England and Wales High Court (Administrative Court) Decisions

Furness & Ors v Thames Water Services Ltd [2001] EWHC Admin 1058 (17th December, 2001)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 December 2001

MR JUSTICE TURNER:

Introduction

1. This is an application for judicial review of the decision of the defendant (the Agency) which became effective 27 April 2001 by virtue of which the Agency granted Authorisation No BJ0048 to the Interested Party (TWS) for the incineration of municipal waste at Slyfield Green Industrial Estate, Guildford.

The dispute

2. The principal ground of challenge I arises out of the apparently complex arrangements for the transitional provisions between the former pollution control regime established by the Environmental Protection Act 1990 (IPC) and the current regime which was established by the Pollution Prevention and Control (England and Wales) Regulations 2000 (PPC). These Regulations which came into force on 1 August 2000 were made in order to transpose into United Kingdom municipal law Council Directive 96/61 /EC Integrated Pollution Prevention and Control (the PPC Directive. The subsidiary grounds of challenge relate to II the alleged failure to have regard to material considerations and III the incorporation of conditions into the authorisation which it is said were irrational and uncertain to the extent of not being within the range of decisions open to a reasonable decision taker.

History

3. On 17 July 2000 TWS applied for the authorisation which the Agency subsequently granted with effect from 27 April 2001. The application was expressly made under the IPC regime. The significance of which, for the purposes of the present case, is that before TWS could lawfully operate the plant for which it had thus obtained authorisation, a fresh authorisation under PPC would have to be applied for and granted; see Regulation 9 of The Pollution Prevention and Control (England and Wales) Regulations 2000. Here lies the core of the main dispute which the court is called upon to resolve. The claimants’ case was that since the authorisation which was granted was of no practicable use to TWS, because of the necessity to obtain a further authorisation under the 2000 Regulations before it could be allowed to operate, it was a futile exercise of executive power to issue an authorisation under IPC, and, therefore such authorisation should be quashed. The Agency and TWS (who although they submitted evidence, did not appear) contended that not only did the Agency act correctly under the transitional provisions, but also that if the court were to quash the authorisation, that would be a matter of no practical benefit to the claimants. Accordingly, the court should on that basis alone decline to grant any relief.

Statutory background

4. Part 1 of the Act of 1990 established a system of integrated pollution and air pollution control, originally to be managed by Her Majest’s Inspector of Pollution (HMIP) local authorities. Under the provisions of the Environment Act 1995 HMIP’s functions in this respect, relevant to the circumstances of the present case, were transferred to the Agency. In general terms, Part II of the Act of 1990, made provision for the control of waste on land and need not be further considered, at least at this stage. Section 2 of the Act empowered the Secretary of State to prescribe any process for the carrying on of which an authorisation could be required. It also empowered the Secretary of State to prescribe any substance, the release of which into the environment would be subject to control under the provisions of sections 6 and 7; see below. Section 3 enabled the Secretary of State to establish emission limits and quality objectives. In simple terms, the objectives of this part of the Act were to seek the prevention or minimisation of pollution due to the release of substances into any environmental medium (for part A processes subject to control by the defendant); section 4. Sections 6 and 7 set up the system of authorisations which are directly in play in these proceedings. Before setting out the relevant provisions of these sections, however, it is appropriate to provide an indication of the reasons underlying the changes to the pollution regime which were introduced by the Regulations of 2000.

5. As has already been noted, the immediate object of these Regulations was to transpose PPC Directive into our municipal law. The objectives of the Directive relevant to this case can be found in the Recitals:

8. … the objective of an integrated approach to pollution control is to prevent emissions into air, water or soil wherever this is practicable, taking into account waste management, and, where it is not, to minimise them in order to achieve a high level of protection for the environment as a whole;

14. … full co-ordination of the authorisation procedure and conditions between competent authorities will make it possible to achieve the highest practicable level of protection for the environment as a whole;

15. … the competent authority or authorities will grant or amend a permit only when integrated environmental protection measures for air, water and land have been laid down.

23. … the public must have access, before any decision is taken, to information relating to applications for permits for new installations or substantial changes and to the permits themselves, their updating and the relevant monitoring data.

6. The Directive introduced into its text the concept of “best available techniques” as meaning

The most effective and advanced stage in the development of activities and their methods of operation which indicate the practical suitability of particular techniques for providing in principle the basis for emission limit values designed to prevent and, where this is not practicable, generally to reduce emissions and the impact on the environment as a whole.

7. This concept, when incorporated into UK law replaced the concept of “best available techniques not entailing excessive cost” (BATNEEC) which is to be found in s7(4) & (7) of the Act of 1990; see below. The text of the Directive also required Member States to ensure that “no new installation” should be “operated without a permit issued in accordance with (the) Directive”. Article 5 required Member States to ensure that existing installations become compliant with its terms not later than eight years after the date upon which it became effective, that is 31 October 2007. It is also worth noting that Article 14 required Member States to take the necessary measures to ensure that the operator regularly informs (the Agency) of the results of the monitoring of releases and to inform without delay of any incident or accident which significantly affects the environment as well as to ensure that the operator adhered to the conditions of any permit.

8. Where relevant the Act of 1990 provides that

6.(1) No person shall carry on a prescribed process after the date prescribed … except under an authorisation granted by the enforcing authority and in accordance with the conditions to which it is subject.

(2)

(3)Where an application is duly made to the enforcing authority, the authority shall either grant the authorisation subject to the conditions required or authorised to be imposed by section 7 below or refuse the application.

(4) to (8)

7. (1) there shall be included in an authorisation –

(a) (specific conditions considered appropriate)

(b) such conditions as are specified in directions … under subsection (3) below and;

(c) such other conditions if any as appear to the enforcing authority to be appropriate;

…

(2)

(3)

(4) …. There is implied in every authorisation a general condition that, in carrying on the process to which the authorisation applies, the person carrying it on must use (BATNEEC) –

(a) for preventing the release of substances prescribed for any environmental medium into that medium or, where that is not practicable by such means, for reducing the release of such substances to a minimum and for rendering harmless any substances which are so released; and

(b) for rendering harmless any other substances which might cause harm if released into any environmental medium.

Part I of the Act of 1990 is to be repealed on a date to be set by the Secretary of State, but sections 6 and 7 remain in force for the time being.

9. Regulations made under the Act of 1990, included the Environmental Protection (Prescribed Processes and Substances) Regulations 1991 which included the requirement that processes, the description of which were included in the Schedule, were processes for which an authorisation was required, under the provisions of s6 of the Act of 1990, after “the prescribed date”. This was specified in Schedule 3 to these Regulations. Then, by paragraph 24 of Schedule 10 to the Regulations of 2000, under the cross heading Exclusion of prescribed processes under control of the (Regulations of 2000), a new paragraph 3A was inserted which provides

(1) Where a process which is being carried on under an authorisation requires a permit under the (Regulations of 2000) authorising the carrying on of that process in an installation … and an application is made …. Under those Regulations for the permit, that process shall, from the determination date for the installation … no longer be taken to fall within a description in Schedule 1.

(2) Where a process which is not being carried on under an authorisation requires a permit under those Regulations [i.e the Regulations of 2000] authorising the carrying on of that process in an installation … that process shall not be taken to fall within a description in Schedule 1 from the date on which the permit is required.

At this stage, it is only necessary to refer to the Explanatory Note to these Regulations which states that the Third Schedule contains the transitional provisions for bringing installations under the control of these Regulations over an eight year period and that they will supersede the controls in Part 1 of the Act of 1990 which will, consequently, “in due course be repealed”; see Annex 4 of the Practical Guide, as above.

Regulation 9 of the Regulations of 2000 provides that

(1) No person shall operate an installation … after the prescribed date for that installation … except under and to the extent authorised by a permit granted by (the Agency). [Emphasis added]

(2) In paragraph (1) the “prescribed date” means the appropriate date set out or determined in accordance with Schedule 3.

The prescribed date for a new installation was defined in Schedule 3(1) as

(a) where an application for a permit to operate the installation … is duly made before 1^st January 2001, the determination date for the installation …;

(b) where no such application is made, 1^st January 2001.

It is accepted that under the transitional arrangements applicable in the present case, the prescribed date was 1 January 2001. This has the consequence that, although the application was made before the Regulations of 2000 came into force, TWS could not lawfully operate the installation except “under and to the extent authorised” by the Agency. It necessarily is the case that, once these Regulations were in force, the only permit which the Agency could lawfully grant to enable the installation to operate was one which conformed to the requirements set out in those Regulations.

I Defective Jurisdictional Foundation

10. From the above it can be seen that whereas the Regulations of 2000 have 1 August 2000 as their date of commencement, there will be cases, of which the present is one, in which the application for a permit was made under what may be termed the ‘old regime’, that is before that date, but which, in the light of the period which was bound to elapse before the authorisation could have been granted, would not in fact be granted until after the commencement of PPC, and, as it happens, after the “prescribed date”; see above. It will be recalled that, under the provisions of s6(3) of the Act of 1990, where an application is duly made the Agency “shall either grant the authorisation … or refuse (it)”. It was the principal submission of the Agency that it had no option but to do as it did in the present case, although the effect of that authorisation was not, and could not have been, to authorise the operation of the installation to which the application related.

11. The position of the claimants was that this was an authorisation which the Agency had no power to grant whether under domestic or EC law. In so doing the Agency had ignored the provisions of the inserted paragraph 3A of the Regulations of 1991; see above. At a later stage in this judgment the issues of the proper construction of the relevant legislation will be addressed. For the present, however, it should be noted that the claimants advanced no less than seven reasons why the court should exercise its discretion to grant relief, even though the authorisation would have no direct effect on any of the claimants’ rights. It should be understood in this context that TWS had applied for planning permission for the construction and operation of the incinerator to which the application had been made to the Agency. Surrey County Council was due to decide that application on the Friday following the conclusion of submissions in this case. At the outset of the hearing the court was given to understand that its decision would be required in order that part of the mischief identified below would be met and neutralised. By the conclusion of the hearing, a different stance was taken and the court was no longer invited to announce its decision before a full consideration of the submissions even if that meant that the planning committee proceeded to determine the planning application. The reasons for this change of tack were not divulged. A consequence which inevitably follows from this is that it weakens the case which the claimants put that, in some way, the fact of the IPC authorisation strengthens the position of TWS in their planning application. The submission was, although lacking evidence in support, that planning authorities generally defer to pollution control authorities. That this is not so is well illustrated by the press release made by Surrey County Council on 24 April 2001 in which it correctly stated: [taken from p 936]

Surrey County Council has been informed that the Environment Agency has granted an Integrated Pollution Control (IPC) authorisation to the developers of the proposed energy from waste plant at Slyfield. Due to a change in legislation this authorisation is no longer sufficient and a new Pollution Prevention and Control (PPC) authorisation will be required. However the IPC decision provides information to inform the planning process.

***

Planning permission and the granting of a PPC authorisation are two independent processes which take into account different considerations. In deciding whether or not to grant planning permission, Surrey County Council will naturally examine the health and pollution issues that such an application raises. One of the organisations that will provide information to guide this is the Environment Agency but the granting of an IPC authorisation does not imply that all the necessary investigations have been undertaken. ........

12. It was also submitted that operators would generally find it easier to obtain finance if there has been an IPC authorisation. Further, the grant of an IPC authorisation creates an unfair competitive advantage to those (would be) operators who have obtained such an authorisation which is easier to obtain than one under PPC. Then it was submitted that the fact that an IPC authorisation had been granted would prejudice, presumably in the sense of predispose to, the grant of a PPC authorisation. Other reasons were advanced which were of so insubstantial a character that it is unnecessary to refer to them individually. It is enough to say that they were no more than make weight and is insufficient to displace the true legal position exemplified by the press release, as noted above.

Submissions (The jurisdictional point)

13. The principal point made by the claimants was that since the Agency had neither powers nor duties under section 6 of the Act of 1990 the purported authorisation was invalid. Coupled with this submission was the proposition that the Agency was unaware of the existence or effect of Paragraph 3A of the Regulations of 1991. The argument proceeded on the basis that processes which require authorisation under PPC shall from that time cease to be processes prescribed for the purposes of the Act of 1990. That this was the case, it was submitted was borne out by the fact that the Summary of the Authorisation stated at p2 of the document that

This process is prescribed by section 5.1 A(c)of the (Regulations of) 1991 (as amended).

It must be said, before anything else is considered, that this was an unhappy mis-quotation in relation to the actual statutory provision in question. What was clearly meant was

Chapter 5, section 5.1 Part A paragraph (c)

of the Regulations, as amended. But the important point of rhetoric which this assertion failed to notice was the reference in the relevant extract to the amendment of the Regulations, which could only have been a reference to those parts of the Regulations of 2000 which were concerned to amend the earlier Regulations. See the concluding paragraph of the Summary

It should be noted, however, that (TWS) will not be able to lawfully to carry out the authorised process pursuant to the authorisation. Rather it will need to apply for a permit pursuant to the (Regulation) of 2000.

14. It is idle to suppose, even if it were definitive, that the Agency could have been as ignorant of the amendment introduced by paragraph 3A as the claimants alleged. It is sufficient to note that the point as made was a bad one. Indeed, the Decision Document itself contains a passage which is devoted to the Interaction with Integrated Pollution Prevention and Control PPC and the Integrated Pollution Control (IPC) regimes. The Document at paragraph 2.3.5 includes the passage

A number of responses … suggested that the application should have been made pursuant to the (Regulations of 2000). Subsequent to this application the new PPC regime came into force. As a consequence of this new regime and in order for the proposed incinerator to operate the applicant must apply for and obtain a permit, from the Agency, as prescribed by (the Regulations of 2000).

The new (PPC) regime will broaden the current regime to take account of principally the following additional general principles:-

(a) Use (BAT) to prevent pollution

(b) Minimise waste and recycle where possible

(c) Conserve energy

(d) Prevent accidents and limit their environmental consequences

(e) Return the site to a satisfactory state after operations cease.

(f) Use of raw materials.

....

The fundamental requirements to ensure the protection of human health and the environment remain as stated in the IPC regime. As a general principle; the requirements prescribed by the IPC regime on the principles of BPEO [Best Practicable Environmental Option], air dispersion assessment and health risk assessment could be transposed into the new (PPC) regulatory regime. However it should be noted that if the applicant applies for a PPC permit, it will not be granted one unless the applicant fully satisfies the Agency as to the requirements of the PPC Regulations.

15. All that is ‘missing’ therefore is any explicit reference to the provisions of the added paragraph 3A to the Regulations of 1991. But the passage just quoted also correctly, in my judgment, identifies the extent to which there is overlap between the two regimes that is germane to the present application. In simple terms, the technical requirements of the incinerator will not be different, much if at all, under whichever of the two regimes is appropriate. The current regime takes the process of pollution control back at least one stage by requiring the Agency to consider its necessity, in terms of prevention by means of the elimination or reduction of all forms of pollution, rather than just the technical parameters of any particular installation. In this way it can been seen that the process of evaluation of the installation will provide a good indication whether or not a plant of such a character is likely to be able to meet the requirements of the Regulations of 2000. I find nothing that would justify the characterisation of such a process as ‘absurd’. I reject the submission.

16. The submission for the claimants proceeded along the following lines. Where, as here, the Agency was considering a ‘new process’ the grant of an authorisation under IPC control could never be a permission which would become effective; see Regulation 9, above. Ineluctably a PPC permission would be required before the plant could lawfully be operated. By granting an authorisation under IPC, the Agency was in breach of its duty under Article 249 of the Treaty of Rome not to exercise its powers in such a way as to prevent or seriously inhibit the achievement of the purpose of the PPC Directive.. By granting an authorisation, as has been seen, “to carry on an incineration process”, the Agency, as an emanation of the State, was acting in breach of its duty. Given that in its authorisation, the Agency had drawn attention to the fact, that the plant could not be operated until an authorisation had been granted which was compliant with PPC, I find it impossible to fathom upon what basis the Agency was acting in breach of Article 249. The nearest that the claimants came to making this submission good was by the assertion that if the authorisation was allowed to stand the State would be seen to be permitting something which it had no power to permit. In my judgment, this does not begin to amount to prevention or inhibition of the purposes of the PPC Directive.

17. The claimants further submitted that the words in the added paragraph 3A, which on their face do not readily convey an obvious meaning, should be supplemented by the addition of some such phrase as “for lawful operation”. The paragraph would then be readily comprehensible as meaning that where a process which was not being carried on before PPC became current did not have a permit under the Regulations of 2000, it was not to be taken as falling within IPC from the date on which the permit was required for lawful operation of the installation’ (added words underlined). If that was not to be the preferred construction, it would have the effect of requiring the Agency to decide applications for IPC activities which at the moment at which the activity commenced would require some other authorisation. Such would be an absurd result which the court should reject as having been intended by the legislature.

18. The defendants contended that there was neither express nor implied power for the Agency to refuse to grant the authorisation if it complied with the prescribed requirements; see s6(3) of the Act of 1990. Thus, if the application for an authorisation was both ‘duly made’ and conformed to the prescribed requirements there was no residual discretion vested in the Agency to refuse to grant the authorisation. Furthermore, if the claimants’ argument was to be accepted, there would be an inconsistency of treatment between the treatment of waste management under Part II of the Act of 1990 and that of pollution control under Part 1. One of the objects of the 2000 Regulations was harmonisation of the permit system between the different methods of control under those two parts. By virtue of paragraph 5 of Schedule 10 of those Regulations, section 35 of the Act of 1990 was amended so that a waste management licence, under Part II of the Act of 1990, ceased to have effect if and to the extent that the waste activity covered by the licence is authorised under PPC. Similarly, it was submitted that the Claimants’interpretation would mean that any IPC application which had led to the grant of an authorisation before the “prescribed date”, but in respect of installations which had not by that date become operational, would cease to have effect. This cannot have been the intention of the legislature.

19. In order that the Agency’s proffered construction should make syntactical sense, it would need to read

Where a process which is not being carried on under an authorisation requires a permit under (the Regulations of 2000) authorising the carrying on of that process in an installation … that process shall not be taken to fall within a description in Schedule 1 from the date on which such a --- permit -- would be required.

This construction was foreshadowed in the Agency’s Summary Grounds for Contesting the Claim where at paragraph 22 it stated

In order to ensure that pollution control authorisations or licences governing activities prior to their transition to (PPC) could continue to be fully enforced up until the time a PPC permit was in place, (the Regulations of 2000) made consequential amendments to the provisions governing the existing pollution control regimes to ensure that activities remained subject to those regimes up until the date the relevant PPC application was determined. … For installations not yet having an IPC authorisation, but potentially in the course of applying for one at the date (when) the Regulations of 2000 came into force … it was … necessary to ensure they remained IPC prescribed processes whilst any such applications were being determined.

20. In my judgment, the draftsman of the Regulations was faced with a difficulty in framing transitional arrangements which would meet all situations. In the respects under consideration in this case, I would hold that the solution to be found in the Regulations was not entirely clear. Given that s6(3) has not yet been repealed, it remains the governing statutory provision for applications made in the circumstances of the present case. It was objected that any such result would produce results which were to be characterised as “absurd” since it would still remain open to applicants to apply for an IPC authorisation when there would never be circumstances in which the plant which it purported to authorise could lawfully be brought into operation. That this may be the case merely illustrates how difficult it may be for the draftsman to ensure that the scheme of alignment of two different regimes to ensure that the one is congruent with the other.

21. In my judgment, the features which compel the result in the present case are that (1) TWS made their application while the IPC regime was still current (2) the application was ‘duly made’ and (3) the Agency granted the authorisation recognising that before the installation could be lawfully operated an authorisation under PPC would be required. In so acting the Agency did nothing which would impede or imperil the implementation of the PPC Directive. Quite the reverse. This ground of challenge fails. Moreover, the suggestion that the Agency and Thames Water Services by proceeding in this way had by some means pre-empted the decision in the planning process is untenable.

Ground II: Failure to have regard to material considerations

22. The underlying basis of this head of challenge was that the Agency had failed in defined respects to pay proper or any regard to the contents of the Fifth Report of the Select Committee on the Environment Transport and the Regions 2000-1. These include that (a) Regulators had been lax in relation to the regulation of incinerators and that emissions data had not been freely and easily made available to the public (paragraphs 97 and 98) (b) Smaller incinerators are preffered and must be used to provide combined heat and power wherever possible and that only sorted waste should be incinerated (c) Failed to have regard to the analysis of the consequences of abnormal operations on health and (d) Failed to conduct a full scale risk assessment.

23. As to these points: (a) The essence of the claimants’ case was that since there is a lack of full knowledge in relation to the effects of emissions from incinerators, they should be considered as dangerous unless there was evidence that this was not so; the ’precautionary principle’; see paragraphs 96 to 98 of the Report. There is a factual issue in relation to this question. The Agency’s Team Leader, Scientific Support (Colin Chiverton) provided evidence in relation to his response to this Report see paragraphs 74 –5 of his witness statement. Not only can there be no effective challenge to his evidence to this effect, but it can also be seen that, by incorporating certain conditions into the authorisation, objectively Mr Chiverton considered the very matters which it is claimed that he did not. From the legal standpoint, however, it is to be noted that the Report does not have the force of law. It addresses questions of policy which it is for the Government to address. The policy of the Agency is to respect the Waste Incineration Directive and, in accordance with its statutory duty, those matters which are specific to the site itself. This it manifestly did. There is no substance to this ground of challenge.

(b) Covered by (a) above.

(c) There was evidence which had been obtained by the Agency to the effect that abnormal operations would not imperil the health of those who lived locally to the site of the proposed plant. There is nothing to indicate why this assessment should be disregarded as being inconsistent with the decision of a reasonable decision taker.

(c) Covered by (a) above.

(d) The evidence from Mr Chiverton was that such would take place when a systematic study of plant design is normally carried out. That stage had not yet been reached. Furthermore such an assessment is normally performed when the intending operator is seeking approval from the Health and Safety Executive at a later stage in the development process. Again, there is nothing to suggest why Mr Chiverton’s evidence should not be acted upon as representing the views of a reasonable decision taker.

Ground III: Drafting irrationality and uncertainty

24. These grounds raise a number of criticisms to be found in the detailed document which contains the authorisation. It is possible to anticipate my conclusions in regard to this raft of criticisms. In my judgment the response of the Agency both in its detailed grounds and the evidence of Mr Chiverton are sufficient to dispose of them. They can conveniently be taken sequentially:

Condition :

1.6 Only mixed municipal waste, as defined in European Waste Catalogue 200301, unless agreed otherwise by the Agency. The exception is not intended, nor can it reasonably be so interpreted, as enabling the Agency to circumvent the primary requirement of the condition. See also paragraph 91-93 of Mr Chiverton’s statement.

1.16(b) According to Mr Chiverton, this condition was inserted in order to demonstrate to the operator that failure of part of the flue gas abatement system would not by itself mean that the whole system would have to be shut down. This would only be required action if, in addition, there was a failure of a monitored emission limit valve for at least 4 hours. He was prepared to accept that this condition added little, if any, to condition 1.16(a). The fact that it may be surplusage does not affect the rationality of the insertion of condition 1.16 as a whole.

1.19 The second clause of this condition was characterised by the claimants as “gobbledygook”. In my judgment and taking a reasonable view of what it might mean, there is no difficulty in ascribing to it a perfectly sensible rationale. It is to the following effect: if any one piece of emission measuring equipment is out of service for at least 24 hours, that does not require the plant to be shut down. But if a relevant monitored parameter is breached, then the plant does have to be shut down. The language in which this requirement is set out is not elegant, but meets the tests of sufficiency of meaning.

1.20 The criticism, here, was that as drafted, it was insufficiently clear what was intended. The Agency responded that this particular condition had been lifted directly from the Waste Incineration Directive. Again, its meaning is, in my judgment, sufficiently clear. It is to the following effect: if there is a breakdown of any part of the installation which imperils ‘normal operations’ the plant must reduce its output, or close down if that is not possible, until ‘normal operations’ can be restored.

Monitoring results

25. The complaint here was that the conditions of the authorisation are insufficient to protect the claimants’ right to information affecting their homes, pursuant to the provisions under Article 8 of the European Convention. Reliance was placed on passages in the judgment in the case of Guerra v. Italy 26 EHHR 357 in suport of the proposition that reliance on the obligation to place the results of monitoring on the public register provides insufficient information to enable people living in the locality with regard to pollutants to which they may be exposed and about which they need to be informed when in and about their homes. It is well to note that the circumstances in Guerra are far removed from those in the present. It was a case in which a factory produced a chemical, “polyamide”, which was classified as “high risk” acording to 82/501/EEC which governs the major accident hazards of certain industrial activities dangerous to the environment and the well being of the local population. The basis of the Court’s decision which was against Italy was that in paragraph 60

(S)evere environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely. In the instant case the applicants waited, right up until the production … ceased … for essential information that would have enabled them to assess the risks they and their families might run if they continued to live (in) … a town particularly exposed to danger in the event of an accident at the factory.

The Court holds … that the respondent State did not fulfil its obligation to secure the applicants’ rights to respect for their private and family life, in breach of Article 8 of the Convention.

26. It will be noted that the facts in Guerra were extreme when compared to those which exist in the present case. In the present case, worst case modelling of the emissions from the proposed plant did not suggest that there was any risk of a substantial nature of injury to health or property if the installation was operated. The facts were that under the provisions of the Environmental Protection (Applications Appeals and Registers) Regulations 1991 particulars of the monitoring provided to the Agency on the basis of 24 hours a day would have to be placed on the public register in due course. Since the threat to health and property was not of a substantial kind, there was no necessity for the information to be made available before it was placed on the register in accordance with those Regulations.

27. This argument was presented in a modified form to the effect that the system of monitoring for dioxins and furans (other objectionable organic pollutants) was unreasonable and contrary to Articles 2 and 8 of the Convention. To this, the short answer is that the requirements for monitoring set out in the authorisation not only conformed to those contained in Article 11(2)(c) of the Waste Incineration Directive but also had been considered by the Agency as the appointed regulatory body for, among other, purposes, the control of pollution.

Conclusion

28. For all the above reasons, the claimants have failed in the several challenges which they have made and this application fails and must be dismissed.