COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE HONOURABLE MR JUSTICE LINDSAY
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE RIX
THE RIGHT HONOURABLE LORD JUSTICE MAURICE KAY
| DAVID EDWARDS
|- and -
|THE ENVIRONMENT AGENCY
THE FIRST SECRETARY OF STATE
SECRETARY OF STATE FOR THE ENVIRONMENT FOOD AND RURAL AFFAIRS
CEMEX UK CEMENT LIMITED
(formerly RUGBY LIMITED)
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr David Elvin QC and Ms Kassie Smith (instructed by The Environment Agency & The Treasury Solicitor) for the Respondent
Mr Nigel Pleming QC and Mr Stephen Tromans (instructed by Rugby Ltd Legal Department) for the Interested Party
Crown Copyright ©
"[t]he maximum predicted contribution to ambient concentrations of the particulate matter is insignificant in terms of both the ambient air quality and the assessment criteria."
The application also contained information on the measures proposed to prevent or minimise the emissions.
" Almost without exception, the representations received during this consultation focused on the proposed use of tyres as a fuel much of the emphasis of the consultation related to the potential health effects of the use of tyres at the installation. "
" conditions can be included in the Permit that will ensure that the operation of the Installation will be controlled by the application of all appropriate preventative measures, particularly through the application of Best Available Techniques to ensure that emissions are prevented or, where that is not practicable, that they, and the Installation's impact on the environment as a whole, are reduced and that no significant pollution is caused."
The Agency, in paragraph 1.4 of the Document, explained that if, and only if, a trial established that it would cause no net environmental detriment compared with the "baseline" for conventional fuels already in use, Rugby Ltd could proceed to permanent use without further application. In paragraph 1.8 of the Document, it recorded:
" the Agency has satisfied itself (subject to satisfactory completion of the trial) that the use of tyres in partial substitution for coal and petroleum coke will not cause any net environmental detriment to the emissions such that the environmental impact of the Installation is materially increased, and the trial may therefore proceed, subject to those additional conditions deemed appropriate by the Agency for the specific circumstances of the trial. Indeed, the Agency anticipates that any measurable environmental effect of the use of tyres as fuel at the Installation is likely to be positive. "
" it is plain, as Mr Wolfe's switch away from tyre burning as the principal ground of complaint hints at, that tyre burning in itself as a fuel has no significant adverse effects on the environment and, indeed, overall may even have beneficial effects on the environment."
" it is important to have in mind that it was Aqmau 1 and Aqmau 2 that brought out that for objectors to concentrate only on the burning of chipped tyres was likely to be unrewarding for them and that the area of greatest vulnerability of the PPC application was that of the emission into the air of those small particulates which it is convenient to call PM10 particulates, in particular the emission of them not from the main stack but from sources far closer to the ground . Objectors, if I may so put it, had a far better tree to bark up than the burning of tyres and had they seen Aqmau 1 or Aqmau 2 before the decision document they would have understood that. If I may switch metaphors, the Aqmau reports could only have been important cards; should they not have been laid face up on the table even before judicial review was sought?"
The EIA Directive
" the assessment of the environmental effects of those public and private projects likely to have significant effects on the environment."
"2.1 Member states shall adopt all measures necessary to ensure that before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature size or location are made subject to the requirements of development consent and an assessment with regard to their effects. These projects are defined in Article 4. "
"the execution of construction works or other installations or schemes,
other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources:"
And "development consent" is defined in Article 1.2 as:
" the decision of the competent authority or authorities which entitles the developer to proceed with the project"
"(a) a case-by-case examination, [and] or
(b) thresholds or criteria set by the Member State
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. "
1) Rugby Ltd's proposal is a "project" as described in Article 1.2 and as prescribed by Article 2.1 by reference to Annex II, requiring "development consent", and, therefore, requiring the Agency to consider calling for, or undertaking, an environmental assessment within Articles 5 10, which it did not do;
2) Rugby Ltd's proposal to burn waste tyres in partial substitution for existing conventional fuels at the plant was not a "material change of use" under domestic law and so did not trigger a need for planning permission or a need for an environmental impact assessment under domestic law; but
3) such an obligation arose as a matter of EU law because the United Kingdom, by providing in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 SI 1999/23) ("the EIA Regulations") for an environmental impact assessment to be carried out as part of an application for planning permission, but not also in respect of a discrete process for consideration of applications for PPC permits, has not properly implemented the EIA Directive; and
4) the Agency is, therefore, in breach of the Directive, which has direct effect, in not considering whether to call for or undertake such an assessment.
1) whether or not the proposal to burn tyres is a "project" as defined in Article 1.2, it is not a project listed in Annex II, so as to require "development consent" pursuant to Article 2.1 or, for that purpose, to consider calling for, or undertaking, an environmental assessment in accordance with Articles 5 10;
2) the United Kingdom's domestic planning procedures are an adequate and apt vehicle for the implementation of the Directive's requirements as to environmental impact assessments within Articles 2.2 and/or 2.2a, and there was no requirement under United Kingdom domestic law to obtain such an assessment because no material change of use requiring modification of the existing planning permission was sought, a stance already expressly taken by the Agency, in its Decision Document, at paragraphs 10.37 10.42; and, in any event
3) had the Directive's requirements to consider calling for, or undertaking, an environmental impact assessment been applicable to the Agency's consideration of Rugby Ltd's application, the information and environmental statement provided by Rugby Ltd to the Council in its application for planning permission, the information provided with this application to the Agency and the public consultation on it undertaken by the Agency had substantially complied with those requirements.
Para 11(b) "Installations for the disposal of waste "
Para 13 "Any change or extension of projects listed in Annex I or Annex II, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment ", in particular paragraph 5(b) of Annex I, ("Installations for the manufacture of cement").
"57. In some circumstances waste may be disposed of in a process which results in an outcome beyond the mere disposal of the waste, but where the disposal of the waste is the paramount object of the exercise. The fact that methane gas is recovered from a waste tip will not necessarily convert the land use from that of waste disposal to that of gas production. The recovery of gas may be no more than incidental or ancillary to the disposal of the waste. In such circumstances the use of the land can properly be described as waste disposal.
58. In some circumstances an operation may involve a nice balance between the objective of waste disposal and the ultimate objective of the operation. In those circumstances it may be correct to hold that the land is being subjected to two uses, waste disposal and the ultimate objective. The burning of slaughtered cattle in power stations may be an example of such a situation."
Lord Phillips added that, in the circumstances of that case, to postulate that the designation of the fuel in question as waste resulted in a separate use of land was unreal. As Pill LJ also observed, at paragraphs 92 to 95 of his judgment, whilst waste disposal used as a process to facilitate a manufacturing process may result in two distinct planning uses
"the mere fact that a fuel used in the manufacturing process is classified as waste does not of itself necessarily lead to the conclusion that the use of the fuel creates a land use distinct from that of manufacturing".
He concluded that, in the circumstances of that case, disposal by use as fuel should properly be categorised as "an integral part of the process of lime manufacture".
Non-implementation of the Directive.
"any consideration of the quality of land, air or water and potential impacts arising from development, possibly leading to impacts on health, is capable of being a material planning consideration, in so far as it arises or may arise from or may affect any land use."
Substantial compliance with the EIA Directive
" - a description of the project comprising information on the site, design and size of the project,
- a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,
- the data required to identify and assess the main effects which the project is likely to have on the environment,
- an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects,
- a non-technical summary of the information mentioned in the previous indents. "
" (g) the nature, quantities and sources of foreseeable emissions from the installation or mobile plant into each environmental medium, and a description of any foreseeable significant effects of the emissions on the environment.
(h) the proposed technology and other techniques for preventing or, where that is not practicable, reducing emissions from the installation or mobile plant;
(i) the proposed measures to be taken to monitor the emissions;
(j) a description of the measures to be taken for the prevention and recovery of waste generated by the operation of the installation or mobile plant;
(p) a non-technical summary of the information referred to in the previous sub-paragraphs."
" in any event the Agency has taken into account, both generally and in relation to the use of tyres, the issues that would generally have been identified by any Environmental Statement, had one been required, so far as is permissible within the PPC regulatory regime."
In the remainder of that paragraph and in paragraph 10.39, it set out, one by one, those issues or matters and the circumstance amounting, in its view, to compliance with them had an environmental impact statement been required, namely -
"The Agency is satisfied that the Application substantially complied with the requirements of Article 5(3) and Annex IV of the EIA Directive."
"I said in R v North Yorkshire County Council, Ex p Brown  1 AC 397, 404 that the purpose of the Directive was 'to ensure that planning decisions which may affect the environment are made on the basis of full information'. This was a concise statement, adequate in its context, but which needs for present purposes to be filled out. The Directive requires not merely that the planning authority should have the necessary information, but that it should have been obtained by means of a particular procedure, namely that of an EIA. And an essential element in this procedure is that what the Regulations call the 'environmental statement' by the developer should have been 'made available to the public' and that the public should have been 'given the opportunity to express an opinion' in accordance with article 6(2) of the Directive."
General conclusion with regard to the EIA Directive
The PPC Regulations
"63. The [AQMAU] reports were on subjects to which the Agency could (and, at least arguably should) have required information from the Site Operator as part of or as a supplement to its application and which, had the information been acquired in that way, would have been disclosed. Abuse would obviously be possible if disclosure could be avoided by the simple expedient of the Agency doing that which should have been done by the Applicant . "
He added, in paragraph 64, that, if the Agency had, in the light of AQMAU 1 and/or 2, sought further information in the form of air modelling from Rugby Ltd on the likely environmental effects of low level emissions of dust, that information would have had to be provided to consultees in accordance with paragraph 1(1)(g) of Schedule 4 to the Regulations. He described the Agency's failure in that respect as "a real shortcoming".
Conclusions on the PPC Regulations
Common law duty of fairness
" consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."
" What is fair procedure is to be judged in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who served the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise. This is an integral part of the decision-making process itself; it is not to be equiperated with the minister receiving evidence, expert opinion or advice from sources outside the department after the local inquiry has been closed.
Once he has reached his decision he must be prepared to disclose his reasons for it, but he is, in my view, under no obligation to disclose to objectors and give them an opportunity of commenting on advice, expert or otherwise, which he receives from his department in the course of making up his mind. If he thinks that to do so will be helpful to him in reaching the right decision in the public interest he may, of course, do so; but if he does not think it will be helpful and this is for him to decide failure to do so cannot in my view be treated as a denial of natural justice to the objectors."
"Fairness also requires that the objectors should be given sufficient information about the reasons relied on by the department as justifying the draft scheme to enable them to challenge the accuracy of any facts and the validity of any arguments on which the departmental reasons are based."
"There has been no corresponding indication to Mr Edwards or the public generally that there is a continuous consideration of any corresponding kind or that the Agency would be willing to consider objectors' views deriving from Aqmau 1 and Aqmau 2 in the course of any such continuous consideration."
"62. For these reasons I cannot regard Bushell as supporting any invariably applicable general proposition that a governmental decision-making body, which is under an express or implied duty to act fairly in the course of whatever consultation it is required to conduct in relation to its decision, need never disclose the advice, expert or otherwise, which it receives from those within it in the course of arriving at its decision. Rather Bushell is authority for a view that consultation must be fair to those who have an interest in it : what is fair depends on the nature of the subject matter To paraphrase Lord Diplock's remarks and translate them to this case, fairness requires that objectors should be given sufficient information to enable them to challenge the accuracy of any facts and the validity of any argument which can be seen by the decision-making body as truly likely to be influential in its decision-making process. Plainly qualifications may need to be added to regulate the disclosure of confidential material, nor need there be disclosure of what is already conveniently available or of that which it is known the objectors already have. But I would not see Bushell as always and indisputably justifying non-disclosure where the only grounds asserted are that the material in question was generated only internally by the decision-maker or that it came to light only after a shift from consultation to decision-making.
"63. In other words, I do not see Bushell as barring a situation in which the factors against disclosure, including the ones I have mentioned, can, in the surrounding circumstances, be overborne by the broad requirement of fairness and to the intent (as is part of fairness) that consultation shall be on a reasonably informed basis on both sides and not some courtly charade concerned more with appearance of discussion and interplay than with real dialogue. "
"63. Here the Aqmau reports (as I think I can infer) were commissioned with a view to at least the second being assessed by the Agency as part of its consideration of the Site Operator's application; they were on subjects various classes of air modelling which were highly specialised in their nature, so specialised that the Agency called in its own specialist team to deal with the subject. The reports broke new ground; they were not merely verifying or testing material in the application itself or material already received from consultees, objectors or the public generally. Were they not to be disclosed others would not know either that they existed or that they or either of them were to be taken into account by the Agency. They raised subjects important to an adequate assessment of the application and which, unprompted by either the knowledge that the Agency was investigating the subjects or of what the reports said, were subjects which the consultees and objectors could well fail to examine for themselves, deterred, perhaps, by the probable expense of themselves investigating them. Nor were the conclusions in the Reports so clear and categoric, so incontestably right, that consulting upon the reports was plainly redundant in the sense that consultation could usefully add nothing to them nor subtract anything from them. Moreover, apart from added delay to a process that was already extensive, it is difficult to see what prejudice could be suffered by the Agency or (delay apart) by the Site Operator were there to be disclosure. The reports were on subjects as to which the Agency could (and, at least, arguably should) have required information from the Site Operator as part of or as a supplement to its application and which, had the information been acquired in that way, would have been disclosed. Abuse would obviously be possible if disclosure could be avoided by the simple expedient of the Agency doing that which should have been done by the Applicant. On the footing that the first report was, indeed, merely a draft, in these circumstances the arguments against disclosure are, in my judgment, overborne; it should have been indicated by the Agency that the second report existed and, broadly, what it said, and had a sight of it then been requested (as undoubtedly would have been the case), then it should have been disclosed to such consultees or objectors as required it.
64. In my judgment, firstly, Aqmau 1 should have been disclosed unless (as there was not) there was an intention to disclose a final report; and, secondly, Aqmau 2 should have been disclosed. After all, as I have touched on already, if the Agency, as it could and at least arguably should have done once it had received Aqmau 1 and had thus seen the vulnerability of the application on PM10 grounds, had requested the Site Operator as Applicant to conduct LLPS air modelling, the result would have had to be made known to consultees see Directive 96/61/EC Article 6, 5th bullet point and the PPC Regulations 2000 Schedule 4, Part 1, para 1(1)(g). To this extent there was, in my judgment, a real shortcoming in the Agency's conduct; what the consequences of that might be I shall need to consider under the heading of "Relief", which I shall come on to below."
Conclusions on common law duty of fairness
Discretionary refusal of relief
1) there was no indication that Rugby Ltd in its operation of the plant had breached any EU or domestic air requirements or that it was likely to do so given the regulatory regime to which it was and would be subject;
2) even if there had been or were to be any such breach, those in the area, including Rugby Borough Council, in its environmental health role, would have powerful sanctions to prevent it, including remedies in public and private nuisance;
3) it would be massively and disproportionately prejudicial to Rugby Ltd, which was not at fault in respect of the Agency's shortcomings in disclosure in the consultation process, to annul its PPC permit and thereby to shut down an operation the contribution of which to overall pollution in the area was insignificant;
4) the lack of any significant contribution by the plant to overall pollution in the area;
5) the unfairness to Rugby Ltd in the way in which the claimants had conducted their case, switching the focus only at the last minute from the proposal to burn waste tyres to the low level emissions of dust;
6) the appellants' ability to comment or complain in the consultation process about the emissions of low level dust in the light of their own expert advice at the time; and
7) the Agency's bona fide belief, albeit in error, that it had no obligation to disclose the AQMAU advice as part of the consultative process.
Conclusion on discretionary refusal of relief
Lord Justice Rix:
Lord Justice Maurice Kay
Note 2 Replacing the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, which were in force in 1996 at the time of the grant of planning permission for the plant in 1996 [Back] Note 5 The issue of material change of use and transposition in infraction proceedings in that case is to be argued shortly before the ECJ, but it does not bear on the issue in this appeal, which concerns an executed installation subject only to the re-permit regime. Therefore, there is no need for a reference. [Back] Note 8 See regulation 9 of, and paragraphs 2(1) and 6 of Schedule 3 to, the PPC Regulations and regulations 3 and 3A of the Environmental Protection (Prescribed Processes and Substances) Regulations 1991 [Back]
Note 2 Replacing the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, which were in force in 1996 at the time of the grant of planning permission for the plant in 1996 [Back]
Note 5 The issue of material change of use and transposition in infraction proceedings in that case is to be argued shortly before the ECJ, but it does not bear on the issue in this appeal, which concerns an executed installation subject only to the re-permit regime. Therefore, there is no need for a reference. [Back]
Note 8 See regulation 9 of, and paragraphs 2(1) and 6 of Schedule 3 to, the PPC Regulations and regulations 3 and 3A of the Environmental Protection (Prescribed Processes and Substances) Regulations 1991 [Back]