator may require for the purpose of determining the application…”

33.  Paragraph 1(b) of Schedule 9 then adds particulars of the notice and any information furnished in response to the notice to the matters which must be put on the register. The Agency did give a notice under para 4 of Schedule 4 and received a substantial answer (both of which were put on the register), but none of this was relevant to LLPS emissions. The AQMAU documents certainly did not constitute either requests to the applicant or answers.

34.  The argument on the Regulations is put in two alternative ways. First it is said that the AQMAU documents demonstrated that the application had been incomplete. Without new information about LLPS which appeared to have been supplied by the company to AQMAU for the purposes of its report, the application did not comply with the requirement of paragraph 1(g) of Schedule 4 and in particular, the need to describe “any foreseeable significant effects of the emissions on the environment". Section 4 of the application said nothing about the effects of LLPS emissions of PM10 on the environment. It was confined to the effects of emissions from the main stack.

35.  I rather doubt the factual basis for the allegation that the AQMAU documents reveal a communication of significant information to the Agency. It is true that AQMAU 1, a working paper drafted by Ms Bethan Tuckett-Jones, a member of AQMAU, and a couple of e-mails from her to Mr Mair, an officer of the Agency, show that she was asking Mr Mair for some additional information about LLPS for the purposes of her model. Para 6.12 of her draft said:

“In addition to the main stack, 15 potential sources of particulates have been identified at the plant. The information used to identify and quantify these sources has been supplied by Dick Mair in consultation with Rugby Cement…”

36.  But there is no evidence about the extent of the consultation. Dr David Evans, a head of the environmental function for the company, said (second witness statement, para 9) that he had not seen the AQMAU documents till they were produced in these proceedings:

“I would stress these are simply the estimates of the AQMAU authors of the report, and in my view some are very significant over-estimates. Had the report been provided to [the company] for comment, I expect we would have queried or challenged those estimates.”

37.  It would appear from the way the matter was treated in the decision document that what the AQMAU did was to take all possible LLPS in the plant (which had been fully described in the application) and assume that each would be emitting PM10 at the maximum concentrations permitted by the relevant ELVs. It then ran its own computer model and produced its own results. No attempt was made in the evidence to assess the significance of any actual information which Mr Mair may have obtained from the company.

38.  Long before AQMAU was called in, the Agency had accepted the application as a valid application. It did not regard the failure to include LLPS emissions in the computer modelling as a fatal defect. The regulations do not require computer modelling of the environmental effects. It may in appropriate circumstances be enough to leave the Agency to draw the obvious inference that emissions of PM10 will, to a greater or lesser extent, affect the quality of the air. The Agency could have determined the application pursuant to paragraph 10.9 of Integrated Pollution Prevention and Control: A Practical Guide on the basis that even if LLPS emissions took air quality over the EQS limit, they made a minor contribution to the pollution and should not affect the grant of a permit to an existing installation. Or it could have decided that the application provided sufficient information to enable AQMAU (or anyone else) to decide for themselves whether LLPS emissions might result in a breach of the EQS limit. It is, as both the judge (at para 38) and the Court of Appeal (at para 84) held, primarily for the regulator to judge the adequacy of the information which the applicant has supplied. Mr Wolfe, who argued the appeal with great learning and ability, did not challenge this proposition. But he said that the gap in the information about the environmental effects of PM10 was so manifest that the Agency could not reasonably have judged the application to be valid. For the reasons I have given, I do not accept this submission. The remarks of Sullivan J in R (Blewett) v Derbyshire County Council [2004] Env LR 29, at para 41 about environmental statements, with which I agree, seem to me equally applicable to applications under the regulations:

“In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant’s environmental statement will always contain the ‘full information’ about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting ‘environmental information’ provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations…but they are likely to be few and far between.”

39.  In agreement with the judge and the Court of Appeal, I therefore think that the Agency was entitled to find that the application was valid.

40.  Mr Wolfe’s alternative submission on the Regulations was that even if the application was valid, the Agency was not entitled to take into account information which had been supplied by the company pursuant to an informal request. The fact that the Regulations gave the Agency power to request information formally, coupled with the duty to put the request and the answer on the register, gave rise to an implied obligation on the Agency not to accept significant information from the applicant otherwise than in the application or by formal request. Otherwise the publicity requirements of regulation 29 could be evaded by secret communications between the applicant and the Agency.

41.  As I have said, I doubt the factual basis for the allegation that significant new information was supplied. But I also do not think that one can imply into the Regulations any restriction on the information which the Agency may obtain by informal inquiry. Plainly the application has to provide the statutory minimum of information. Recital 13 of the IPPC directive says that “applications for permits under this Directive should include minimum data". But this requirement does not seem to me inconsistent with the Agency being able to ask for more data if it finds it necessary or useful in determining the application. On the contrary, that seems to be implied in the use of the term “minimum data". In allowing formal requests for additional information under para 4 of Schedule 4, the Regulations assume that an application may satisfy the minimum requirements of the directive but the Agency may still consider that it needs more information to make a decision. That seems to me correct. And since the directive makes no distinction between formal and informal methods of obtaining supplementary information, it would follow that informal inquiries are not inconsistent with the directive. But the directive does not require the results of such inquiries to be published.

42.  The publicity requirements of the Regulations already go further than the directive in two respects: first, as we have seen, in applying to existing installations, and secondly, in requiring publication of formal supplementary inquiries and the information thereby obtained. I see no reason to imply a further requirement which excludes informal communication between the applicant and the Agency. In a complicated application, one would expect the Agency officials to have discussions with the applicant about matters of concern. It would be extremely inhibiting if the Agency ran the risk that its decision would be vitiated because the applicant was held to have communicated some item of information which ought to have been the subject of a formal inquiry.

43.  Thus in my opinion there was no breach of any express or implied term of the regulations. Everything that needed to be put on the register was duly published.

Common law duty of fairness

44.  The third basis for the duty of consultation is that the Agency owed a duty of fairness at common law to disclose one or both of the AQMAU documents: see Regina v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213. It was, it was said, a procedural irregularity not to do so. This argument was accepted by Lindsay J (at paras 42-64) and the Court of Appeal (paras 86-106). There is no challenge to this finding in the Agency’s printed case and I shall therefore not spend much time upon it, except to say briefly that I would not have come to the same conclusion. The IPPC directive specifies with some precision what information should be made available to the public. The regulations both give effect to these requirements and extend them. When the whole question of public involvement has been considered and dealt with in detail by the legislature, I do not think it is for the courts to impose a broader duty. Secondly, the AQMAU documents were part of the Agency’s decision-making process, prepared after a lengthy period of public consultation. If the Agency has to disclose its internal working documents for further public consultation, there is no reason why the process should ever come to an end.

45.  The reason why the Agency has not challenged the finding of procedural unfairness in relation to the AQMAU documents is that neither the judge nor the Court of Appeal regarded it as being, in all the circumstances, a sufficient reason for quashing the grant of the permit. The appellant says that they were not entitled to take this view. But I shall defer consideration of this question until I have dealt with Mr Wolfe’s argument based on the EIA directive, which I mentioned briefly in paragraph 14.

The EIA directive 85/337 EEC of 27 June 1985

46.  The EIA directive requires Member States to undertake an environmental impact assessment before giving consent to projects falling within the terms of Annex I or II. Projects in Annex I must always be assessed and those in Annex II must be assessed if they fall within certain criteria as to their environmental effect.

47.  The definition of a project in article 1 of the directive is:

“- the execution of construction works or of other installations or schemes,

- other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources”

48.  Annex I includes—

“10. Waste disposal installations for the incineration or chemical treatment as defined in Annex IIA to Directive 75/442/EEC under heading D9 of non-hazardous waste with a capacity exceeding 100 tonnes per day.”

49.  Annex II includes—

“11. (b) Installations for the disposal of waste (projects not included in Annex I);”

50.  Mr Wolfe submitted that the adoption of tyres as a fuel fell within one or other of these paragraphs. The application was to burn 10 tonnes of tyres an hour, which indicated that the plant had a capacity exceeding 100 tonnes a day.

51.  Like my noble and learned friend Lord Hope of Craighead, whose speech I have had the opportunity of reading in draft, I have very considerable doubt as to whether this can be right. The first indent of the definition of “project” — “the execution of construction works or of other installations or schemes” — appears to contemplate the creation of something new and not merely a change in the way existing works are operated. The German version — “die Errichtung von baulichen oder sonstigen Anlagen” — makes this even clearer. “Errichtung” means erection or construction and “Anlage” means an installation or plant. (The French version is “la réalisation de travaux de construction ou d'autres installations ou ouvrages “. )

52.  The second indent — “other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources” - clearly applies to activities, such as mining or quarrying, or dragging for cockles (Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C- 127/02) [2004] ECR-7405) which alter or destroy the natural environment. But this concept cannot easily be applied to changing the fuel in an existing installation.

53.  This distinction between the installation and the way it is used is in my opinion reinforced by two matters. First, the Annexes generally describe projects by reference to their purpose (in para 10 of Annex I, an installation for the incineration of waste) rather than the use to which they may from time to time be put. Secondly, the size of the installation is described by reference to its capacity (in para 10, over 100 tonnes a day) rather than the amount of waste actually incinerated. These features of the description both suggest that the relevant paragraphs are concerned with the creation of an installation of a particular size for a particular purpose rather than with the quantity of waste from time to time incinerated. No doubt the Lawford Road works had an enormous capacity in the sense that if the company had run it entirely on tyres, large quantities could have been incinerated. It would however be strange if the effect of that capacity, constructed for a different purpose, was that any use of waste as a fuel brought it within para 10 of Annex I.

54.  Mr Wolfe referred to Commission v Italy (23 November 2006) Case C-486/04, in which a power station fuelled by combustible material derived from waste and biomass had been built at Massafra in Apulia without any assessment under the EIA directive. The Court of Justice had no difficulty in holding that the plant came within paragraph 10 of Annex 1. It seems to me entirely reasonable to describe the project as having been the construction both of an installation for the incineration of waste and an installation for the generation of electricity. It fell within both descriptions. But the present case does not involve the construction of anything and therefore in my opinion falls outside the directive.

55.  Mr Wolfe says that it would be odd if one could build an installation which ran on, say, oil, and then change to using more than 100 tonnes a day of waste, without at either stage coming within paragraph 10 of Annex I. It should not be possible to achieve in two stages what could not lawfully be done in one. I do not however find this a startling anomaly. First, Annex I provides a rule of thumb which identifies in a rough and ready way those projects which must necessarily be assessed. It does not say that other projects or changes in existing projects may not have environmental effects which require assessment. In particular, the possibility of a change in the nature or use of an installation which makes an assessment necessary is covered by article 13 of Annex II:

“13. - Any change or extension of projects listed in Annex I or Annex II, already authorized, executed or in the process of being executed, which may have significant adverse effects on the environment;”

56.  Secondly, the EIA is only one weapon in the European regulatory armoury for the protection of the environment. There are other directives dealing with, for example, pollution (the IPPC directive) and waste disposal (the Waste Incineration Directive 2000/76/EC). In considering whether there are gaps or anomalies, it is necessary to consider the system as a whole and not just the EIA directive. It is no coincidence that, as I shall later explain, the application under the regulations included all the information relevant to tyre burning which an environmental statement under the EIA would have required.

57.  In this case, if the introduction of tyres as fuel has to be accommodated within the EIA directive at all, the heading under which it would most naturally fall is a “change” in a project within the meaning of para 13 of Annex II. But there is a finding of fact, which I have already mentioned, that the change would not have significant adverse effects on the environment. Thus it seems to me that to construe paragraph 10 of Annex I to require an environmental assessment in addition to an application under the Regulations would be not purposive but pedantic.

58.  Nevertheless, although the point seems to me to be clear, I am not sufficiently confident that the Court of Justice would hold the same opinion to be able to say that the question is acte clair and I understand some of your Lordships to share this view. If therefore, a decision on the point was necessary for the determination of the appeal, I would propose a reference to the Court of Justice. But I do not think that it is necessary because, if the EIA directive applies, I have no doubt that its requirements were complied with. The PPC application in my opinion contained enough information about the proposal to burn tyres to satisfy the requirements of an environmental statement for the purposes of the EIA.

59.  It must be remembered that if the decision to grant the permit comes within the EIA directive at all, it does so only because of the introduction of tyres as fuel. It is that which must be assumed to have been the “project” for the purposes of the directive. The directive (in paragraph 4 of Annex 4) required the applicant for consent to provide—

“A description of the likely significant effects of the proposed project on the environment resulting from…the emission of pollutants…and a description by the developer of the forecasting methods used to assess the effects on the environment.”

60.  The use of tyre fuel could result in the emission of pollutants only from the main stack. So the criticisms which the appellant has made of the adequacy of the information about LLPS emissions are in this context irrelevant. I have already described the computer modelling exercise which was undertaken in relation to emissions from the stack. In my opinion this and the other information provided in the application amply satisfied the requirements of paragraph 4 of Annex 4. Mr Wolfe attempted to enlarge the applicant’s obligations by reference to a footnote to paragraph 4 which says that the description of the effects of the project must include “cumulative” effects. But assuming that “cumulative” can mean the effects of the project together with the effect of anything else having an effect on the environment, precisely such a description was given by the modelling exercise, which described the contribution of the emissions from the main stack to the ambient air.

61.  In Commission of the European Communities v Federal Republic of Germany (Case C-431/92) [1995] ECR I-2189 the German authorities gave consent to the construction of a power station without requiring the submission, eo nomine, of an environmental statement. (At that time the EIA directive had not yet been transposed into German law). Instead, the authorities required and published the information specified by the Bundesimmissionsschutzgesetz (Federal Pollution Protection Law). The Court of Justice found that as this information coincided with that required by the EIA directive and the public had been given the opportunity to make representations about it, the requirements of the directive had been satisfied. The same is in my opinion true of the application in this case. No doubt more information could have been provided, but the observations of Sullivan J in R (Blewett) v Derbyshire County Council [2004] Env LR 29 at para 41, which I have quoted in paragraph 38, show that this does not make the statement inadequate. I should add that this is not a case like Berkeley v Secretary of State for the Environment [2001] 2 AC 603 in which the alleged environmental statement had to be pieced together from a number of documents emanating from different sources. The application itself, emanating from the applicant as the EIA directive requires, was perfectly adequate.

Remedy for breach of common law duty of consultation

62.  That brings me, finally, to the question of whether the judge and the Court of Appeal were right to refuse relief for the one procedural irregularity which they found established, namely the failure to publish the two AQMAU reports.

63.  It is well settled that “the grant or refusal of the remedy sought by way of judicial review is, in the ultimate analysis, discretionary” (Lord Roskill in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 656.) But the discretion must be exercised judicially and in most cases in which a decision has been found to be flawed, it would not be a proper exercise of the discretion to refuse to quash it. So in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 it was conceded, and the House decided, that the Court of Appeal had been wrong to refuse to quash a planning permission granted without the impact assessment required by the EIA directive on the ground only that the outcome was bound to have been the same. The relevant domestic legislation provided that in such a case the grant of permission was to be treated as not within the powers of the Town and Country Planning Act 1990. Lord Bingham of Cornhill said (at p.608) that even in a domestic context, the discretion of the court to do other than quash the relevant order “where such excessive exercise of power is shown” is very narrow. The Treaty obligation to give effect to European law reinforces this conclusion. I made similar observations at p. 616. But I agree with the observation of Carnwath LJ in Bown v Secretary of State for Transport, Local Government and the Regions [2004] Env LR 509, 526, that the speeches in Berkeley need to be read in context. Both the nature of the flaw in the decision and the ground for exercise of the discretion have to be considered. In Berkeley, the flaw was the complete absence of an EIA and the sole ground for the exercise of the discretion was that the result was bound to have been the same.

64.  In the present case, by contrast, there was no breach of European law and the only breach of domestic law was the failure to disclose information about the predicted effect of LLPS emissions of PM10 on the EQS. Since then, however, the actual emissions from the plant have been monitored. In August 2004 the company produced a report in accordance with condition of its licence (see paragraph 24 above). Rugby Borough Council commissioned consultants, Faber Maunsell, to make a detailed assessment of particulate emissions around the works. They produced a report in 2005. Both reports confirmed that the EQS was not being exceeded. Faber Maunsell recommended that the Council should not designate an air quality management area around the works for PM10. The Council has accepted this advice. In November 2007 they published a draft Air Quality Action Plan which designates Rugby an Air Quality Management Area in respect of nitrogen dioxide (mainly caused by road traffic) but not in respect of PM10. The Plan says “studies have shown no exceedances as a result of the Cemex plant or their operations of the PM10 National Air Quality Objectives.”

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