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

(back to preceding text)

65.  Thus the relevance of the AQMAU reports has been completely overtaken by events. We no longer need to rely upon predictions. We know what has actually happened. As Auld LJ said in the Court of Appeal (at para. 126) “it would be pointless to quash the permit simply to enable the public to be consulted on out-of-date data.” To this pointlessness must be added the waste of time and resources, both for the company and the Agency, of going through another process of application, consultation and decision. In my opinion, therefore, the judge and the Court of Appeal were right to exercise their discretion against quashing the permit. I would dismiss the appeal.

Postscript

66.  On 23 January 2008 the hearing in this appeal was concluded. On Friday 4 April 2008, after the members of the Appellate Committee had prepared drafts of the speeches which they proposed to deliver, the solicitors to the parties were notified that judgment would be given on 9 April. In accordance with the practice of the House, copies of the draft speeches were provided in confidence with a request that counsel check them for “error and ambiguity". On Monday 7 April the appellant’s solicitors notified the Judicial Office that they proposed to submit a memorandum pointing out errors in the judgments but that it could not be submitted until the following morning. Judgment therefore had to be postponed until 16 April. The memorandum when it arrived, consisted of 27 paragraphs of closely typed submissions referring to three directives which had not been mentioned in the appellant’s lengthy submissions to the House and repeating other arguments which had already been considered. It contains nothing which causes me to wish to change the views expressed in my draft speech. In my opinion the submission of such a memorandum is an abuse of process of the procedure of the House. The purpose of the disclosure of the draft speeches to counsel is to obtain their help in correcting misprints, inadvertent errors of fact or ambiguities of expression. It is not to enable them to reargue the case.

GLOSSARY

Agency        The Environment Agency

AQMAU        Air Quality Modelling Assessment

          Unit (a unit within the Agency)

AQMAU 1        AQMAU report dated 21 November

          2002.

AQMAU 2        AQMAU report dated 7 January

          2003.

Air Quality Directive    Council Directive of 27 September

           1996 on ambient air quality

           assessment and management

          (96/62/EC)  

BAT    best available techniques (see para 6 and regulation 11(2))

EIA          environmental impact assessment

          (required by the EIA directive).

EIA directive        Council Directive of 27 June

           1985 on the assessment of the effects

          of certain public and private projects

          on the environment (85/337/EEC)

ELV    emission limit value (see para 4 and regulation 12(2) and (6))

EP    electrostatic precipitators (see para 13)

EQS    environmental quality standard (see para 4 and regulation 12(7))

IPPC directive      Council Directive of 24 September

          1996 concerning integrated pollution

          prevention and control (96/61/EC)

    

LLPS          low level point sources (see para 11)

mg/m3          milligrams per cubic metre

g/m3         micrograms (millionths of a gram)

          per cubic metre

PM10    Technically, “particulate matter which passes through a size-selective inlet with a 50% efficiency cut-off at 10 m [10 microns or millionths of a meter] aerodynamic diameter". Roughly speaking, particles of less than 10 m diameter.    

regulations  The Pollution Prevention and Control (England and Wales) Regulations 2000 SI 1973

LORD HOPE OF CRAIGHEAD

My Lords,

67.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons he gives I too would dismiss the appeal.

68.  Like him, I very much doubt whether the proposal to use shredded tyres in partial substitution for the conventional fuels for the burning of which the plant had already been authorised brought the project within Annex I of the EIA Directive, with the consequence that an environmental impact assessment in accordance with articles 5 to 10 of the Directive was mandatory under article 4(1). The appellant submits that the effect of this proposal was to change the project from an installation for the manufacture of cement within the meaning of point 5(b) in Annex II to a waste disposal installation for the incineration of non-hazardous waste, and that as its capacity was to exceed 100 tonnes per day it falls within point 10 in Annex I. But it seems to me, reading the EIA as a whole, that the category into which this proposal falls is that of a change to a project listed in Annex II which has already been authorised within the meaning of point 13 in Annex II.

69.  The definition of “project” in article 1 appears to contemplate the construction of something new, not a change to an installation or scheme which already exists. Changes to existing projects are dealt with elsewhere in the Directive: see point 22 in Annex I and point 13 in Annex II. The words used to describe the various categories in Annex I and Annex II indicate that it is the purpose for which the installation to be used, not how it is to be fuelled, that determines the category that it falls into. The installation in this case, which has already been authorised, is one for the manufacture of cement. That remains its purpose, irrespective of which fuel is used to provide power for it. The fuel that is to be used is one of the characteristics of the production process, about which information must be given under article 5(1): see para 1 of Annex IV. But the purpose of the installation is not to burn fuel. Its purpose is the manufacture of cement. Point 22 of Annex I brings into Annex I any change or extension of projects of the kind listed in that Annex where such change or extension in itself meets the thresholds, if any, set out in that Annex. The capacity of an installation for the disposal of waste is an example of the kind of project whose place in the Annexes is determined by its capacity: compare point 11(b) of Annex II with point 10 of Annex I. But the means by which a project is fuelled is not listed as one of the thresholds by which it is to be determined whether a project which was constructed for a different purpose falls within Annex I or Annex II.

70.  The scope of the Directive has been held to be very wide and its purpose very broad. So the concept of waste disposal in point 10 of Annex I must be given a meaning which fully satisfies the objective of the Directive. It has been held to cover all operations leading either to waste disposal, in the strict sense of the term, or to waste recovery where waste is treated in a way that enables it to serve a useful function: Commission v Italy (Case C-486/04) [2006] ECR I-11025. The dispute in that case had its origins in Italian legislation which allowed for the exemption of waste recovery operations from the application of the EIA Directive: Advocate General Colomer, para 28. The Court held that the incineration of waste to generate electricity was waste disposal, and that a project for the generation of electricity by the incineration of waste with a capacity exceeding 100 tonnes per day fell into the category of a waste disposal installation for the incineration of non-hazardous waste in point 10 of Annex I. Had it not been for its capacity, the project would have fallen into the category of an industrial installation for the disposal of waste of the kind not included in Annex I: see point 11(b) of Annex II.

71.  But the project in that case was classified as an installation for waste disposal because its purpose was to generate electricity by the recovery of waste. It offers no assistance on the question whether a project which falls within another category at the outset must be taken to have moved to a waste disposal category because of a change in the fuel that is used for its purposes. The rules by which the effect of any change to a project is to be determined are set out in points 22 of Annex I and point 13 of Annex II. It has not been suggested that point 22 of Annex I applies to this case. The conclusion that I would draw is that the case falls to be dealt with under point 13 of Annex II, with the result that the question whether the change of fuel required an EIA must depend on whether this might have significant adverse effects on the environment.

72.  I appreciate that this reading of the Directive is not so plain as to enable it to be said that the matter was acte clair. But I agree with Lord Hoffmann that enough information was given in the PPC application to satisfy the requirements of an EIA within the meaning of article 3 of the Directive. On this view a preliminary ruling by the Court of Justice on this issue for the determination of the appeal is unnecessary.

73.  I should like to add that I am in full agreement with the postscript to Lord Hoffmann’s speech. The appellant’s solicitors took the liberty of making further submissions after the hearing was concluded and while the case was awaiting judgment. They, and the comments on them by the other parties, were considered before the judgment was finalised. Direction 38.1 of the House of Lords Practice Directions applicable to Civil Appeals provides for this. The opportunity to submit further arguments is at an end when the parties are provided with copies of the draft speeches under direction 20.3. Counsel are expected to inform the Judicial Office of any apparent error or ambiguity in the speeches as soon as possible: direction 20.4. The memorandum which was submitted purported to be devoted to the correction of errors and ambiguities. But in substance it was an attempt to re-submit submissions already made and to make new submissions. It was an abuse of the procedure.

LORD WALKER OF GESTINGTHORPE

My Lords,

74.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, with which I agree, I too would dismiss this appeal.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

75.  I have had the advantage of reading in draft the opinions of the other members of the Committee and, like them, I too would dismiss this appeal.

76.  I add only that, immaterial though this is to the outcome of the appeal, I incline rather to the view of my noble and learned friend Lord Mance than to that of the other members of the Committee regarding both (a) whether a requirement exists under the Pollution Prevention and Control (England and Wales) Regulations 2000 SI 1973 for any significant (a word I would emphasise) information, even if only informally obtained by the Agency, to be published in the public register, and also (b) whether the change to tyre burning in the company’s manufacturing operation constituted a project within paragraph 10 of Annex I rather than a change of project within paragraph 13 of Annex II of the Environmental Impact Directive 85/337/EEC.

LORD MANCE

My Lords,

77.  I have had the advantage of reading in draft the opinions of my noble and learned friends, Lord Hoffmann and Lord Hope of Craighead. While I agree with them that this appeal should be dismissed, my reasoning differs in certain respects.

Integrated Pollution Prevention and Control Directive 96/61/EC and UK Pollution Prevention and Control (England and Wales) Regulations SI 2000/1973

78.  For the reasons given by Lord Hoffmann in paragraphs 27 to 30 as well as the last two sentences of paragraph 41 of his opinion, I agree that the European Community’s Directive 96/61/EC does not cover the present situation or assist the appellant. However, as Lord Hoffmann points out in paragraph 31, the United Kingdom Regulations SI 2000/1973 go further than the Directive, in not distinguishing between existing and new installations. Regulation 29 requires the Agency to maintain a public register containing the particulars described in paragraph 1 of Schedule 9. Paragraph 1 requires the register to contain “(a) all particulars of any application made to the regulator for a permit; (b) all particulars of any notice to the applicant by the regulator under paragraph 4 of Schedule 4 and paragraph 3 of Schedule 7 and of any information furnished in response to such a notice; ….". Under paragraph 1 of Schedule 4, an application for a permit must contain, inter alia, “the following information: ….. (g) the nature, quantities and sources of foreseeable emissions form the installation ….; (h) the proposed technology and other techniques for preventing or, where that is not practicable, reducing emissions from the installation ….". Under paragraph 4:

“The regulator 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 and if the applicant fails to furnish the specified information within the period specified the application shall, if the regulator gives notice to the operator that it treats the failure as such, be deemed to have been withdrawn at the end of that period.”

Schedule 7 paragraphs 1 and 3 are similar provisions relating to information and the regulator’s power by notice to require further information relating to any application for variation of conditions.

79.  I agree that the AQMAU documents were neither particulars of the application nor information obtained from the applicant company. But the Agency obtained from the company further information about low level emissions points, about the company’s projections and other matters at a site visit and in writing, to enable AQMAU to undertake its work and to report as it did, and none of this information was made available to the public for comment. Lord Hoffmann considers that there was no obligation to make any such information available in the register for public scrutiny, because the Agency, rather than finding it necessary to issue a written notice requiring it to be furnished, was able to obtain it informally.

80.  There is nothing express in the Regulations to preclude the Agency obtaining information from an applicant informally. But if there were no obligation to publish information so obtained, it would create a remarkable lacuna in the intended regulatory scheme. I cannot accept that this is the case. The two paragraphs (Schedule 4 paragraph 4 and Schedule 7 paragraph 3) giving the Agency a power to serve a written notice requiring information must be read purposively. Both are linked with the stated consequence that, if such information is not provided, the Agency may treat the application as withdrawn. The service by the Agency of a formal written notice under either paragraph is likely to have been regarded as a last resort. In the ordinary run, the Agency would be likely to request and receive information informally, without having to wield a stick. But information relating to a subject-matter mentioned in paragraph 1(1)(g) or (h) of Schedule 9 is just as relevant to the public as any information contained in the original written application or furnished under the threat of the application being treated as withdrawn. The requirement under paragraph 1 of Schedule 9 is to publish “all particulars of any application", not confined to particulars in the application. In my opinion paragraph 1 can and should be read as covering information obtained informally from the company relating to any subject-matter mentioned in paragraph 1(1)(g) or (h) of Schedule 9. So read, the regulatory scheme is coherent. Otherwise, it makes little sense. The only alternative that would make sense is that it was intended that all information should be obtained formally by written notice under Schedule 4 paragraph 4 (or Schedule 7 paragraph 3). In that case, again paragraph 2 of Schedule 9 would require its publication.

81.  On this basis there was a breach of the United Kingdom Regulations, although not of the Directive. However, it is not a breach in respect of which I consider that any remedy is appropriate as a matter of discretion. The considerations which Lord Hoffmann identifies as militating against any relief in respect of the failure, in breach of common law duty, to disclose the AQMAU reports for public consideration (paragraphs 64-65) apply with equal force to any failure to publish under Schedule 9 such information as was obtained from the company. Indeed, any assistance that the public might have obtained from the raw information supplied to the Agency for the purpose of AQMAU’s preparation of its reports would have been considerably less than that which the reports themselves might have provided. Be that as it may, events have long overtaken the relevance of both, and it would be inappropriate to grant the relief sought.

Environmental Impact Directive 85/337/EEC

82.  Both Lord Hoffmann and Lord Hope discuss the question whether the change to tyre burning constituted a project within Annex I, and both express considerable doubt whether it did, while accepting that, if the point were critical, it would not be acte clair and would have to be referred to the European Court of Justice. They go on to conclude that the point is not decisive, because the information supplied by the application satisfied the requirements of the Directive. On the last point (satisfaction of the Directive by the information actually supplied), I agree.

83.  However, had it been relevant, I would have regarded it as probable that the change to tyre burning would have brought the project within Annex I paragraph 10 (rather than Annex II paragraph 13) of Directive 85/337/EEC. I say this for a combination of reasons. First, the language versions of Article 1 of the Directive that I have inspected appear to vary quite considerably. The German is the most sparse. But others with their various final references to “the execution of…..schemes” (English) or “the realisation of…..works” (French, Spanish, Dutch and Danish) are on their face more expansive. Further, both Annexes I and II list “projects” within article 1, and it seems clear from the nature of some of these projects that activities not involving construction works may be “projects": for example, in Annex II, intensive fish farming (paragraph 1(f)) , treatment of intermediate products and production of chemicals (paragraph 6(a)), manufacture or packing and canning of various products (paragraph 7) or storage of various items (paragraphs 3(c) and (e) and 11(e)).

84.  Second, the plan to change to tyre burning did in any event involve not inconsiderable physical adaptation of the company’s site and plant. This is described in part 4.1 of its detailed application to allow burning of tyres. They were to be discharged into a covered reception area, from which they were to be transferred by crane or mechanical conveyors into a storage area (holding up to 300 tons) fitted with smoke detectors linked with an alarm and with a water spray system. From there they were to be extracted mechanically and conveyed to a metering system inside the pre-heater tower and then fed to the combustion chamber via an airlock system. All this, including the vital combustion chamber was new.

85.  Third, the European Court has said repeatedly that “the scope of Directive 85/337 is very wide and its purpose very broad": see its decisions in Commission v. Germany (Case C-431/92) [1995] ECR I-2189, Commission v. Italy (Case C-486/04) [2006] ECR I - 11025, paragraph 37 and Paul Abraham v Région Wallonne (Case C-2/07) (28 February 2008), paragraph 32 The first case concerned a thermal power station, which in its unmodified form fell within Annex II (no doubt as an “industrial installation for the production of electricity, steam and hot water, unless included in Annex I”). A new block was constructed with a heat output of 500 megawatts. The Court held that this involved a project within Annex I paragraph 2, viz a “thermal power station with a heat output of 300 megawatts or more", rather than a modification of the existing power station within the then equivalent of Annex II paragraph 13 (para 36 of the Court’s judgment).

86.  The second case involved “an installation for the production of electricity by the incineration of [waste] and biomass” in excess of 100 tonnes a day (judgment of the Court paragraphs 22, 38 and 45). The Court held that it came within Annex I paragraph 10 (paragraph 45). So the ultimate purpose of the installation as a power station did not preclude it also counting as a waste disposal plant within Annex I. This being so, I believe that it is probable that the European Court of Justice would hold that the modification of an existing power plant so that it was fuelled by burning waste in excess of 100 tonnes per day had constituted a project within Annex I paragraph 10. If the purpose of waste disposal is not subsumed in the ultimate aim of power generation when such a plant is constructed, it seems improbable that it should be ignored when it is separately introduced at a later stage in time. The Court’s decision in Commission v. Italy contains a number of passages underlining a purposive approach to the application of Annex I. They focus on the “significant effects on the environment” which Annex I treats it as axiomatic that the burning of 100 tonnes or more of waste are likely to have. The purpose for which such burning takes place is in this context irrelevant. The same considerations apply to conversion of an existing installation to burning in excess of 100 tonnes of waste per day. I do not consider that the Court of Justice would be likely to regard paragraph 13 of Annex II as an adequate substitute for a uniform application of the stricter provisions of Annex I to what must, in terms of the likelihood of “significant effects on the environment” be regarded as identical situations.

87.  In the third case the Court was concerned with modification of an existing airport already exceeding 2100m in runway length and so already within Annex I, and held the modification to be within paragraph 12 (the equivalent at the relevant time of the present paragraph 13) of Annex II. The Court at paragraph 25 cited Commission v Spain (Case C-227/01); [2004] ECR I- 8253, where works to convert a regional railway (construction of which would itself have fallen within Annex II) into part of a long-distance route by doubling the track were held to constitute “Construction of….lines for long-distance railway traffic” within Annex I.

88.  None of the cases to which I have referred in paragraphs 85 to 87 throws any doubt on the view which I have expressed in paragraph 83 - rather the contrary. However, as I have indicated in paragraph 82, my disagreement on this point is not critical. For the reasons I have given, I too would dismiss this appeal.

 
Previous

Lords  Parliament  Commons  Search  Contact Us  Index 


© Parliamentary copyright 2008
Prepared 16 April 2008