QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| DAVID LEVY|| Claimant|
|THE ENVIRONMENT AGENCY|
BLUE CIRCLE INDUSTRIES PLC
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Jon Turner (instructed by The Environment Agency for the Defendant)
Mr. Stephen Tromans (instructed by Clarks of Reading for the Interested Party)
AS APPROVED BY THE COURT
Crown Copyright ©
Outline of the case
The background to this application
The statutory framework in the Environmental Protection Act 1990
“Those objectives are (a) ensuring that, in carrying on a prescribed process, the best available techniques not entailing excessive cost will be used (i) 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 such substances which are so released;…and (ii) for rendering harmless any other substances which might cause harm if released into any environmental medium”.
“The objectives referred to in subsection (2) above shall…include the objective of ensuring that the best available techniques not entailing excessive cost will be used for minimising the pollution which may be caused to the environment taken as a whole by the releases having regard to the best practicable environmental option available as respects the substances which may be released”.
The phrase “best practicable environmental option” in section 7(7) of the 1990 Act is usually known by the acronym “BPEO” and I will also refer to it in that way.
The application and the issues
(a) erred in law by failing to ensure that the emission of prescribed substances were minimised by requiring the use of BATNEEC and for example, considering the use of sulphur scrubbers independently of considering whether such emissions were harmful (including to health) and/or complied with air quality standards (“Ground One – The Minimising BATNEEC ground”) (see paragraphs 24 to 88 below).
(b) acted unlawfully by failing to consider whether in the light of economic advantages of the change of fuel from coal to waste tyres, the use of sulphur scrubbers was now the BATNEEC and, if they were, to require their use (“Ground Two - The Sulphur Scrubbers Point”) (see paragraphs 89 to 96 below).
(c) acted unlawfully in making its decision without the objective of implementing material parts of the Waste Strategy 2000 document which required it to make the decision based on its assessment of whether burning these tyres in the kilns was the BPEO for those tyres (“Ground Three - The Waste Strategy 2000 issue”). It is this ground which the Agency contends that the claimant needs, but has not yet received, permission to pursue and I consider this ground in paragraphs 97 to 121 below.
The approach to the Decision Document
“What is required is there should be a decision with reasons. Providing that those set out clearly the grounds on which the decision has been reached, it does not seem to me necessary that all the thinking which lies behind it should also be made available”.
“The courts should not intervene just because the reasons given, if strictly construed, may disclose an error of law. The jurisdiction to quash a decision only exists where there has in fact been an error of law” (R. v. Governors of the Bishop Challoner Roman Catholic Comprehensive Girls’ School ex parte Choudhury  2AC 182 at 197 E with my emphasis added).
“[the courts] will intervene if the [appointed decision-maker] asks itself the wrong questions (that is, questions other than those which Parliament directed it to ask itself). But if it directs itself to the right inquiry, asking the right questions, they will not intervene merely because it has or may have come to the wrong answer, provided that is an answer that lies within its jurisdiction”(Ansiminic Corporation v. Foreign Compensation Commission  2AC 147,195 F per Lord Pearce).
I will consider later in paragraphs 77 to 81 whether in this case there should be an enhanced margin of appreciation of the Agency’s decision on section 11 applications.
Ground One - The Minimising BATNEEC ground
The claimant’s submissions
The understanding of the Agency on the obligation to minimise pollution and emission
“When determining a variation to an IPC authorisation, the Agency has an obligation under EPA 90 to minimise pollution caused to the environment taken as a whole” (page 44 of the Decision Document).
“The Agency is satisfied the proposed change of fuel demonstrates the best available technique not entailing excessive cost and also represents the best practicable environmental option that will minimise pollution of the environment take as a whole” (page 69 of the Decision Document).
“The Agency must be satisfied that the objective of ensuring the best available techniques not entailing excessive cost will be used for minimising the pollution which may be caused to the environment taken as a whole has been met, in accordance with sections 7(4) and 7(7) of EPA90. If this objective is not met, then the Agency would refuse the application” (page 107 of the Decision Document).
“The Agency’s approach has been thorough in the assessment of this application. Compliance with air quality standards and objectives is an important assessment criterion, but is only one of many criteria used” (page 146 of the Decision Document).
“The court can and, in inappropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should consistently with [some observations of Steyn LJ] be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity”(R.v.Westminster City Council ex parte Ermakov  2All ER 302, 315E).
BATNEEC - the nature of the Agency’ s role under section 7(1) of the 1990 Act - duties or discretions?
“There shall be included in an authorisation [subject to provisions which do not apply in this case] such specific conditions as [the Agency] considers appropriate, when taken with the general condition [that Blue Circle must use BATNEEC for preventing releases of prescribed substances and rendering harmless substances which might cause harm if released into an environmental medium] for achieving [the specified objectives]”.
“An objective in my judgment is something different from a material consideration. It is an end to which to aim a goal. A material consideration is a factor to be taken into account when making a decision and the objective to be attained will such a consideration, but is more that that. An objective which is obligatory must always be kept in mind when making a decision even while the decision-maker has regard to other material considerations. Some decisions involve more progress towards achieving the objective than others. On occasions, the giving of weight to other considerations will mean that little or no progress is made. I accept that there could be decisions affecting waste disposal in which the weight given to other considerations may produce a result which involves so plain and flagrant a disregard for the objective that there is a breach of obligation. However, provided the objective is kept in mind, decisions in which the decisive consideration has not been the contribution they make to the achievement of the objective may still be lawful. I do not in any event favour an attempt to create a hierarchy of material considerations whereby the law would require decision makers to give different weight to different considerations”.
Pill LJ later said  that:-
“Neither does the discretion to specify conditions which the “enforcing authority considers appropriate” limit the obligation to achieve the objective when considering the issue in the present case. It confers a discretion to decide how most appropriately to achieve the objective but does not weaken the obligation to ensure that BATNEEC will be used”.
This second comment has to be read in the context of the facts in this case. Where the Agency is dealing with “objectives” as in this case, then as Pill LJ had already explained in the passage set out earlier in this paragraph, the Agency has to keep objectives “in mind”. As I will explain in paragraph 108, Carnwath J (as he then was) has adopted a not dissimilar approach when he referred to BPEO as not being “the determinative issue” but “a material consideration to which the authority should have regard the weight to be given to it is a matter for them”. Significantly, he clearly considered “objectives” as being different from “requirements”.
“The real dispute on this first issue, it seems to me, relates to what the Agency has to do to fulfil the duty imposed upon it by section 7. That must be a matter of fact and degree in each case having regard to the particular circumstances of the case. In my view, it is not right to say that every time the Agency receives a section 11 application it has to carry out an exhaustive examination of all practical options and techniques relating to the process as a whole, regardless of the circumstances. Such a rigid rule would not only be unnecessarily burdensome on the Agency but it could also deter operators from bringing forward improvements by a section 11 application. Whilst there may be circumstances where such a full scale examination of the process as a whole may be warranted, in my judgment it was not necessary in the circumstances of this case” (page 85).
Compliance by the Agency with is obligations
Scrutiny of the reasons given by the Agency in the Decision Document without recourse to Mr. Babb’s witness statement
“The Agency says that it is satisfied that the proposed change represents the BATNEEC. However, key potential improvements, such a requirement for sulphur scrubbers, have not been properly considered. The proposed conditions do not thus ensure that the BATNEEC is being used” (Decision Document page 143).
The Agency responded by stating that:
“The Agency has to determine what is BATNEEC in relation to each application and translate that into conditions to be included in the authorisation or variation. To achieve this, any application will be referenced against the available relevant guidance notes for the process. For this application, the primary guidance note is “IPC Guidance Note S2 3.01 Cement Manufacture, Lime Manufacture and Associated Processes”. The determination of BATNEEC requires that a site specific approach be taken when considering the options available. When the site was first authorised under IPC the operation was considered to be operating using BATNEEC. The current application specifically deals with a proposed change of fuel. The Agency is required to determine the application, which does not extend to consideration of alternative or additional methods of sulphur dioxide removal” (Decision Document page 143).
“Refer to key issues section 4.4. In addition:
The proposal to use tyres as a substitute fuel results in a significant reduction in oxides of nitrogen. The variation includes controls to be imposed on the process operation which will ensure that the emissions of sulphur dioxide are at least as low as those experienced when conventional fuel is being burned.
Techniques for reducing total and peak emissions of Oxides of Nitrogen, Sulphur Dioxide and total emission of combustion generated Carbon Dioxide are being investigated by Blue Circle as part of the continuing process of emissions reduction” (Decision Document page 91).
“In summary, the Agency notes that at best there is a significant overall environmental benefit from the partial substitution of fuel with tyres and at worst there appears to be no overall benefit or detriment and is therefore satisfied that the requirements of BATNEEC/BPEO are satisfied in accordance with section 7 of the 1990 Act” (Decision Document page 24).
“The Agency says it has “had regard to the BPEO”. From comments at last week’s meeting it is clear that the Agency has done no more than consider whether tyre burning is the BPEO for fuelling the cement kiln. Moreover, it has done so by comparing emissions from coal with emissions from coal/tyre mix. It has thus not considered alternative, even less polluting, fuels. Accordingly, even within its own terms, the assessment has not considered the “Best PEO”. Moreover, the Agency has not, as it should have done, considered whether the BPEO for dealing with waste tyres is the BPEO for that waste stream. Alternatives such as recycling or pyrolysis are clearly preferable in BPEO terms.
You state that you are satisfied that the proposed change represents the BATNEEC. What alternatives have you considered? In each case, what were the extra costs involved? On what basis did you consider those costs excessive? In particular, have you considered sulphur scrubbers and for each of those why has Blue Circle not been required, through conditions on the authorisation, to implement these techniques?” (Decision Document pages 143-144).
To this the Agency responded by stating that:-
“When originally granted on 29 October 1993 the authorised activity would have been BATNEEC/BPEO. Since then Blue Circle has implemented the improvement programme specified in the authorisation resulting in a continuing reduction in emissions from the process.
Section 6(6) EOA 90 directs the Agency “from time to time but not less frequently that once in every period of four years” to carry out a review of the conditions of the authorisation. It was not considered appropriate to do so as part of this Variation. A review under section 6(6) of EPA 90 was completed in December 1998 and the installation will become subject to the requirements of the PPC regulations in 2001, with the opportunity for further review at that time.
Bearing in mind the above, the Agency considers it reasonable to regard the existing situation prior to the application for a variation as being BATNEEC/BPEO. This being the case, it was only necessary to consider what was being proposed compared to the current position. The proposed use of tyres is a continuation of the BATNEEC/BPEO position” (Decision Document page 144).
“the Agency was entitled to treat the existing situation at both plants resulting from the 1993 authorisations [which had been given after “thorough environmental assessments”] together with the ongoing improvement programmes as being BATNEEC/BPEO and, in the absence of an obviously better alternative, it was entitled to treat the proposed improvements by the use of [the process for which the application was being made] as part of the ongoing improvement programme and as a continuation of the BATNEEC/BPEO position” (page 85).
Additional Grounds for rejecting the claimant’ submission on Issue 1
Additional Grounds for supporting the Agency’s decision - (i) the enhanced margin of appreciation due to the Agency when considering the Decision Document
“Decision after decision in the House of Lords over the last fifteen years had made it clear that when Parliament entrusts an expert body of people, whether they be tribunals or civil servants, or, as here, a combination of civil servants and independent inspectors, with the task of fulfilling the intentions of Parliament in a specialist sphere, the courts should be very slow to interfere”.
“the court cannot in the absence of exceptional circumstances decide to be unfair that which the commissioners by taking action against the tax-payer have determined to be fair. The commissioners possess unique knowledge of fiscal practices and policy”.
The comment is apposite to the difficult task that confronted the Agency, who had unique knowledge of the technical and environmental material that had to be appraised in reaching its decision on the June 2000 application.
Additional ground for supporting the Agency’s decision (ii) Mr. Babb’s witness statement
(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Laws J put it in Northamptonshire County Council ex p D) “the adequacy of the reasons is itself made a condition of the legality of the decision”, only in exceptional circumstances if at all will the court accept subsequent evidence of the reasons.
(ii) In other cases, the court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:
(a) Whether the new reasons are consistent with the original reasons.
(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.
(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal’s decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).
(d) The delay before the later reasons were put forward.
(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.
To these I add two further considerations. The first is based on general principles of administrative law. The degree of scrutiny and caution to be applied by the court to subsequent reasons should depend on the subject matter of the administrative decision in question. Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the court may be less demanding and readier to accept subsequent reasons.
Secondly, the court should bear in mind the qualifications and experience of the persons involved. It is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members”.
“The Court has an inherent jurisdiction to receive [affidavit] evidence so as to understand the true nature of the decision-making process. But … the Court will be alert to ensure that the affidavit is genuinely directed to telling the Court what happened at the time the decision was taken and not merely to giving the Court an ex post facto rationalisation, which could not be admissible. There may well be circumstances in which the failure to give adequate reasons will have cost consequences it if is only by virtue of the subsequent affidavit that the decision can be justified and indeed there may be cases where the failure to give adequate reasons is of such a nature that it would be wrong to permit those reasons to be supplemented”.
Ground Two - The Sulphur Scrubbers Point
The claimant’s submissions
“Wet and dry lime techniques can be used to desulphurise the kiln exhaust gases prior to the EP’s. However, such techniques are unlikely to be considered BATNEEC for the Westbury kilns based on costings detailed in the S2 guidance note. This may change if the current tyre burning trial is successfully concluded. The potential fuel cost savings could be used to justify additional abatement. This approach may become mandatory if a draft EC Directive on non-hazardous waste incineration is implemented. The draft Directive proposes fixed emission limits for all plants burning non-hazardous waste”.
Ground Three – The Waste Strategy 2000 Issue
The statutory background to this challenge
The claimant’s submissions
The need to consider Waste Strategy 2000
“Section 7 (7)(b) is directed to ensuring BPEO for the releases from the approved process. It is not concerned with whether the process itself represents BPEO for the incoming waste”.
“There is no difficulty in holding that in appropriate cases BPEO is an objective to which planning authorities should have regard as a material consideration. There is, however, no statutory duty imposed on the planning authority to treat it as the determinative issue or the “correct question” if that is meant to suggest that in every case the authority is required, as a first step, to determine whether the particular process represents the BPEO for the raw materials in question. It is a material consideration to which the authority should have regard, the weight to be given to it in any particular case is a matter for them”.
The Court of Appeal ( Env LR 719, 727) in dismissing the appeal in Kirkman appeared to accept Carnwath J’s approach, which shows the relevance of Waste Strategy 2000 as being a matter to which the Agency should have regard, rather than being obliged to consider it as determinative. In any event, I respectfully agree with Carnwath J’s comments, which undermines any suggestion that BPEO is a requirement.
The Treatment of Tyres in the Decision Document
“in addition, the Agency has assessed the impact of tyres in a report entitled: “Tyres in the Environment”. The various options for dealing with used tyres have been evaluated in terms of their environmental advantages and disadvantages. The Agency concluded that more effort needs to be applied to increase the lifetime of tyres, reduce the environmental impact during use and to provide a range of sustainable ways of recovering them as a resource at the end of their lives. More emphasis also needs to be placed on material and energy recovery in line with the Government’s waste management hierarchy. The Agency therefore conclude that the use of tyres as a substitute fuel in the cement making process is consistent with the Government’s Waste Strategy [Plan] and that the relevant objectives of the  Regulations have been met”.
“Tyres have a high calorific value, equivalent to fuel oil and greater than coal, so using them as a fuel source is a good environmental option and saves the use of finite resources such as fuel oil, coal and coke. In some European countries between 50 and 80 per cent of used tyres are used as an energy source. There is an increasing demand for tyres as a fuel source in cement kilns in England and Wales and with regulation of emissions this is a good option, especially in the short term when other markets for material recycling and energy recovery are limited. A further point is that emissions of nitrogen oxides, an air pollutant, are reduced by up to 40 per cent by using tyres to replace coal in cement kilns. But there is public concern about burning waste in kilns and thus a need for clear information to be provided. The Agency has already set about this task with greater access to information and public meetings and intends to continue to contribute to the wider debate about tyres” (page 4 of Tyres in the Environment).
“Tyres have a very high calorific value, comparable to coal. So energy recovery in one form or other is a good environmental option, provided that emissions from the process are minimised and regulated effectively. In 1996, only 27 per cent of tyres were used for energy recovery in the UK compared with between 50 and 80 per cent in some other European countries. There is the potential for much greater recovery of energy from tyres in the UK. This would have the benefit of reducing the demand for other sources of energy and providing an outlet for end of life tyres while avoiding the need to stockpile them, with the inherent risk of fires and pollution. Three ways are used to recover energy from tyres at present: direct incineration to produce electricity (about a quarter of UK tyres), use as a fuel source in cement kilns and pyrolysis of tyres (small-scale at present). The UK is currently reliant on a single tyre incineration plant, whose running has raised technological and logistical problems, as well as the need to transport used tyres long distances. The burning of tyres in cement kilns offers a useful alternative and, since the cement kilns exist all over the country, the transport of used tyres could be reduced if this outlet was developed”.
Issue 4 - The Remedy Issue
Quashing the decision
Should declarations be granted?
“A decision to refuse [a remedy] as a matter of discretion on the footing that the claim is academic ought not in my view to be made without some appreciation of the force of those arguments. In a public law case, [a claimant] may have an important point to bring to the court’s attention whose resolution might be required in the public interest, even if the [claimant] himself has suffered no perceptible prejudice as a result of the decision in question”.
“decisions on waste management, including decisions on suitable sites and installations for treatment and disposals, should be based on a local assessment of the Best Practicable Environmental Option”.
“The right way to treat particular waste streams cannot be determined simply. The objective is to choose the Best Practicable Environmental Option (BPEO) in each case. BPEO varies from product to product, from area to area and from time to time. It requires waste managers to take decisions which minimise damage to the environment as a whole, at acceptable cost, in both the long and short term. A more detailed description of how decision-makers can identify the BPEO is at Chapter 3 section starting 3.3 in Part 2 of this strategy.
In determining BPEO we will expect those making decisions to take account of three key considerations:
- the waste hierarchy. Within the hierarchy, the Government and the National Assembly do not expect incineration with energy recovery to be considered before the opportunities for recycling and composting have been explored
- the proximity principle requires waste to be disposed of as close to the place of production as possible. This avoids passing the environmental costs of waste management to communities which are not responsible for its generation and reduces the environmental costs of transporting waste
- self-sufficiency. The Government believes that waste should not be exported from the UK for disposal. Waste Planning Authorities and the waste management industry should aim, wherever practicable, for regional self-sufficiency in managing waste.
“the technique that should be used for making waste management decisions is known as Best Practicable Environmental Option (BPEO) and the simplest way to encourage integrated waste management is to structure the implementation of BPEO with the above key elements in mind. The following section gives some further detail on determining BPEO. Subsequent sections in this Chapter consider the impact of land use planning, waste management licensing, integrated pollution prevention and control regulation and the Duty of Care, which all have a role to play in determining and implementing optimum waste management solutions across England and Wales. Decisions on how to treat or dispose of waste should be taken locally, taking account of local circumstances and the nature of particular waste streams. When taking waste management decisions on suitable treatment options, sites and installations, local authorities must follow the framework set out below. This framework should also act as a guide for other decision-makers, including business waste managers.
|The precautionary principle|
Any integrated waste management system must make allowance for the precautionary principle, which states that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as reason for postponing cost-effective measures to prevent environmental degradation.
Determining the Best Practicable Environmental Option
If we are to manage our waste more sustainably, decision-makers need the tools to move us in that direction. Waste is not a single substance and its management is not a series of simple choices. Rather it is, for the most part, a complex mixture of different materials, in differing proportions. Each of these materials has the potential to impact differently on the environment. Environmental impact can also be influenced by the collection system used, the locations where waste is generated, managed and disposed of and the resources consumed through managing our waste. In a sustainable and integrated system all these factors must be taken into account when making decision on how best to manage waste.
The process that should be used for considering the relative merits of various waste management options in a particular situation is the Best Practicable Environmental Option (BPEO). This was defined in the 12th Report of the Royal Commission on Environmental Pollution as:
the outcome of a systematic and consultative decision-making procedure which emphasises the protection and conservation of the environment across land, air and water. The BPEO procedure establishes, for a given set of objectives, the option that provides the most benefits or the least damage to the environment as a whole, at acceptable cost, in the long term as well as in the short term.