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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rockware Glass Ltd, R (on the application of) v Chester City Council & Anor [2005] EWHC 2250 (Admin) (24 October 2005)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/2250.html
Cite as: [2005] EWHC 2250 (Admin)
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QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL Judgement handed down at The Law Courts Openshaw Place Ringway Preston PR1 2LL |
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B e f o r e :
____________________
| THE QUEEN (ON THE APPLICATION OF ROCKWARE GLASS LIMITED) |
Claimant |
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| - and - |
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| CHESTER CITY COUNCIL |
Defendant |
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| -and- QUINN GLASS LIMITED |
Interested Party |
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Timothy Horlock QC and Robert Darbyshire (instructed by Eversheds, Nottingham) for the Defendant
Reuben Taylor (instructed by Cameron Smith Mckenna, London) for the Interested Party
Hearing dates : 27th, 28th, 29th, 30th September, 24th October 2005
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HTML VERSION OF JUDGMENT
Crown Copyright ©
- This case concerns a substantial industrial installation for the manufacture of glassware at a former power station at Elton, on the borders of the districts of the City of Chester and Ellesmere Port and Neston . That area is one long known for its substantial industries (including petrochemicals) and refineries. In particular, these works have been designed to be the largest container glass factory in Europe. It is a development by Quinn Glass Limited, a major manufacturer of glass, but in production terms a relative newcomer to the UK.
- Its construction and operation require various authorisations, but two in particular, namely the grant of planning permission under TCPA 1990 and a permit under the IPPC regime for pollution control. I shall describe the details of that regime in due course.
- This challenge relates to the grant of an IPPC permit by Chester City Council (" Chester CC") on 2nd March 2005. It was issued following a decision on the application by the Chief Executive Mr Paul Durham, and was said to be issued under delegated authority.
- It is argued by Rockware Glass Limited (" Rockware") which company is a rival glass manufacturer, and which had objected to the grant of a permit, that
- The Defendant City Council seeks to dispute those grounds. In addition it also contends that Rockware has insufficient interest to bring these proceedings. It also seeks to persuade me that if I find any of the substantive grounds of challenge made out, I should not exercise my discretion in favour of quashing the permit.
- Quinn also dispute the grounds, and argue that Rockware has no sufficient interest to bring these proceedings. It also contends that Rockware failed to bring them promptly, and argues that if I find any of the substantive grounds of challenge made out, I should not exercise my discretion in favour of quashing the permit.
- Mr Justice Bean gave directions on 10th June 2005, allocated it to a Deputy Judge and ordered that the hearing of the application for permission be heard with by all parties present, followed immediately by the substantive hearing if permission were granted. As was anticipated by Mr Justice Bean, and as is usual in my experience, it was agreed by all parties before me that the matter should proceed as a final hearing.
- Rockware applied to amend its Grounds . In my judgement, the matters where it sought to amend its case all arose directly from the material which each of the three parties had. Chester CC CHESTER CC did not oppose the amendment. Quinn did, but Mr Taylor frankly accepted that he could not claim that his clients were disadvantaged in the preparation of their case. I therefore gave permission for the amendments.
- At the hearing, I held that Rockware had sought permission for judicial review promptly, but that I would give my reasons in this judgement. I do so at paragraphs 176-179 below.
- I shall deal with the judgement under the following heads
- This is a lengthy judgement. The circumstances of this case require it for the following reasons
- In this context, I must point out, as will become clear below, that the circumstances in which the expenditure was incurred by Quinn, and its employment of large numbers of people, are unusual, and represented the taking of a calculated risk on its part.
- There are seven principal areas of dispute
- Issues (b)- (g) are important but raise no new points of law. In the case of (a), there is no decided authority brought to the court's attention or of which it is aware which deals with the point. For Chester City CouncilCHESTER CC, Mr Horlock QC urged the court to give clear guidance to regulators where none currently exists.
- The resolution of issues (a) and (b) in this case requires some understanding of the way in which glass is manufactured, and especially by which potential emissions are generated, the principles of their abatement, and their effect on the environment.
- A plant such as this uses furnace in which glass is melted at very high temperatures. That process inevitably produces emissions of various substances. The substances produced, and the amounts in which they are produced, are obviously affected by the nature of the design. The emissions which this case concerns are those of oxides of nitrogen, known shortly as NOx. It is a gas which while not of itself a greenhouse gas, can have a significant effect on the production of such a gas; ozone (O3), whose ambient levels require reduction because of their seriously harmful effects. In the light of the approach by the regulator to what he thought was the insignificance of NOx as a "greenhouse gas", this matter is important. It has some direct effects itself on human health. Air Quality standards are set to deal with that aspect of NOx; they are set out at paragraphs 188-216 of the Air Quality Strategy Cm 4548 ("AQS") presented to Parliament in January 2000. I refer in particular to paragraphs 188-189
- But the effects of NOx do not end there. The next section of the AQS (paragraphs 216-234) deals with ozone . It can have adverse effects on health in the lower atmosphere (paragraphs 217-8) . I draw particular attention to the facts that
- It follows from the above that the effects of NOx as a pollutant are not assessed adequately by local measurements, nor by measurements of NOx.
- As with all furnaces, what is emitted at the end depends upon what has been put in earlier on in the process, and what has happened to it. Thus, a plant fed by air (and therefore with nitrogen (N) and oxygen (O) as components of the input) will produce more oxides of nitrogen (NOx) as a result of combustion (and therefore the oxidization of the nitrogen) than it will if it is fed by oxygen alone, and so on. But it is not simply a matter of the choice of fuel or the rate at which it enters the furnace. Other aspects of the design will also affect the rate at which substances are emitted and in what quantities. To give a simple example, the efficiency of combustion affects the presence of various substances in the exhaust gases. That is a function of several things, including the shape, size and configuration of the furnace. Then, once the emissions occur from the primary (furnace ) phase, then they pass through a secondary phase, where abatement of those primary emissions can occur through converters (catalytic and non-catalytic), scrubbers, introduction of other substances to the exhaust gases and other kinds of abatement technique. But equally obviously the level of (say) NOx that is emitted from the stack into air depends on both the choice and design of process (among other matters) in the primary phase, and the nature of the abatement provided in the secondary phase. When engineers design a plant of this type, they do not look at the two parts discretely, but look at the effects of one on the other in an iterative process until they have reached the appropriate overall design solution. But one cannot address the level of emissions into atmosphere without considering both phases. That important matter, which was accepted by all parties before me, coincides with my own experience at the bar of dealing with applications and permits relating to industrial and incineration processes .
- It is necessary then to observe that emissions can be measured in at least 3 ways
- While there will no doubt often be a correlation, one must be careful in how one makes comparisons. A rate of x mg/Nm3 from a furnace with a high total exhaust emission rate will generate more NOx in absolute terms than one emitting NOx at the same rate per Nm3 but with a lower exhaust emission rate. Thus an emission of 1000 mg NOx per Nm3 in a total exhaust gas emission rate of 3 Nm3/sec produces a much greater amount of NOx than 1000mg/Nm3 in a total exhaust gas emission rate of 2 Nm3/sec.
- In fact, the parameter chosen, both for emissions control and for assessing air quality for Environmental Quality Standards, is of the amount of NOx per amount of air i.e. x mg/Nm3. It follows that comparisons on the mg/Nm3 basis represent the appropriate measure.
- It is also important to note that design can affect performance. Such a proposition sounds straightforward if applied to a motor car, but it is just as applicable to process design. Equally, changes in throughput can produce changes in the level of particular emissions.
- Much turns in this case on the distinction between 2 types of process
- The critical difference in NOx emission terms is that for the purposes of combustion the cross fired regenerative type uses air within the furnace, whereas oxyfuel furnaces use oxygen rather than air, thereby producing much fewer mg of NOx per Nm3. There are consequences to those differences, which I deal with below.
- It is helpful at this stage to set out something of the history of this case, drawn from the chronology submitted by the claimant and from the exhibits lodged with the court: (NB the David Hosker referred to is the Environmental Health Officer at the Defendant responsible for investigating the application for an IPPC permit at the Plant and for advising the Defendant on its decision to issue the permit and the terms on which this should be done.)
- It will be seen from the above that Quinn has elected to proceed with this development without any planning permission being in existence which authorises the development. Chester CC has thus far not considered whether to take enforcement action against Quinn. In my judgement, the letter from its solicitors of 11th March 2005 shows that it had committed itself to this project to the extent of entering into contracts, and had trained staff, long before the permit was granted on 2nd March 2005. Thus, the largest container glass factory in Europe has been quite deliberately advanced far beyond the design and planning stage without two of the necessary fundamental statutory permits being in place. It has also been constructed and started up before the local planning authority has considered any of the environmental information (in the meaning of that term in the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 SI NO 293, and therefore including comments received from statutory undertakers, interested parties and the public upon the ES filed by the developer) or considered whether the environmental effects have been adequately addressed. It is entirely inconsistent with the objectives of either the European or national pollution, prevention and control codes, which seek to ensure that a process is gone through before a plant's design is finalised plants that a major potentially polluting installation should be commissioned and constructed (as this one undoubtedly was) without the permit being in place. It is also contrary to the spirit of the environmental assessment code, whereby proper environmental assessment is undertaken and the public's views considered, before a major project with potential effects on the environment is undertaken.
- I accept of course that no criminal offence has been committed. The IPPC permit remains in being unless and until it has been quashed, and no criminal offence is committed under the Town and Country Planning Code unless and until the Local Planning Authority has issued an Enforcement Notice which has come into force. I note also that whereas an extant planning permission is required for a waste management installation to be granted a permit under the PPC Regulations (Reg 10(4)), no such requirement exists for other types of installation subject to the Regulations. I also accept that the fact that Quinn has behaved in this manner and taken a very considerable gamble, does not of itself give rise to a ground of challenge, nor can it colour the way in which I must interpret the relevant code, nor affect the way in which I must draw inferences about what Mr Hosker and Mr Durham did, nor the way in which I must apply public law precepts to those findings. It may however be relevant when I come to consider Quinn's arguments on delay, and on whether I should exercise my discretion to grant or refuse relief.
- On 2nd March 2005, Mr Hosker went to see Mr Durham. It had been the intention of Chester City Council that the IPPC permit and any planning permission be issued at the same time. Thus, the permit was being considered on 2nd March 2005, and the planning application on 3rd March 2005. Had the planning application been " called in" for determination by the First Secretary of State before the meeting, Mr Durham's evidence is that he would not then have gone on to consider the IPPC permit, although there is nothing in the PPC Regulations to have prevented him from doing so.
- The meeting between Messrs Hosker and Durham went ahead at about 4.00 pm. In fact shortly before the meeting began, GONW sent a fax to Chester CC stating that the application had been called in. Chester CC deny that that fax was received. But after the meeting had started, there is no doubt that the planning officers at Chester CC had been informed by Quinn's solicitors of what had happened. Messrs Hosker and Durham were not informed until after their meeting had finished , by which time the permit had been issued.
- So far as the events of that meeting are concerned, a great deal turns on them, because the challenge here is in part on whether relevant considerations were addressed, and in part on the adequacy of the reasons given. I deal with those matters in a later section. As a result of the meeting, Mr Durham issued a permit. He considered that he had authority to do so under the scheme of delegations, whereby the Chief Executive has delegated authority
- Chester City Council contend, as Mr Horlock QC put it , that Mr Durham relied on Mr Hosker, and, after discussion, adopted his reasoning. Mr Horlock QC was quite explicit that Mr Durham both relied on Mr Hosker's account and consideration, and decided to adopt it. I shall set out below what evidence there is of reasons on the part of the Council, and whether they were proper, adequate and intelligible.
- I shall consider the challenges to the reasons given, and the approach of Chester City Council, in a subsequent passage in this judgement. Before I do so, it is essential that I set out, and regrettably at some length, the legal and policy context in which the decision had to be made.
- The regulator must make his decision in accordance with the statutory code, which I deal with below. In that context, he must have regard to any statutory guidance to which the statute requires him to have regard, and ascribe to it any weight prescribed by the statute.
- He must also adhere to certain general principles. There was little disagreement between counsel on the general principles, which can be stated shortly.
- Although several other lines of authority were cited to me by Mr Gordon QC, I regard the foregoing as a sufficient summary of the relevant legal principles which actually touch on the generalities of the decision making process. I turn now to the specifics of the statutory code.
- The current statutory code in this country is found in the Pollution Prevention and Control (England and Wales) Regulations 2000 SI No 1973, (" PPC Regs") which were made pursuant to the Pollution Prevention and Control Act 1999. They achieve the implementation in domestic law of the European Union Directive 96/61/EC relating to Integrated Pollution Prevention and Control which was made on 24th September 1996.
- I draw attention to the emphasis given to the prevention of pollution, or if that is not possible, reduction and elimination as far as possible , and doing so at source: see recitals 1, 8 and 14. That is also very clear from the terms of Article 1, which reads as follows
- Annex 1 reads (my italics) , insofar as is relevant here:
- The Directive then sets out a code for pollution control. It distinguishes between the regime to be a applied to new installations and existing installations: see Articles 2(3),(4) , 4 and 5. Their effect is that while the Directive requires member states to take the necessary measures to ensure that new installations do not operate without a permit issued in accordance with the Directive, some of the requirements of the code (Articles 3, 7, 9, 10, 13, and parts of 14 and 15(2) ) were not binding on members states for a period of 8 years from the date of the Directive.
- Articles 3 and 4 state
- " Best available technique " is defined in Article 2(11):
- Annex IV reads :
- Article 8 deals with the making of decisions
- Article 9 deals with the attachment of conditions to permits
- It is to be remembered that the permit will set limits on emissions (emission limit value or ELVs). However the air quality in an area can also be measured by analysis of the amount of a given substance in the air. Other EC and national legislation or guidance set standards, namely Environmental Quality Standards ("EQS"). Article 10 addresses what happens when the application of Best Available Techniques ("BAT") results in (for example) an ELV which would still permit the emission of a pollutant at a level which would cause the amount of it in the air to exceed that set by a local EQS. (For example, if atmospheric dispersion modelling showed that levels of (say) NOx in the area would exceed the defined EQS as a result of the emissions from a proposed installation). Article 10 requires that further measures should then be required in the permit:
- Article 11 requires that
- By Article 15, the regulating authority must take into account representations from the public before making its decision. By Article 16, provision is made for the exchange of information. Its text appears in Appendix 1.
- It is important to note that the Directive makes specific provision for some particular substances. In Article 2 (6) it states
- The legislation which sets out the code in domestic law is to be found in the Pollution Prevention and Control (England and Wales) Regulations 2000 SI No 1973, (" PPC Regs") . They make up a very substantial statutory instrument. I set out below the main provisions.
- An application is made under Reg 7
- The application is then considered by the designated regulator (see Reg 8). In this case, which relates to a Part A(2) installation, the relevant regulator is the local authority whose functions
- A permit is required to operate an installation (Reg 9) . Regs 10 to 21 deal with various matters relating to
- Of the above, Regulation 10 (2) is of importance to this case
- "Best available techniques" are defined in Regulation 3
- The Secretary of State (i.e. for the Environment, Food and Rural Affairs) has issued guidance to Regulators pursuant to Regulation 37(1), to which by virtue of Regulation 37(2) the regulator must have regard when exercising its functions under the Regulations.
- The following guidance has been issued
- The Manual contains important advice on the manner in which decisions should be approached. Some of its purposes and ambit appears at 1.12-1.15 and 1.17- 1.19;
- So far as SG 2 is concerned, it is (paragraph 1.4)
- It is important to note that what appears in table 3 is not an aspiration or a target. It is a standard. Paragraph 1.6 calls it " a baseline." While it is a matter for the regulator to consider whether any case specific factors result in a different emission limit being set, what one cannot reasonably do is to work on the basis that the figure is to be treated as too stringent for container glass manufacture given the available technology. If one reaches that conclusion, one must do by evidence which has been analysed and applied in accordance with the statutory code while having regard to the statutory guidance.
- It then addresses "Techniques for Pollution Control" in section 3. That consists in part of text in a series of what are called " outlined BAT boxes" . Paragraphs 3.1 3.3 state
- It will be apparent from the above that SG 2 expects regulators to explore both choices of process technique (see for example 3.15 and the BAT box) and secondary techniques of abatement as well (see paragraph 3.22 and the BAT box).
- It is also necessary to understand something of the differences in the statutory regime and in the Secretary of State's guidance as they apply to existing and new installations. One must note that there will be three types of case
- Statutory guidance in SG2 applies different standards depending on whether it is a new installation, or a change to an existing one.
- The next section deals with " Emission limits and other provisions. " It states:
- The difference between Table 1 and Table 3 is obvious. Table 3 sets out the achievable emission limits, while Table 1 sets out dates by which existing installations must be upgraded. There is nothing in Table 3, or indeed anywhere in the guidance which speaks of any staggered reductions of emissions limits for new installations, or indeed for substantial changes to existing installations. However as appears below, there are real issues in this case as to whether Chester CC ever grasped the meaning of these parts of the document.
- I identified above as the first issue
- Suppose that Smith, Brown, Jones and White are glass manufacturers. Brown, Jones and White already operate glass factories, recently permitted as new installations under the Regulations, and Smith wishes to compete with them. The amount of glass each produces/wishes to produce is similar say 1200 tonnes per day. Brown, Jones and White operate technologically proven processes. Smith's process is also technologically proven, and each of the four is economically viable for any of the four situations. Smith has proposed a type X process , containing two furnaces of 600 tpd each. Brown operates an installation consisting of 2 type Y furnaces of 600 tpd each. Jones operates 3 type X furnaces of 400 tpd each, and White operates 3 type Y furnaces of 400 tpd each. Doing the best one can to reduce generation and emissions of NOx at both primary and secondary phases, the emissions from the four installations cannot be reduced for a furnace stack to below
- The question posed above is so important in this case, because there is ample evidence that a reduction in furnace size, coupled with a change in process to the oxyfuel technique, would have achieved significantly lower emission values of NOx. I consider such evidence below.
- It is common ground between the parties that the regulator has a discretion under Regulation 10(2) to refuse a permit, which is not limited in any way. However in exercising that power, he must apply the fundamental objective found in of Regulation 8 of
- I refer also to the fact that in Article 3, the operator is required to take all appropriate preventative measures against pollution, which are not limited to BAT, and that the test that no significant pollution is caused is a separate test. I refer again to Article 3:
- If one examines the tests for BAT, one finds that the tests require the regulator to consider all aspects of design, technique and process: see Regulation 11(2) of the PPC Regs
- The statutory code and the statutory guidance issued thereunder makes it clear that one must look at the whole process when considering whether BAT has been achieved. Reg 12(6), which deals with ELVs for pollutants, distinguishes between a "description of installation" and the " technical characteristics of the particular installation being permitted". In the former case the ELVs are to be derived by applying BAT: in the latter the ELVs are to " take account of " the technical characteristics of the particular installation." Schedule 1 contains definitions of types of process which are subject to PPC control. Although the phrase "description of installation" is not defined in the Regulations, it is noteworthy that in the Interpretation section (Reg 2) the definitions in Schedule 1 are called " descriptions of installation". That relating to this process is "Section 3.3: Part A(2): manufacturing glass where the melting capacity of the plant is more than 20 tonnes per day. " No more precise description is given.
- If one were unable to examine the choice of process, configuration or size, the words in Regulation 3 (1) (c ) would have little effect, save for parts of the design which did not go to its fundamentals. That seems illogical. I am unable to accept Mr Horlock QC's contention that whereas the regulator might be able to examine more minor parts of the design, yet he would be prevented from opening up the issue of whether the choice of process or furnace size was appropriate in environmental terms. I am comforted in that conclusion by the fact that in the Manual , the Secretary of State advises regulators in the case of BAT that choice of technique is very much a matter for review in a BAT analysis:
- Paragraphs 12.10, 12.11 and 12.12 all contain passages showing that the choice of size and configuration are matters to be considered in a BAT assessment. One should read them, remembering that emissions are affected to a very substantial degree by the design of the furnace and the nature of the process, as the distinction between air and oxygen fuelled processes indicated. I have italicised the passages below which relate to an assessment of the choice of technique, configuration and size.
- No-one suggested before me that either the Manual or SG2 were ultra vires or somehow inconsistent with the Regulations or the Directive. It is obvious from the above that , if a BAT analysis is carried out, then choice of process has to be examined, as does the design of the furnace. It would be quite illogical, and inconsistent with the fundamental objectives of the statutory code, if the aspects of design which could be examined were to exclude the size of the furnace, or (as in this case) the choice of a two furnace as opposed to three furnace design to reach the proposed production capacity.
- There was discussion before me whether it would be possible to force a change in design on an operator by attaching conditions to a proposed process of type X which required adoption of type Y instead. Without deciding the point, I see the force in the argument that one could not do so given the language of Reg 10 and 12. But it would be absurd if the regulator, following SG2 and the Manual, could form the view that Type X would produce more emissions of a specified pollutant than Type Y and was not otherwise to be preferred, and would not represent BAT for glass manufacture, but yet be prevented from refusing a permit for Type X because it was only a proposal for Type X that was before him. Similarly, it cannot be right in my view that a regulator following SG2 and the Manual is not permitted to consider whether a different configuration of production capacity or furnace size or otherwise would reduce the rate of emissions of pollutants.
- Were the regulator confined to considering the process, configuration and process before him, and was not entitled to consider whether another approach would produce less pollution, it would in my judgement produce another serious anomaly, which I raised with counsel in argument. It has been the policy of the First Secretary of State and his predecessor Secretaries of State for the Environment for many years, and now appearing in PPS 23 " Planning and Pollution Control" at paragraphs 10 and 15 , that while the emissions generated by an installation are a material planning consideration, yet the planning system should recognize that the judgements on the acceptability of those emissions in pollution control terms are to be made by the pollution control authorities/regulators, whose judgements should then be accepted by the planning system (my italics)
- the relevant pollution control authority is satisfied that potential releases can be adequately regulated under the pollution control framework; and "
- That is an approach endorsed by the Courts ; see Gateshead MBC v Sec of State for Environment [1994] 1 PLR 85 @ 90H-91G per Glidewell LJ, (an unsuccessful appeal from Mr Jeremy Sullivan QC as he then was, sitting as a deputy judge) where the local planning authority challenged the grant of planning permission on appeal, on the grounds that (inter alia) the Secretary of State had been wrong to conclude that the powers of the then regulator (Her Majesty's Inspectorate of Pollution) were sufficient to deal with concerns over releases. He recited passages from This Common Inheritance; Britain's Environmental Strategy, which was then draft Government policy.
- Now if the pollution control authorities and regulators are prevented from asking whether an alternative process/size/configuration is appropriate and would have reduced emissions, then the planning system will be the only forum where that can be addressed. In my judgement the principles on the relevance in the (planning) development control context of alternative proposals on alternative sites (Secretary of State for the Environment v Edwards [1994] 1 PLR 62) will be just as applicable to alternative proposals on the same site. Equally, there is a duty on planning authorities under the ES regulations and EU Directive, when dealing with developments to which the environmental assessment code applies, to address alternatives (see Schedule 4 Part 2 of the 1999 Regulations) . Without the question of an alternative process/configuration or design being addressed in the IPPC context, it will have to be done by the planning authority or on appeal before a Planning Inspector. The result is there will be even longer debates in the planning context on matters best suited to decisions made under the pollution control code, and a sensible division of responsibility will have been negated.
- I have already referred to my conclusion that a refusal could be issued on the basis that a proposed installation would produce more emissions of a specified pollutant than would occur under another kind of process. In this context I should deal with Mr Taylor's very able submissions on the relationship between ELVs and EQS. He submits that if an ELV has been calculated in accordance with BAT, then a reason for refusal can only exist if the relevant EQS would be breached as a result. He relies on the terms of Articles 2, 3 and 9 of the Directive, and of Regulations 8(3) and 12(6) and (7). In doing so, he contends that there is no duty on the regulator to reduce emissions levels to the minimum, but only to a point where they are not significant. Thus, if one had a proposal where a BAT analysis resulted in an ELV of (say) 800 mg NOx /NM3, then Mr Taylor says that one should look to see whether the local EQS would be exceeded as a result. If it would not be, then he contends that it would be irrational to refuse the permit.
- I reject that submission for the following reasons
- I therefore hold that when considering whether or not to grant or refuse a permit, a regulator must have regard to, but not be confined to the particular size, configuration, design or process proposed in the application for a permit. I am supported in my conclusion by the fact that Chester City Council, via Mr Hosker, CHESTER CC did examine other processes and techniques in its consideration of this application. Quinn also supported them in having done so. Indeed Quinn put material before Mr Hosker CHESTER in connection with its application in a paper purporting to have been produced by Glass Technology Services in 2005 which sought to compare the different types of process at a different furnace size ( 300 tonnes per day). Mr Hosker's evidence CHESTEis that he did consider other types of process, and in particular the oxyfuel process. It is inconceivable that either would have acted as they did had they understood the statutory code as preventing consideration of alternative approaches. If the code, as I have concluded it did and does when properly understood, required consideration of types of process, then it also required consideration of configuration, including the size of the proposed furnaces.
- The City Council's process of reasoning appears from the evidence of Messrs Hosker and Durham, subject to important qualifications which I outline below.
- As I shall describe below, there have been difficulties about establishing what documents Mr Hosker had before him. Fortunately, a solicitor from the claimant's solicitors DLA was allowed to inspect a file on 4th March which is said to have been the file of information which Mr Hosker put before the Chief Executive on 2nd March. The evidence shows that the following documentation was before Mr Hosker
- Quinn had proposed an installation containing two 600 tpd regenerative furnaces feeding 13 production lines. Quinn proposed NOx emission limits of no less than 2000 mg/Nm3 in contrast to the SG 2 figure of 500 mg/Nm3. Mr Hosker considered that the NOx emission levels shown in SG 2 were not achievable for Quinn's installation (his first witness statement paragraph 16). He did so based on a review of other existing installations in the UK, and from discussions with Quinn. However he did consider that 1000 mg/Nm3 was achievable, reducing to 500 mg/ Nm3 in 2009.
- He states that he took into account the published guidance note of the EU (known as BREF) , which he thought provided for "recommended levels" (his phrase) of 500- 1100 mg/Nm3. (paragraph 27).
- He asked Quinn to carry out computerised modelling of the atmospheric dispersion of the NOx, to see what effect it would have on air quality. He concluded that it would not cause an exceedance of local air quality standards. He then conducted a meeting with Quinn. That showed that the contract it had with its plant supplier required the plant to achieve emission levels of 1000 mg/Nm3 (i.e. double the SG 2 level) but that some " headroom" existed to reduce them further. Quinn informed him that they could accept limits of 1000 mg/Nm3 reducing to 500 mg/Nm3 over time. He says that " it is worth noting that as capacity increases, the furnace becomes fuel efficient and this is why concentrations of nitrogen dioxide were expected to fall over time. " He cannot mean "capacity", for that is fixed. However it was claimed to me by Quinn during argument that as throughput increases, so does usage of the furnace, so that over any given period the amount of air reduces as space is taken up by melting glass. I think that must be what he had in mind. As I shall come to below, that contradicts the terms of the permit, and is inconsistent with SG 2.
- He considered that the levels in the permit were the best that could be achieved. He did consider whether an alternative process oxyfuel technology- was preferable. He says that he did some research on the internet and spoke to representatives of local authorities. He concluded that " air gas furnaces optimised to reduce nitrogen dioxide generation was the current BAT for container glass furnaces". His statement sets out the reasons why, in his words " oxyfuel technology was not really a consideration" (paragraph 39). His reasons were
- He then informed Mr Durham of his conclusions. In the conclusion of his statement he stated
- Mr Durham, the Chief Executive, describes the meeting with Mr Hosker. He records that when he asked why the plant could not meet the NOx levels in SG 2 he was informed that
- It will be observed that Mr Durham is giving additional reasons to those given by Mr Hosker for not being able to achieve SG 2 standards at the outset.
- I have set out the account given by Messrs Hosker and Durham. It will be seen that there are the following elements
- Unhappily, some parts of the evidence of Messrs Hosker and Durham are difficult to accept as reliable. I shall set out my reasons for saying that as I deal with the topics addressed by Mr Hosker and Mr Durham.
- On 2nd March 2005, Mr Hosker went to see Mr Durham. It had been the intention of Chester City Council that the IPPC permit and any planning permission be issued at the same time. Thus, the permit was being considered on 2nd March 2005, and the planning application on 3rd March 2005. Had the planning application been " called in" for determination by the First Secretary of State before the meeting. Mr Durham's evidence is that he would not then have gone on to consider the IPPC permit, although there is nothing in the PPC Regulations to have prevented him from doing so. The meeting between Messrs Hosker and Durham went ahead at about 4.00 pm. In fact shortly before the meeting began, GONW sent a fax to Chester CC stating that the application had been called in. Chester CC deny that that fax was received. But after the meeting had started, there is no doubt that the planning officers at Chester CC had been informed by Quinn's solicitors of what had happened. Messrs Hosker and Durham were not informed until after their meeting had finished , by which time the permit had been issued.
- So far as the events of that meeting are concerned, a great deal turns on them, because the challenge here is in part on whether relevant considerations were addressed, and in part on the adequacy of the reasons given. I deal with those matters in the next section.
- As a result of the meeting, Mr Durham issued a permit. He considered that he had authority to do so under the scheme of delegations, whereby the Chief Executive has delegated authority
- Mr Durham relied on Mr Hosker, and, after discussion, adopted his reasoning. Mr Horlock QC was quite explicit that Mr Durham both relied on Mr Hosker's account and consideration, and decided to adopt it.
- I must pause here to say something about the way in which Chester CC has approached its task as a public authority and as a regulator. It is worth remembering the advice given by the Secretary of State in her statutory guidance (" The manual") when dealing with the assessment of BAT
- In this case, the absence of any form of written report or note of the meeting means that Chester CC's approach was not transparent in that sense. Both the claimants and the court has had some real difficulty in establishing what Chester took into account, and why it took the decision it did.
- I start by dealing with the issue of the permit. I then go on to the steps Chester CC and its solicitors took to delay the claimant having copies of the relevant documents. I shall then deal with some important contradictions in the Chester CC evidence.
- The written permit containing the conditions was issued. In the case of emissions of NOx, it did not set limits as per Table 3 of SG2 (i.e. 500mg/Nm3 from the outset). Instead it set the limit for the main process stack as
- On 2nd March 2005 Mr Durham signed a " Report of Action taken" which recorded the grant of the permit, which stated
- That is the only note that was kept of this meeting. It follows that the contents of the binder are important. On 3rd March 2005 DLA Piper Rudnick Gray Cary , Solicitors for Rockware sought copies of the permit , decision, and any report by officers. (I shall refer to the solicitors as " DLA") . It did so under the Environmental Information Regulations, but also mentioned that a challenge to the permit may be made. This was not some request for environmental information that had to be collated from various files. It already existed , put together in a binder. No-one suggests that there was any reason to restrict disclosure of any of the documents concerned.
- On 4th March Rockware's solicitors had sent a member of its firm (Mr Shutler) to examine the documentation. He asked to see the file of documents relating to the decision. Given Mr Durham's certificate that was an entirely reasonable request. The file note records that Mr Hosker would not let him to do so until he had consulted his legal advisers. He then allowed Mr Shutler to look at it (but only in his presence)but refused to provide any copies of any of its contents. He insisted that if Mr Shutler wanted a copy of anything, he must write and ask for it pursuant to the Freedom of Information Act. He did allow Mr Shutler to take a copy of the index. Wisely as it turned out, Mr Shutler made notes about its contents in its then form, which notes have been exhibited.
- Rockware's solicitors DLA then sought copies by letter of 7th March 2005, indicating that it would pay any photocopying costs. Unhappily, that perfectly reasonable request for documents which had already been identified and collated was met with delaying tactics. Mr Hosker replied on 8th March 2005 that the request would be met " within the timescales required by the Environmental Information Regulations 2004". On 9th March 2005 DLA wrote to Mr Hosker and stressed the urgency of the request. It noted that there may be grounds to challenge the grant of the permit, and asked Mr Hosker to take further legal advice. The file note kept by DLA shows that Mr Hosker also informed them by telephone on 9th March 2005 that he planned to provide it within a timescale of 20 days.
- On 10th March 2005 DLA wrote again to Mr Hosker, again seeking copies of the documents, and offering to send someone to collect them. On 11th March 2005 Messrs Eversheds (acting for Chester City Council) wrote cursorily to DLA, referred to DLA's letters of 3rd, 7th, 9th and 10th March 2005, and repeated that the Council had 20 working days in which to answer the request. Now Mr Hosker may not be familiar with practice on judicial review applications, but Eversheds must be taken to be so, although I suspect that the author of that letter may not be at home in this area of the law. The effect of this stonewalling response was to suggest delay of four weeks from the date of the first request on 3rd March, when a claimant is expected to act promptly. I repeat that it was especially inappropriate because, unlike many cases where information is sought, the documents were immediately to hand, and known to be so.
- DLA pointed out on 11th March that this could delay any challenge being made, but on 14th March 2005, Eversheds again refused the request stating " your request goes beyond the bare minimum of documentation of what is required to be kept pursuant to Schedule 9." That answer was particularly absurd, because what DLA were asking for had already been seen, and it was expressly referred to in the Chief Executive's official note of 2nd March 2005. A telephone conversation then took place the same day, which revealed that the documents were now with Eversheds, who were reviewing them.
- DLA reiterated its serious concerns to Eversheds on 15th March, and sought an assurance that " the documents disclosed to us constitute all the documents your client has produced evidencing its decision to issue an IPC permit to Quinn Glass and the reasons for that decision." On 16th March 2005, Eversheds continued to take technical points, and now argued (erroneously) on 17th March 2005 that on 4th March 2005 Mr Shutler had only asked to see the IPPC permit itself.
- The documents were eventually provided on 17th March 2005. They are described by Chester CC (see for example Eversheds' letter of 21st April 2005) as purporting to include the file put before Mr Durham and inspected by Mr Shutler on 4th March 2005. Unhappily, documents had been inserted into that file ( some information from Bassetlaw DC and Barnsley MBC relating to other (existing) glass making facilities), which had not come into existence until after the meeting of the 2nd March. Two other documents had been removed from the file as it was when Mr Shutler saw it (a letter from the Environment Agency to Chester CC of 17th November 2004 and a letter from Technoglas to Chester CC of 3rd March 2005). DLA pressed for an explanation on 22nd March , with a reminder on 4th April 2005 . They got a reply on 5th April. In that letter Eversheds
- On 10th May 2005, Eversheds sent a letter in answer to a letter before action of 25th April 2005 from DLA on behalf of the claimant. It enclosed witness statements from Mr Durham and Mr Hosker. In that statement at paragraph 3 Mr Hosker says
- That statement by Mr Hosker was untrue in part. The Justification File, as served, contained the following documents which did not exist at the time of the meeting on 2nd March 2005 (as well as the permit and the Minute referred to above)
- Mr Durham's statement also contends that
- I have received no explanation which accounts for the fact that a file was put forward as being genuine, but containing documents which it could not have contained, even though it had been the subject of review over some days by the Council's solicitors. I have received no explanation from Mr Hosker for the fact that a file of critical importance was altered after the 2nd March even though it was known to be the subject of a proper request for inspection and copying. I have no evidence of any intention to mislead on his part, but it does show an inadequate and careless approach to the transparency of decision making, and to the keeping and giving of information by a public authority.
- I exempt Messrs Eversheds from any suggestion that they were a party to the file being altered. I have no evidence that they were so involved. However I do criticise them for their unacceptable approach to the DLA requests for copies.
- The delaying tactics and the unexplained addition of documents to a critical file must cast doubt on the reliability of the evidence of Mr Hosker and therefore, because of his reliance on Mr Hosker, on that of Mr Durham. Unhappily this is not the only area where great doubt exists about what Mr Hosker and Mr Durham considered and what reasons Mr Durham relied on to make the decision.
- The next of these areas relates to whether or not Mr Hosker (and Mr Durham) recognized that there are quite different regimes for new and existing installations. The Justification File contains details of several other glass manufacturing installations in the UK (and which the parties agree were all "existing installations" ), and the first witness statement of Mr Hosker (and the first by Mr Durham) refer to the emissions limits set in the permits for those installations. Reference is made to the fact that the emissions of NOx and other pollutants permitted at those installations is much greater than the levels intended at the Quinn installation. There is no point in the documents in the Justification File, or as importantly within the witness statements, which shows Messrs Hosker or Durham ever addressing the fact that the comparisons are between types of installation to which different considerations apply. If they did think that one could simply read across from one type to the other, then it was a serious error on their part.
- Unfortunately, the situation is made worse by Chester CC's stance since the decision. In the Acknowledgement of Service on 17th June 2005, this appears at paragraph 4
- I had no evidence before me from Chester CC which explained why that had been written in the Acknowledgement of Service. However the fact is that while it contradicts Mr Hosker's (and Mr Durham's) evidence that they adopted a BAT analysis and staged the emissions levels according to use of capacity, it is consistent with what Mr Hosker actually did, which was to compare the proposal against existing installations. It also ties in with the fact that Mr Hosker chose as his date for achievement of 500 mg/Nm3 a date just one month before the date fixed in Table 1 of SG 2 for full compliance 1st April 2009. In the absence of evidence that it took no instructions, or acted contrary to its instructions, I cannot accept that an experienced firm such as Eversheds would have included so explicit a statement in its Acknowledgement of Service without having proper instructions on that issue. That again casts the greatest doubt on the original evidence of Mr Hosker and Mr Durham of the reasoning of Chester City Council.
- Regrettably, Chester CC's confusions and inconsistencies did not end there. In a long report written for the Planning Board meeting on 3rd March 2005, the officer (Mr Hughes) , having summarised the advice in SG 2 paragraphs 2.1, 2.2 and Table 3, wrote as follows in the summary
- Mr Hosker's first witness statement contends at paragraph 55 that the emissions limits amounted to
- In the skeleton argument put before the court, Counsel for Chester City Council, no doubt on instructions, argued that there was a departure from the standards in SG2 because of the differences in emission limit. In argument before me however, Mr Horlock QC argued that there was no departure, contending that SG2 permitted different standards to be set.
- While I could have accepted an argument in some cases that a " departure" can be a shorthand way of describing a derivation of limits in accordance with the advice of SG2 on Best Available Techniques which was different from the Table 3 figure, I cannot accept that that is the explanation I should accept for the use of the concept of "departure" in Mr Hosker's and Mr Durham's first witness statements and in the Acknowledgement of Service. Mr Hosker has given two explanations, and Chester CC through its solicitors and counsel another three between them. The account given in the Acknowledgement of Service cannot be reconciled with the Planning Officer's report, nor with Mr Hosker's first witness statement, nor with Mr Durham's. The evidence from senior officers is thus wholly unreliable on this issue a most unsatisfactory state of affairs.
- I again received no evidence that the Acknowledgement of Service was written without the solicitors having instructions on the issue. Experienced solicitors such as Eversheds would know that if they did not have instructions on this issue, then they had to check what was said before the pleading was filed. I have received no evidence that they did not do so. I am not prepared to accept that what appears in that document over a signed declaration of truth is untrue.
- In fact , Mr Hosker's second witness statement is revealing. The reference in the passage cited above
- Even if I were wrong in that last conclusion, I find Mr Hosker's (and therefore Mr Durham's ) evidence and reasoning very difficult to accept on the question whether the limits set were actually the lowest achievable.
- I therefore hold that, whatever view Mr Hosker held about oxyfuel, his choice of emission limits of
- I am fortified in my judgement that these were not the lowest limits achievable by the description given to the process. Mr Durham describes Mr Hosker as having "negotiated standards " (second statement paragraph 25). Mr Hosker in his second witness statement at paragraph 8 records that he was advised by a Mr Etkind, a senior officer of DEFRA that the standards arrived at
- If that is an accurate summary of what Mr Etkind said, it would have meant that a DEFRA official was also misinterpreting the statutory code, which makes no room for compromises, as opposed to robust conclusions derived by rigorous analysis. In fact the E mail from Mr Etkind (Bundle 4 p 295) does not directly support that description, although that does not mean that Mr Hosker's recollection of the discussion is wrong. The E mail sent afterwards by Mr Etkind actually notes that Chester " feel between rock and hard place" because they feared judicial review by either Rockware or Quinn. It went on
- I turn now to the rejection of oxyfuel as an alternative process. I am prepared to accept, although there was evidence within the papers before me that such furnaces do exist, that there is no evidence that Mr Hosker knew of any oxyfuel furnaces anywhere in the world of 600 tpd capacity. It was also agreed that oxyfuel furnaces of = 500 tpd are proven technology, and that he had evidence of that. It is worth noting that the oxyfuel process is identified by BREF as an example of a technique which can produce lower NOx (see paragraph 5.3.2) and SG2 contains references to its potential advantages. The " Glass Technologies" paper also shows it to be so. It will be noted that he refers to this as a " site specific " reason- a label also used by BREF (see 5.3.2). That is in my judgement a misleading description. There was in fact no evidence at all that the choice of process by Quinn had anything to do with the choice of site, or with its characteristics. What Mr Hosker actually meant was that he considered that he was bound to accept the configuration as what Mr Horlock QC called " a given" and thus did not examine oxyfuel processes of = 500 tpd. It is common ground that Mr Hosker considered that he was unable to consider alternative configurations when considering BAT. In my judgement, as set out above, that was a fundamental error of law, and a misinterpretation of the Manual and SG2.
- However he gave two other reasons for rejecting oxyfuel
- To anyone living in the North West of it is no surprise that Ellesmere Port and its vicinity contain a number of COMAH hazard sites. The COMAH regime sets up safety precautions at and around an installation. I accept that the storage of oxygen, in Mr Hosker's view, could lead to an incident such as a BLEVE (Boiling Liquid Evaporating Vapour Explosion once alluringly described to me by a technical witness as " the champagne effect"). But as was made clear by Brooke J (as he then was) in his illuminating discussion of how one deals with arguments on risk in Envirocor Waste Holdings Limited v Secretary of State for the Environment [1996] JPL 489 @ 495-6 it is not enough to identify that a risk may occur. One must make a judgement as to the level of the risk of an incident involving the oxygen (i.e. the likelihood of it occurring) the nature of the consequences, and then determine what weight one gives to it. For example, what is the likelihood of an incident occurring ? Will the incident have consequences that extend off the site ? If so, who or what would be affected ? If so, is the level of risk of that occurring judged acceptable ? These are not unusual issues, and are addressed routinely by the Health and Safety Executive and other regulators, and especially so in the neighbourhood in which this site lies. There is no suggestion anywhere in Chester CC's evidence that Mr Hosker ever addressed the level of risk, or the nature of the consequences, or what weight he should give to it. Having reached my conclusion that he did not address this rigorously, and was setting out a reason for rejecting oxyfuel without the substance a rigorous approach produces, I am comforted to note that he must also have been aware that Chester City Council had raised no objection to the storage of oxygen on site in connection with the original 2000 proposal. Mr Gordon QC also drew my attention to the fact that the Local Planning Authority files showed that Quinn, when proposing the oxyfuel process on this site, had also proposed an alternative solution for oxygen to be piped in from an existing oxygen producer, but I have no evidence that Mr Hosker was aware of it.
- As to CO2 generation, that could be a relevant point. (I also note that the not unrelated topic of energy saving is a relevant matter under Article 3 of the EU Directive). But it is only relevant if the decision maker has asked himself how much would be generated, and how one should evaluate the creation of x mg of CO2 against the saving of y mg of NOx per Nm3 or whatever measure is relevant. What his evidence says he used was the paper of dubious provenance which described oxyfuel furnaces achieving 500 mg/Nm3 as increasing increase CO2 emissions, and included tables showing differences in CO2 emissions as between different technologies . What it actually shows is that there is a lower emission of CO2 from an oxy-gas (oxyfuel) process as opposed to a 3R process (the type Quinn proposed), but that the generation processes involved in the oxy-fuel method produces some emissions of CO2 and NOx. The figures show as follows for a 300 tonne furnace (table edited for purposes of judgement)
- The table can be misunderstood. The figures in the three right hand columns represent the difference between "unabated" at 1300 and "primary measures at 800mg /Nm3, "3R" at 500mg/Nm3 and "oxygas" at 500 mg /Nm3 respectively. Noting that oxyfuel produces less CO2 and NOx from the primary phases, and making allowances for the generation of NOx and CO2 from the generator, then if one wanted to find out the difference between primary measures and oxy-gas at 500 mg/Nm3 , or between primary measures and 3R, or between 3R and oxygas, the penalty section would read, respectively
- Those CO2 penalties must be put in context. The scale of NOx reduction in tonnes is of the order of 37% (primary measures at 800mg as compared to unabated ), 57% (3R at 500 mg as compared to unabated) and 62% (oxygas at 500 mg as compared to unabated (but net after generation), whereas the CO2 equivalents are minus 2%, minus 5.4% and minus 15.4%.
- What that paper did was to evaluate the significance of that ratio and increased emission of CO2 in terms of the cost to the manufacturer. What it did not do was to evaluate the emissions in terms of the EC Directive, where they are treated differently. There is a statutory objective of the permit process to reduce NOx. Apart from questions of cost to the manufacturer, there is nothing in the paper which evaluates the choice between the two in the wider policy context of the EC Directive, or indeed any other policy document.
- Of course, even if I accepted the reasons given by Mr Hosker for his rejection of oxyfuel, he nowhere considers whether the Quinn process at 500 mg/NM3 or indeed at any higher level between that and 1000 mg/Nm3 would be achievable.
- Had he stopped there, I would already have regarded his consideration of this issue as inadequate. But unhappily, Mr Hosker had also referred to CO2 as a greenhouse gas, but never referred to NOx as being one also (see his first witness statement at paragraph 39.3). In fact, NOx is particularly identified in the AQS as a greenhouse gas, as noted above, and is specified as a pollutant of concern in the EU Directive, whereas CO2 (as opposed to CO) is not. In the AQS, NOx is one of the specified pollutants of concern in terms of the effect on air quality, whereas CO2 is not. Now it may well be that CO2 is a greenhouse gas , but so is NOx indirectly through its generation of ozone.
- In my judgement, what is clear is that Mr Hosker sought to downplay the significance of NOx as a greenhouse gas. In his first statement he stated that an oxyfuel furnace would increase " the UK's carbon dioxide emissions. This would have the effect of increasing total UK greenhouse gases" and cites the "Glass Technologies" paper. In his second witness statement he stated at paragraph 11 that
- Unsurprisingly, the claimants then filed a statement from Mr Stone of DLA which pointed out what the AQS said about NOx being both a global pollutant and a contributor to the greenhouse effect, and about the effects of emissions occurring far away (Stone Second Statement paragraphs 41-44). Mr Hosker now claimed in response in his Third Witness Statement that that very clear statement in his Second Statement "had been taken out of context"(see paragraph 29). I find his evidence impossible to accept on this topic. Any competent Environment Manager must have been familiar with the very clear policy advice in the AQS of 2000, which sets out well established facts about the importance of NOx both as a global pollutant and as a greenhouse gas.
- I therefore have the greatest reservations in accepting his third statement as true. But I do not have to make a finding about that, for the evidence is overwhelming that he failed to have regard to the role of NOx as a global pollutant because of its role in the production of ozone, and therefore its role as a greenhouse gas. In doing so, he failed to have regard to national policy (the AQS), and /or had regard to an immaterial consideration (the argument that NOx was not a greenhouse gas) and his reasoning is inadequate.
- I am unable to conclude that had Mr Hosker not made this error, it would have made no difference to his decision. The Defendant did not satisfy me that the decision would have been the same.
- In his first witness statement at paragraph 27, Mr Hosker says that
- In fact , Mr Hosker's evidence shows that he had misunderstood the document. The BREF document actually states in connection with primary measures in the case of conventional processes (like the one proposed here)
- However, in a subsequent statement (his second) Mr Hosker claims that in his first statement he was referring to emission levels and what he regarded as important was the lower level of 500 mg/Nm3. I again find myself driven to finding that Mr Hosker's later explanations cannot be relied on. His first statement is unequivocal: it regarded the BREF figures as " recommended levels" (my italics) and drew the contrast with the UK figure. When one actually looks at the BREF document, it is obvious that what he did was to confuse a statement of fact with a recommendation, and he also failed to read or understand that BREF was actually identifying 500 mg/Nm3 as entirely feasible. Indeed the sentence quoted in the previous subparagraph shows his description of a figure of up to 1100 mg/Nm3 was seriously misleading. Regrettably, it typifies the lack of any rigorous and careful analysis by Chester CC's Environment Manager of the issues relating to a most important application.
- I reject Mr Hosker's second witness statement on this matter. I accept Mr Hosker's first statement as true in other words I find that he did commit the error the claimants allege, and took the BREF document to show "recommended" levels of up to 1100 mg/Nm3. Had he read the document with more care, he would have had to take into account other evidence from BREF about what could be achieved in terms of emissions levels. I therefore find that he failed to consider or address evidence in BREF, which has a particular significance under the Directive, that were relevant to his consideration of the application and of BAT.
- I have already addressed the interrelationship of EQS and the decision to grant or refuse a permit, and to the establishment of BAT. The Regulations and Directive only require them to be addressed if the application of BAT produces an emission limit, which could result in a local EQS being exceeded. That does not mean of course that an EQS is always irrelevant otherwise. In a case where one was considering whether to allow a departure from the decision maker's adopted policy or from national policy, the question of the effect on local air quality could be relevant. However what one may not do is to substitute consideration of the effect on an EQS for proper application of the tests in the Directive and Regulations.
- The passages already quoted from the AQS show the dangers of using effects on local measured or calculated EQS as a way of assessing the wider effects of emissions of NOx.
- What did Mr Hosker, and then Mr Durham, do here ? In his first statement, Mr Hosker described how he persuaded Quinn to reduce the NOx emissions from the level originally proposed of 1400 mg/Nm3 (see paragraphs 28- 34), although a later paragraph says that the original proposal was 2000 mg/Nm3 (paragraph 54) . He did so not because he was concerned about air quality (indeed he was prepared to accept what at first appeared to be an increase above ambient levels of NOx (32 mg/Nm3) to 39 mg/Nm3, close to the EQS limit of 40 mg/Nm3 because he thought that the assumptions in the model were conservative, and because there would be off site monitoring of NOx - see paragraph 29) but because English Nature had expressed concern. (I interpose that it is very hard to understand how anyone, be they Quinn or Mr Hosker, could have considered that 1400 or 2000 mg/Nm3 was consistent with any reasonable application of the Directive and Regulations in the light of the evidence in BREF and elsewhere and the statutory guidance in SG2. Those levels would have represented an emission of between almost 3 and 4 times as much NOx per NM3 as advised in statutory guidance ). After a meeting with Quinn in November 2004, the limit was reduced to 1000 mg/Nm3, and further modelling was carried out.
- Both Mr Hosker and Mr Durham placed weight on the fact that EQS were not exceeded. In his conclusions (paragraph 58) he states that the impact on the environment and the environmental monitoring which would be put in place were among the matters which justified a departure from SG 2.
- If one were simply dealing with a case of a reasoned departure from standards or policy, I consider that the effect on air quality would be a relevant factor. But in this case there are some important matters
- Conclusions on reasoning by Chester City Council
- The power to issue a permit is vested in Chester City Council, but it may determine to delegate it to an officer. It is well established that if it does so, the officer may only act within the scope of the power delegated to him/her.
- In this case, the power given to Mr Durham, as Chief Executive, under what I am told is Rule 29 of the Council's Procedure Rules, was
- It seems to me that the second part "so that there is no real discretion" only makes sense if one reads it as "such that there is no real discretion." I raised that interpretation with counsel at the outset of argument: all parties agree that that is the correct interpretation. It means that it does not apply to all factual or technical matters, but applies only to those factual or technical matters where there is no real discretion to exercise in the making of the decision. That refers to the nature of the decision which is to be made by the Council. It does not refer to decisions where one feels driven by analysis and conclusion to a particular answer. In other words, if one applied it to the BAT analysis of a glass manufacturing installation, the question for the Council was " Does this Council consider that the plant proposed at the emission levels proposed represents the application of BAT such that we may grant a permit under Regulation 10, and if not what changes could we make in granting the permit ?" and not " Given what an officer says, is it possible to set an emission level different to that level which he proposes ?" A Council, or its delegate when exercising its powers, cannot give up the responsibility to reach discretionary judgements by saying that it was bound to accept the advice of its technical officer.
- That delegation under Rule 29 is a sensible power designed to avoid unnecessary reference of routine decisions to a Committee. To give a mundane example, if a condition in a planning permission required that a landscaping scheme as shown on plan XYZ should be implemented before some other step is taken, or a junction laid out in accordance with a technical design guide on junction design, then that would fall within the description. For in those cases the only questions are " has the specified scheme been provided ? " or " has a junction of specified description been provided ?". In the instant technical field, the Council as regulator might have determined to issue a permit provided that the applicant showed that he was to provide some technical feature complying with a specified design guidance note, and the officer acting under Rule 29 then decided that he had shown the provision of the technical feature in question . But here, the Council was required to consider a BAT process, and make judgements upon it in other words make judgements of a type quite outwith the scope of this power.
- That discretion to make a decision refers to the decision to be made by the regulator, and not (as Chester CC said to the court he took it to mean) the situation in this case, which is that Mr Durham thought Mr Hosker had reached the only possible decision on his interpretation of the relevant law, guidance and factual information.
- But even if I were wrong about that, I am quite satisfied that Mr Durham knew very well that this was a decision where there were judgements to be made by him as the decision maker. I have referred already to his references to the process that had gone on as one of "negotiation." But most of all, one only has to look at the phrase he used in his first witness statement at paragraph 25, which Mr Horlock QC accepted showed that he was exercising a real discretion:
- I therefore hold that Mr Durham acted outside the scope of his authority in issuing the permit.
- Mr Gordon QC contends that because Mr Durham's stated objective was to deal with the permit and the planning application at the same time (i.e. . he would consider the permit on 2nd March 2005, and the Planning Committee would consider the planning application on 3rd March 2005) that once he knew or had reason to know that the planning application was being called in, he should not have considered issuing the permit.
- As already noted there is nothing in the PPC Regulations which prevents a permit being issued before the planning permission is in existence. That being so, Mr Gordon QC was driven to argue that the basis for his challenge was that he had an objective which would fall away once the application had been called in.
- I have already found that Mr Durham and Mr Hosker did not know that the First Secretary of State had called in the planning application for determination by himself. That is now apparent from their statements, which I accept. (I should point out that until their statements were received, the timings of the fax sent from GONW made it appear that the City Council was aware of the call in before the meeting ) That being so, I confess to find that I am at a loss to understand how Mr Gordon QC puts his case. He argued rather halfheartedly that he was under a duty to check with GONW if the call in decision had been made. I do not understand how such a duty arises. In my judgement, the Chief Executive was entitled to treat the planning application as still for his Council to consider unless and until he was informed that it had been called in.
- I reject this ground of challenge.
- I start by dealing with the authorities.
- By section 31(3) of the Supreme Court Act 1981, the court shall not grant leave for the making of an application for judicial review " unless it considers that the applicant has a sufficient interest in the matter to which the application relates."
- I adopt the approach of Sedley J (as he then was) in R v Somerset CC and ARC Southern Limited ex p Dixon [1998] Env LR 111 @ 116- 121, in which he applied the tests set out by Lord Donaldson MR in R v Monopolies and Mergers Commission ex p Argyll [1986] 1 WLR @773 following R v IRC ex p Nat Fed for Self Employed [ 1982] AC 617. Provided that an applicant is more than a mere busybody, and there is no discretionary bar, the matter should be dealt with in the hearing of the substantive application, when it is one of the factors to be weighed in the balance in the exercise of discretion. In other words the threshold in s 31(3) is, as Sedley J put it " set only at the height necessary to prevent abuse."
- I have also considered the judgement of Purchas LJ in R v Sec of State for Transport ex p Presvac Engineering and another [1991] 4 Admin LR 121 @ 139G- 140F and 145E- H, and especially the passage at 140D- 140F from which all three parties sought comfort. I must confess to finding some difficulties, no doubt all of my own making, in discerning all of its subtleties. But what Purchas LJ appeared to be holding was that
- Counsel for Chester CC and Quinn wanted me to deal with Rockware's standing as a preliminary issue. I declined to do so, preferring to hear the arguments on the substantive application before reaching my conclusions on this matter. In my judgement that is precisely in accordance with the principles cited above.
- Both Chester CC and Quinn argued that Rockware was merely protecting its commercial interests as a competitor and had no sufficient interest. Mr Taylor drew my attention to two recent authorities : R (On the Application of Feakins) v Secretary of State [2003] EWCA Civ 1546 and R(on the application of Noble Organisation Limited) v Thanet D C [2005] EWCA Civ 782. In Feakins Dyson LJ said:
- Mr Taylor argued, rightly in my view, that the mere fact that a Claimant is a commercial competitor does not provide the necessary standing to challenge a decision taken within the PPC system. Put that way, no-one could disagree. I also agree that one must also guard against the type of challenge with which Auld LJ was dealing. But then I depart from Mr Taylor's able submissions. For it does not follow from either of those two judgements that a commercial competitor cannot have sufficient standing simply because he is seeking to protect his commercial position. Whether he does so or not depends on the subject matter. As with all such matters there is inevitably a spectrum of cases falling on either side of the line. To take an example from the planning field, suppose AB plc gets permission for a superstore a mile outside the town centre on a playing field, in breach of statutory Development Plan and national policies, and those policies have been overlooked or misinterpreted by the local planning authority. CD plc which has a superstore built on another playing field a mile from the same town centre would have little basis for a challenge, whereas EF plc , which has bought a town centre site allocated for retailing in the statutory Development Plan, would almost certainly do so. They both have the same commercial interest, but their cases are quite different.
- It is also important to note that a commercial interest in one part of the economy (say retailing) is not necessarily to be taken as representative of an interest in any other part of the economy (such as glass manufacture) . So far as container glass is concerned, there are only a few manufacturers. The unchallenged evidence before me was that the Quinn plant would add a substantial amount of capacity to the existing market (Mr Swindell of Rockware in his witness statement gives a figure of 25% excess of capacity over production in the UK) .
- Mr Swindell sets out the situation in the glass industry. I have already noted how the statutory code treats existing installations. Mr Swindells' evidence , which I accept, shows that the site layouts, building designs, furnace types etc of the existing glass manufacturers predate (by very many years in some cases) the new standards. Time is required to make the very substantial investments to bring them up to standard, and is expressly allowed for in the statutory code. Mr Swindell's evidence, which I accept, is that adaptation of an existing installation to achieve the SG 2 standards will require greater investment than a new built installation where the entire system, and its buildings, are designed to meet the new standards. The guidance in SG 2, which included Table 1 on times for compliance for existing installations and the setting of a new standard in Table 3 , as I have described above, followed consultation with the glass industry. Industrialists in that industry have a legitimate cause to complain if standards arrived at thus are then not applied in a consistent manner, based on a proper application of the standards and principles thus arrived at.
- Mr Swindell also gives evidence, which again I accept, that the playing field extends outside the UK. Glass manufactured at Elton can be sold across the EU, although emissions standards would have demanded tighter controls in Germany (see above 800 mg/Nm3 for existing and 500 mg/ Nm3 and tighter still in France (400 mg according to Mr Swindell). Mr Swindell summarises the position thus at his paragraph 30-2
- I accept that evidence and those arguments. I was at one time attracted to the argument made by Mr Horlock QC that effectively Rockware was seeking to prevent a competitor coming into the market who would operate at better than the standards at Rockware's plants, albeit still at standards higher than laid down in SG2. But that is, I am satisfied, too simplistic an approach, for it overlooks the fact that in an industrial sector with substantial investment decisions to be made on capital works, it is a proper interest to seek to ensure that one's few competitors are subject to the same consistency of approach. It also overlooks the fact that the unacceptable and lax Chester CC approach to the issue of this permit, if unchallenged, could allow other glass manufacturers to bring forward inadequate proposals. I consider that the other industrialists in this sector have the right to seek a consistency of approach. If what one was dealing with here were less important breaches of the code and the process had involved some attempt at rigorous analysis of BAT, then the sufficiency of interest may have been less easy to discern, but the deficiencies in Chester's approach are so serious, and have such serious implications for the regulation of the whole sector, that I am satisfied that a sufficient interest exists to grant relief, should I be satisfied that it is otherwise proper to do so.
- I was also reminded by Mr Gordon QC that no points on standing were taken by Quinn or Chester CC in the previous judicial review challenge , which related to what might be seen as a much more local issue, namely the absence of an Environmental Statement.
- Chester CC did not argue that the application for permission had been made anything other than promptly. However Quinn argued that it had not been issued promptly in accordance with Part 54.5 of the Civil Procedure Rules, which provides
- I have recited the unfortunate history relating to the production of documents by Chester CC above. I should add the following matters to the facts there set out;
- In my judgement the vast bulk of the delay between 2nd March and 25th May 2005 was attributable to the inexcusable delays of the Defendant's solicitors Messrs Eversheds . I assume that as experienced solicitors that firm is very well aware of the importance of getting on with it when one is dealing with a judicial review application, and of statutory bodies and their advisers ensuring that all relevant non-confidential material is provided on request within a reasonable timescale. It seems to me that Rockware and its solicitors were doing what they could to persuade Eversheds to get on with it. Mr Taylor for Quinn argues that Rockware could and should have issued the proceedings without waiting for Eversheds to reply. In my judgement, it was reasonable for Rockware to await the response to its questions and allegations.
- But it is also right to say that the problems which this challenge has caused and will cause Quinn are to a large part of its own making. I have no doubt that, as its witness Mr O'Reilly says in his evidence, closing down the furnaces will involve it in very substantial costs, potential loss of employment for its employees, loss of business and loss of profit. But the fact is that it was planning to go ahead with this project , to the extent of letting contracts, taking on large numbers of staff, and entering into commitments, long before the 2nd March 2005, when it had neither a planning permission nor an IPPC permit. No doubt it felt encouraged by the fact that Chester CC, as the local planning authority had made it plain that it wanted to see their development go ahead, and reassured by the discussions it had had with Mr Hosker. But none of that is a substitute for an actual planning permission or permit issued in accordance with the appropriate statutory code. Indeed it had built the plant without a planning permission being in existence, construction having started and continued after it was quashed, and before the permit existed. It then continued to proceed to fire up the furnaces despite knowing that Rockware had warned that it was under challenge, and knowing that the planning application had been called in. It has taken a calculated risk with its eyes open. I do not consider that the adverse effects which it will sustain are such as to strike out a claim which I have determined is well made and was made promptly. I feel nothing but sympathy with those employees who have assumed that its new employer was in a position to operate its plant.
- It was urged on me by Quinn, but not by Chester CC, that an alternative route existed for Rockware, which was to invite the Secretary of State to intervene. Quinn point out that she has the power to call in an application for a PPC permit for his determination (Schedule 4 paragraph 14 of the PPC Regulations) The Secretary of State has the power to give directions of a specific character to Regulators with respect to the carrying out of their functions (Regulations 36(1) of the PPC Regulations). This includes the ability to direct a Regulator to exercise its powers in any particular way (Regulations 36(2) of the PPC Regulations). Mr Taylor points out that the Regulator also has the power to vary the conditions of a permit at any time (Regulation 17(1) of the PPC Regulations). The Secretary of State has the power to give directions of a specific character to Regulators with respect to the carrying out of their functions (Regulations 36(1) of the PPC Regulations). This includes the ability to direct a Regulator to exercise its powers in any particular way (Regulations 36(2) of the PPC Regulations). The Secretary of State could, says Mr Taylor, therefore issue a Direction requiring the Council to vary the conditions imposed upon the PPC permit at any time.
- I reject this approach. As Mr Gordon QC pointed out, there is no evidence of any call in of an IPPC application ever having occurred. But more than that, the rationale of the general rule that an alternative avenue should be used instead of judicial review is based on the alternative being a more suitable remedy. It is exemplified by the discussion in R v Sandwell Metropolitan Borough Council ex p. Wilkinson (1999) 31 HLR 22 @ 28) where Laws J (as he then was) stated, in the context of a late application for judicial review of a refusal of housing benefit made after a subsequent unsuccessful review hearing
- There is an additional, and in my judgement compelling reason why judicial review is appropriate in this case. The planning inquiry into the called in planning application starts at the end of November 2005. It is essential in my judgement that the Inspector (and First Secretary of State) conduct that inquiry with the legal status of the permit of 2nd March 2005 having been addressed. It is thus convenient in the public interest that this issue is determined now by judicial review instead of by a call in which may or may not occur.
- Mr Taylor submitted that whilst he accepted that the Court's discretion not to quash is narrow, the Court nevertheless needed to consider whether there is a real possibility on reconsideration that the Council might reach a different conclusion (see Bolton MBC v SSE (1990) 61 P&CR 343 per Glidewell LJ). He submitted that if there is no such "real possibility" then to grant the relief would not serve the public interest. In my judgement the failures by Mr Hosker, and therefore by Mr Durham, are so substantial, the reasoning so poor, and the misunderstanding of the pollution control code and of statutory guidance so great, that there is a very real possibility that the Council, once it addresses the matter properly, would reach a different decision.
- There were no other grounds argued before me why I should not exercise my discretion to grant relief. In my judgement the errors of law , the failures in the process of consideration and the flaws in the reasoning are so substantial, and the interests of Rockware sufficiently affected that I should exercise my discretion to grant the relief claimed and quash the permit.
- I therefore
- I will hear submissions on the form of the Order to be made.
- I pay tribute to the excellence of the submissions made to me by Mr Gordon QC, Mr Horlock QC, and Mr Taylor. Their respective clients' cases were robustly but realistically argued, and my judicial task much assisted.
| Summary |
| Judgment |
| Appendix 1 |
| Appendix 2 |
| Appendix 3 |
| Order |
JUDGE GILBART QC:
Introduction
(a) Mr Durham had no authority to decide to issue the permit(b) The Council had failed properly to interpret and apply the relevant EU Directive (Directive 96/61/EC relating to Integrated Pollution Prevention and Control ) and the Pollution Prevention and Control (England and Wales) Regulations 2000 SI No 1973, (" PPC Regs") which were made pursuant to the Pollution Prevention and Control Act 1999
(c) The Council had misinterpreted the statutory guidance note SG2 issued by the Secretary of State for the Environment pursuant to the PPC Regs.
(d) The Council had taken irrelevant considerations into account and had failed to take material considerations into account
(e) It was irrational to have reached a decision on the application for a permit when he did not take steps to determine whether the concurrent planning application had been called in for determination by the First Secretary of State
Structure of judgement
(a) Identifying the central issues
(b) Engineering context
(c) The Application in question and its consideration by Chester City Council.
(d) Decision making by the Local Authority as Regulator- Legal Principles
(e) The Pollution Prevention and Control Code (1) Legislation
(f) The Pollution Prevention and Control Code (2) Published guidance
(g) New or existing installations: some differences in regulation and standards
(h) Must the regulator take the furnace size, configuration and the choice of process as a given when considering the application ?
(i) The reasoning of Chester City Council
(j) The scope of the Chief Executive's authority
(k) The relationship to the call in
(l) Whether Rockware have sufficient interest to seek or obtain judicial review
(m) Delay arguments
(n) Discretion generally
(o) Conclusion.
(a) As I describe below, the central issue in this litigation is one where no authority currently exists, and I have been asked by the regulator to give guidance for future applications;
(b) The case involves the interpretation and application of an important part of the European and UK legislation designed to protect the environment from industrial pollution;
(c) The process concerned has involved major investment, and shutting it down would involve substantial further costs (estimated by Quinn at £110,000 plus a shortening of the life of the installation at a cost of £ 2.2 million, plus costs of lost production (£ 100,000 per month) payments to suppliers (£ 64,000 per month) ) and a loss of profit, estimated by Quinn at £ 2 million . It is also said that there would be ongoing losses of interest on capital expenditure;
(d) Quinn have taken on a workforce of 220 people, and contend that it would have to lay them off if the permit were quashed. The costs of doing so would be some £ 1.1 million;
(e) It follows that there are powerful reasons why the judgement in this matter should be considered and thorough.
The central issues
(a) the degree to which the technique, production capacity and process configuration proposed by the applicant is determinative of the process, criteria and considerations by which the application is to be judged by the regulator;
(b) whether the process of consideration and reasoning of the regulator in this case was flawed;
(c) whether authority rested in the Chief Executive of the regulator to make the decision;
(d) whether he should have made a decision or waited until he knew that the concurrent planning application had been called in.
(e) whether Rockware has a sufficient interest
(f) whether the application was made promptly
(g) whether, if I find that any of the substantive grounds for challenge are made out, I should exercise my discretion to grant relief
. Engineering context
"NITROGEN DIOXIDE
Objectives
188. Objectives for nitrogen dioxide reflect evidence that it may have both acute (short-term) and chronic (long-term) effects on health, particularly in people with asthma. As a result, the Government and the devolved administrations have set two provisional objectives:
200΅g/m3 (105ppb) as a 1 hour mean, not to be exceeded more than 18 times per year; and
40΅g/m3 (21ppb) as an annual mean.
189. Both are to be achieved by the end of 2005. We have also set a further objective for the protection of vegetation of 30΅g/m3 (16ppb) NOx as a national objective, to be achieved by 31 December 2000. This will not be included in regulations for the purposes of LAQM. This is explained in paragraphs 303-305."
(a) Because of its transboundary nature, concerted action is needed in the EU to reduce ambient levels of ozone (paragraph 216)
(b) Ozone in the lower atmosphere is primarily formed by chemical reactions, caused by sunlight, whereby NOx and VOCs (volatile organic compounds), derived mainly from man-made sources, react to form it. NOx and VOCs, which are produced by industrial and other processes, are the most important precursors of ozone (219). As that paragraph says:
" Ozone is also a greenhouse gas, so NOx and VOCs can be considered greenhouse gases"
(c) The chemical reactions involved take a long time (from several hours into several days) and the ozone may persist for several days so that ozone measured at one location may actually have arisen from VOC or NOx emissions many hundreds or even thousands of kilometres away, and may then travel further for similar distances (220);
(d) In NW Europe the problem is an international one (223)
(e) It is intended that UK measures to reduce NOx and VOC emissions will have a significant impact on domestically generated ozone (233) .
(a) An amount of substance x will be emitted per unit of time say x grams of NOx per second;
(b) An amount of a substance will be emitted according to the amount of glass manufactured say y grams of NOx per tonne of glass manufactured;
(c) A proportion of the total emitted from the stack- say z mg per Nm3 of exhaust volume (remembering always that the stack will be emitting so many Nm3 per second) (NB the prefix N before m3 stands for Normal pressure, so that comparisons can be made on a like for like basis)
(a) Cross fired regenerative
(b) Oxyfuel
The Application In Question and its consideration by Chester City Council.
| First Quinn Glass planning application made for site at Ince - for plant with three oxyfuel furnaces of 400 tonnes per day each | May 2000 |
| Amended Quinn Glass planning application made - for plant with two oxyfuel furnaces of 600 tonnes per day each | August 2000 |
| Meeting between Quinn and Chester where Quinn state desire to start building at start of 2004 and commence production in February 2005. | 23 October 2003 |
| Application made by Quinn Glass for revised planning permission - for plant with two furnaces (no longer oxyfuel) and production lines increased from 8 to 13 lines | 12 December 2003 |
| Principal construction activities start on site | January 2004 |
| Plant granted revised planning permission | 3 March 2004 |
| Rockware Glass issue challenge to revised planning permission on the grounds that no Environmental Assessment carried out/submitted | 19 May 2004 |
| Quinn's solicitor confirms that the plant is already programmed to open in 2005 | 28 June 2004 |
| Revised planning permission quashed by consent (by Harrison J) | 22 July 2004 |
| Further application made by Quinn Glass for revised planning permission, with new Environmental Statement | On or around 23 July 2004 |
| Initial application for IPPC Permit made by Quinn Glass to Chester City Council | 10 August 2004 |
| DLA Piper, Solicitors, write on behalf of Rockware Glass to seek call in by the First Secretary of State of the 2004 revised Quinn Glass planning application | 10 August 2004 |
| Quinn Glass lodged amended application for IPPC Permit. | 15 October 2004 |
| Meeting between Quinn and Chester (attended by Mr David Hosker and others) where change in furnace type discussed | 4 November 2004 |
| Mr Hosker wrote to Quinn Glass indicating that their application did not comply with SG2 | 24 November 2004 |
| Meeting between Quinn Glass and Mr Hosker and submission of revised NOx emission abatement proposals by Quinn Glass | 26 November 2004 |
| Mr Hosker prepared a report to Chester City Council members on Quinn Glass' IPPC application. | November 2004 |
| Quinn confirms to Chester CC that it has "significant and confirmed trade orders" for produce from the site | December 2004 |
| Mr Hosker prepared a further report to Chester City Council members on Quinn Glass' IPPC application. | February 2005 |
| Report written for consideration by Chester CC by Brian Hughes, its Development Co-ordination Manager, i.e. the Planning Officer at the Defendant responsible for the Quinn planning application. | February 2005 |
| Mr Hosker meets Chief Executive of Chester CC (Mr Paul Durham), and permit is issued by Chief Executive | 2nd March 2005 |
| Government Office for North West ( "GONW") notifies Chester CC that planning application called in for determination by First Secretary of State | 2nd March 2005 |
| Date of Planning Board meeting of Chester CC at which planning application was to have been considered | 3rd March 2005 |
| Rockware's solicitors warn Quinn's solicitors that they were instructed to get the permit withdrawn or have it quashed | 9th March 2005 |
| Quinn's solicitors write that " .the development .has been proceeding uninterrupted since October 2003. At the time of your challenge to the approval of amendments to the ..planning permission .our clients have made it abundantly clear that they intended to continue with their development. our clients have made long term contractual commitments to suppliers of materials, plant and equipment, and to glass purchasers, and have employed 118 full time glass manufacturing staff, most of whom are close to completing full-time training the start of production is imminent." | 11th March 2005 |
| Quinn fire up furnaces | 11th April 2005 |
" to deal with matters where a decision nominally to be made by the Council is governed substantially by matters of fact or technical factors so that there is no real discretion."
Decision making by the Local Authority As Regulator- Legal Principles
(a) Since the statutory guidance sets out government policy for the exercise of powers under the PPC Regulations, the regulator must give clear and cogent reasons for departing from it: Gransden (EC) v SSE [1986] JPL 519 at 521. Although that is a planning case where there are express statutory duties relating to the giving of reasons and taking material considerations into account, its principles have been applied to all types of decisions. This is particularly important in the context of technical guidance relating to national industry, where the bodies being regulated can reasonably expect decisions to be guided by consistent and scientifically informed national policy: R v Tandridge DC ex parte Al Fayed [2000] 79 P&CR 227 at 232 per Carnwath J.
(b) He must interpret the policy correctly. A failure to do so amounts to a failure to have regard to a material consideration: see Gransden above
(c) Whether or not reasons are required in law, where they are given their adequacy falls to be tested against the same criteria as if they were legally required: R v Criminal Injuries Compensation Board ex parte Moore [1999] 2 All ER 90 at 95j
(d) Reasons must be adequate , intelligible, and must deal with the principal relevant issues.
The Pollution Prevention and Control Code (1) Legislation
The recitals in 96/61/EC (all of which are relevant in some way to this case)
appear in Appendix 1 to this judgement.
"Article 1
Purpose and scope
The purpose of this Directive is to achieve integrated prevention and control of pollution arising from the activities listed in Annex I. It lays down measures designed to prevent or, where that is not practicable, to reduce emissions in the air, water and land from the abovementioned activities, including measures concerning waste, in order to achieve a high level of protection of the environment taken as a whole, without prejudice to Directive 85/337/EEC and other relevant Community provisions."
"ANNEX I
CATEGORIES OF INDUSTRIAL ACTIVITIES REFERRED TO IN ARTICLE 1
1
2 .
3. Mineral industry
3.1. Installations for the production of cement clinker in rotary kilns with a production capacity exceeding 500 tonnes per day or lime in rotary kilns with a production capacity exceeding 50 tonnes per day or in other furnaces with a production capacity exceeding 50 tonnes per day
3.2. Installations for the production of asbestos and the manufacture of asbestos-based products
3.3. Installations for the manufacture of glass including glass fibre with a melting capacity exceeding 20 tonnes per day
3.4. Installations for melting mineral substances including the production of mineral fibres with a melting capacity exceeding 20 tonnes per day
3.5. Installations for the manufacture of ceramic products by firing, in particular roofing tiles, bricks, refractory bricks, tiles, stoneware or porcelain, with a production capacity exceeding 75 tonnes per day, and/or with a kiln capacity exceeding 4 m³ and with a setting density per kiln exceeding 300 kg/m³ "
It will be noted that those are descriptions of types of process.
"Article 3
General principles governing the basic obligations of the operator
Member States shall take the necessary measures to provide that the competent authorities ensure that installations are operated in such a way that:
(a) all the appropriate preventive(sic) measures are taken against pollution, in particular through application of the best available techniques;
(b) no significant pollution is caused;
(c) ..
(d) energy is used efficiently;
(e) the necessary measures are taken to prevent accidents and limit their consequences;
(f) .
For the purposes of compliance with this Article, it shall be sufficient if Member States ensure that the competent authorities take account of the general principles set out in this Article when they determine the conditions of the permit.
Article 4
Permits for new installations
Member States shall take the necessary measures to ensure that no new installation is operated without a permit issued in accordance with this Directive, ."
11. 'best available techniques` shall mean 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
that is not practicable, generally to reduce emissions and the impact on the
environment as a whole:
- 'techniques` shall include both the technology used and the way in
which the installation is designed, built, maintained, operated and
decommissioned,
- 'available` techniques shall mean those developed on a scale which
allows implementation in the relevant industrial sector, under
economically and technically viable conditions, taking into
consideration the costs and advantages, whether or not the
techniques are used or produced inside the Member State in
question, as long as they are reasonably accessible to the operator,
- 'best` shall mean most effective in achieving a high general level of
protection of the environment as a whole.
In determining the best available techniques, special consideration should be
given to the items listed in Annex IV"
"ANNEX IV
Considerations to be taken into account generally or in specific cases when determining best available techniques, as defined in Article 2 (11), bearing in mind the likely costs and benefits of a measure and the principles of precaution and prevention:
1. the use of low-waste technology;
2. the use of less hazardous substances;
3. the furthering of recovery and recycling of substances generated and used in the process and of waste, where appropriate;
4. comparable processes, facilities or methods of operation which have been tried with success on an industrial scale;
5. technological advances and changes in scientific knowledge and understanding;
6. the nature, effects and volume of the emissions concerned;
7. the commissioning dates for new or existing installations;
8. the length of time needed to introduce the best available technique;
9. the consumption and nature of raw materials (including water) used in the process and their energy efficiency;
10. the need to prevent or reduce to a minimum the overall impact of the emissions on the environment and the risks to it;
11. the need to prevent accidents and to minimize the consequences for the environment;
12. the information published by the Commission pursuant to Article 16 (2) or by international organizations."
The emphasis on reducing emissions as far as possible reappears in Article 6 on applications for permits
Article 6
Applications for permits
1. Member States shall take the necessary measures to ensure that an application to the competent authority for a permit includes a description of:
- the installation and its activities,
- the raw and auxiliary materials, other substances and the energy used in or generated by the installation,
- the sources of emissions from the installation,
- the conditions of the site of the installation,
- the nature and quantities of foreseeable emissions from the installation into each medium as well as identification of significant effects of the emissions on the environment,
- the proposed technology and other techniques for preventing or, where this not possible, reducing emissions from the installation,
- where necessary, measures for the prevention and recovery of waste generated by the installation,
- further measures planned to comply with the general principles of the basic obligations of the operator as provided for in Article 3,
- measures planned to monitor emissions into the environment.
An application for a permit shall also include a non-technical summary of the details referred to in the above indents.
2. ."
"Article 8
Decisions
Without prejudice to other requirements laid down in national or Community legislation, the competent authority shall grant a permit containing conditions guaranteeing that the installation complies with the requirements of this Directive or, if it does not, shall refuse to grant the permit.
All permits granted and modified permits must include details of the arrangements made for air, water and land protection as referred to in this Directive."
I shall return to this Article below.
"Article 9
Conditions of the permit
1. Member States shall ensure that the permit includes all measures necessary for compliance with the requirements of Articles 3 and 10 for the granting of permits in order to achieve a high level of protection for the environment as a whole by means of protection of the air, water and land.
2. In the case of a new installation or a substantial change where Article 4 of Directive 85/337/EEC applies, any relevant information obtained or conclusion arrived at pursuant to Articles 5, 6 and 7 of that Directive shall be taken into consideration for the purposes of granting the permit.
3. The permit shall include emission limit values for pollutants, in particular, those listed in Annex III, likely to be emitted from the installation concerned in significant quantities, having regard to their nature and their potential to transfer pollution from one medium to another (water, air and land). If necessary, the permit shall include appropriate requirements ensuring protection of the soil and ground water and measures concerning the management of waste generated by the installation. Where appropriate, limit values may be supplemented or replaced by equivalent parameters or technical measures.
For installations under subheading 6.6 in Annex I, emission limit values laid down in accordance with this paragraph shall take into account practical considerations appropriate to these categories of installation.
4. Without prejudice to Article 10, the emission limit values and the equivalent parameters and technical measures referred to in paragraph 3 shall be based on the best available techniques, without prescribing the use of any technique or specific technology, but taking into account the technical characteristics of the installation concerned, its geographical location and the local environmental conditions. In all circumstances, the conditions of the permit shall contain provisions on the minimization of long-distance or transboundary pollution and ensure a high level of protection for the environment as a whole.
5. The permit shall contain suitable release monitoring requirements, specifying measurement methodology and frequency, evaluation procedure and an obligation to supply the competent authority with data required for checking compliance with the permit.
For installations under subheading 6.6 in Annex I, the measures referred to in this paragraph may take account of costs and benefits.
6. The permit shall contain measures relating to conditions other than normal operating conditions. Thus, where there is a risk that the environment may be affected, appropriate provision shall be made for start-up, leaks malfunctions, momentary stoppages and definitive cessation of operations.
The permit may also contain temporary derogations from the requirements of paragraph 4 if a rehabilitation plan approved by the competent authority ensures that these requirements will be met within six months and if the project leads to a reduction of pollution.
7. The permit may contain such other specific conditions for the purposes of this Directive as the Member State or competent authority may think fit.
8. Without prejudice to the obligation to implement a permit procedure pursuant to this Directive, Member States may prescribe certain requirements for certain categories of installations in general binding rules instead of including them in individual permit conditions, provided that an integrated approach and an equivalent high level of environmental protection as a whole are ensured."
"Article 10
Best available techniques and environmental quality standards
Where an environmental quality standard requires stricter conditions than those achievable by the use of the best available techniques, additional measures shall in particular be required in the permit, without prejudice to other measures which might be taken to comply with environmental quality standards."
Developments in best available techniques
Member States shall ensure that the competent authority follows or is informed of developments in best available techniques.
"6. 'emission limit values` shall mean the mass, expressed in terms of certain specific parameters, concentration and/or level of an emission, which may not be exceeded during one or more periods of time. Emission limit values may also be laid down for certain groups, families or categories of substances, in particular for those listed in Annex III.
The emission limit values for substances shall normally apply at the point where the emissions leave the installation, any dilution being disregarded when determining them "
NOx (but not Carbon Dioxide (CO2) - a point of relevance for reasons which appear later) is one of the Annex III substances relevant to emissions to air, described as
"INDICATIVE LIST OF THE MAIN POLLUTING SUBSTANCES TO BE TAKEN INTO ACCOUNT IF THEY ARE RELEVANT FOR FIXING EMISSION LIMIT VALUES"
"7 Applications
(1) A regulator may require any application or type of application made to it under any provision of these Regulations to be made on a form made available by the regulator.
(2) A form made available by a regulator under paragraph (1) shall specify the information required by the regulator to determine the application, which shall include any information required to be contained in the application by the provision of these Regulations under which the application is made.
(3)- (6) .."
"shall be exercisable for the purpose of achieving a high level of protection of the environment taken as a whole by, in particular, preventing or, where that is not practicable, reducing emissions into the air, water and land." (Reg 8(3))
It is also the duty of a regulator " to follow developments in best available techniques"
(Reg 8(14))
(a) General provisions relating to permits : Reg 10
(b) General principles relating to conditions: Reg 11
(c) Conditions of permits- specific requirements : Reg 12
(d) (12A, 14)- not relevant here)
(e) Review by regulators of conditions of permits: Reg 15
(f) (16 not relevant here)
(g) Variation of conditions of permits; Reg 17.
(h) (18-20 not relevant here)
(i) Revocation without compensation: Reg 21.
"10 (2) Subject to paragraphs (3) and (4), where an application is duly made to the regulator, the regulator shall either grant the permit subject to the conditions required or authorised to be imposed by [regulation 12 or 12A] [below (or regulation 8 of the 2002 Regulations)] or refuse the permit."
By Regulation 11 (1),
(1) When determining the conditions of a permit, the regulator shall take account of the general principles set out in paragraph (2) and, in the case of a permit authorising the operation of a Part A installation or Part A mobile plant, the additional general principles set out in paragraph (3).
(2) The general principles referred to in paragraph (1) are that installations and mobile plant should be operated in such a way that
(a) all the appropriate preventative measures are taken against pollution, in particular through application of the best available techniques; and
(b) no significant pollution is caused.
(3) The additional general principles referred to in paragraph (1) in relation to a permit authorising the operation of a Part A installation or a Part A mobile plant are that the installation or mobile plant should be operated in such a way that
(a) waste production is avoided in accordance with Council Directive 75/442/EEC on waste; and where waste is produced, it is recovered or, where that is technically and economically impossible, it is disposed of while avoiding or reducing any impact on the environment;
(b) energy is used efficiently;
(c) the necessary measures are taken to prevent accidents and limit their consequences,
and that, upon the definitive cessation of activities, the necessary measures should be taken to avoid any pollution risk and to return the site of the installation or mobile plant to a satisfactory state.
Regulation 12 deals with specific requirements
(1) Subject to paragraphs (15) and (16) and regulations 13 and 14, there shall be included in a permit
(a) such conditions as the regulator considers appropriate to comply with paragraphs (2) to (8); and
(b) in relation to any Part A installation or Part A mobile plant authorised by the permit
(i) , and
(ii) such other conditions (if any) applying in relation to the Part A installation or Part A mobile plant, in addition to those required by sub-paragraphs (a) and (b)(i), as appear to the regulator to be appropriate, when taken with the condition implied by paragraph (10), for the purpose of ensuring a high level of protection for the environment as a whole, taking into account, in particular, the general principles set out in regulation 11;
(c ) .
(2) Subject to [paragraphs (8) and (8A)], a permit shall include emission
limit values for pollutants, in particular those listed in Schedule 5, likely to be
emitted from the installation or mobile plant in significant quantities, having
regard to their nature and, in the case of emissions from a Part A installation
or a Part A mobile plant, their potential to transfer pollution from one
environmental medium to another.
(3) Where appropriate, the emission limit values required by paragraph (2)
may apply to groups of pollutants rather than to individual pollutants.
(4) The emission limit values required by paragraph (2) shall normally
apply at the point at which the emissions leave the installation or mobile plant, any dilution being disregarded when determining them.
(5) ..
(6) Subject to paragraph (7), the emission limit values required by paragraph (2) shall be based on the best available techniques for the description of installation or mobile plant concerned but shall take account of the technical characteristics of the particular installation or mobile plant being permitted, and, in the case of an installation or Part A mobile plant, its geographical location and the local environmental conditions.
(7) Where an environmental quality standard requires stricter emission limit values than those that would be imposed pursuant to paragraph (6), paragraph (2) shall require those stricter emission limit values; and for the purpose of this paragraph "environmental quality standard" means the set of requirements which must be fulfilled at a given time by a given environment or particular part thereof, as set out in Community legislation.
(8) Where appropriate [subject to paragraph (8A)], the emission limit values required by paragraph (2) may be supplemented or replaced by equivalent parameters or technical measures.
" Interpretation: "best available techniques"
(1) For the purpose of these Regulations, "best available techniques"
means the most effective and advanced stage in the development of
activities and their methods of operation which indicates the
practical suitability of particular techniques for providing in
principle the basis for emission limit values designed to prevent and,
where that is not practicable, generally to reduce emissions and the
impact on the environment as a whole; and for the purpose of this
definition
(a) "available techniques" means those techniques which have been developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the cost and advantages, whether or not the techniques are used or produced inside the United Kingdom, as long as they are reasonably accessible to the operator;
(b) "best" means, in relation to techniques, the most effective in achieving a high general level of protection of the environment as a whole;
(c) "techniques" includes both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned.
(2) Schedule 2 shall have effect in relation to the determination of best available techniques."
Schedule 2 (1) reads
" SCHEDULE 2
BEST AVAILABLE TECHNIQUES
Regulation 3
1 Subject to paragraph 2, in determining best available techniques special consideration shall be given to the following matters, bearing in mind the likely costs and benefits of a measure and the principles of precaution and prevention
(1) the use of low-waste technology;
(2) the use of less hazardous substances;
(3) the furthering of recovery and recycling of substances generated and used in the process and of waste, where appropriate;
(4) comparable processes, facilities or methods of operation which have been tried with success on an industrial scale;
(5) technological advances and changes in scientific knowledge and understanding;
(6) the nature, effects and volume of the emissions concerned;
(7) the commissioning dates for new or existing installations or mobile plant;
(8) the length of time needed to introduce the best available technique;
(9) the consumption and nature of raw materials (including water) used in the process and the energy efficiency of the process;
(10) the need to prevent or reduce to a minimum the overall impact of the emissions on the environment and the risks to it;
(11) the need to prevent accidents and to minimise the consequences for the environment;
(12) the information published by the Commission pursuant to Article 16(2) of [the IPPC Directive] or by international organisations.
2 .."
The Pollution Prevention and Control Code (2) Published guidance
(a) Pursuant to Article 16(2) of 96/61/EC and Schedule 2 paragraph 1(12) of the PPC Regs: a document referred to in the case as BREF, published in July 2000. BREF is important in dealing with technical information. I shall draw attention to aspects of it in due course.
(b) Pursuant to regulation 37(2) of the PPC Regs; two documents, entitled
(a) "Secretary of State's Guidance; General Guidance Manual on Policy and Procedures for A2 and B Installations" (March 2003) which I shall call " The Manual"
(b) "Sector Guidance Note IPPC SG2 : Secretary of State's Guidance for Glass manufacturing Activities with Melting Capacity More than 20 Tonnes per day" (June 2003) , which is defined in its paragraph 1.2 as statutory guidance
" on the integrated pollution control standards appropriate for the generality of new and existing A2 installations in the glass manufacturing sector"
I shall refer to it as "SG 2."
"How to use this guidance
1.12 This guidance is a guide to issues and procedures relating to the making of
applications, writing and granting permits, and regulating approved installations under the PPC Regulations (as amended). The guidance should be used in conjunction with the series of notes on Best Available Techniques (BAT) and Best Available Techniques Not Entailing Excessive Cost (BATNEEC). It is aimed at providing a strong framework for consistent and transparent regulation of activities and installations. This guidance should be read in conjunction with the Pollution Prevention and Control (England and Wales) Regulations 2000, as amended from time to time. Additional guidance will be issued as the need arises.
Who should use this guidance document?
1.13 This guidance is intended to fulfil a number of functions. It constitutes statutory guidance issued by Government to local authority regulators under regulation 37 of the PPC Regulations. As such, local authorities must have regard to it in carrying out their regulatory functions. It is intended to explain the main functions, procedures and terminology contained in the legislation and to serve as a manual which helps local authorities to be effective, efficient and consistent in discharging their new responsibilities. Environment Agency regulators need not have regard to the manual other than to the extent that it clarifies its relationship with local authorities under the Regulations.
1.14 It is intended to provide firms operating, or planning to operate, A2 or Part B
installations and mobile plant with a guide to the steps they will need to take in order to obtain and comply with the necessary permit.
1.15 It is also designed to be of value to members of the public who have an interest in industrial pollution control whether generally or in relation to a specific proposal or installation. The aim is to provide both a generalised introduction to the systems as well as a detailed summary for anyone who wants to know where to go for further information.
1.16 .
1.17
1.18 The manual does not purport to address every question on all procedures under the LA-IPPC and LAPPC regimes. Where, in the light of experience, feedback or other developments, guidance is considered necessary on further matters, Defra will use the system of additional guidance ("AQ") notes, which are employed now under the LAPC system, to provide ad hoc supplementary advice ...
1.19 The manual, together with the sector guidance notes advising on BAT for each sector, should provide the necessary basis for decisions in most cases. Where, however, an installation raises, for example, particularly complex or contentious issues , local authorities may need to take account of the more extensive guidance produced by the Environment Agency and listed in Annex I. Such guidance will be updated from time to time ..
Section 12 addresses BAT. I have attached it as Annex 2 to this judgement. I shall note passages of relevance as I deal with the various issues.
" .one of a series of such guidance notes aimed at providing a strong framework for consistent and transparent regulation of LA-IPPC installations".
It gives particular advice on BAT at paragraphs 1.6 1.7
Best Available Techniques (BAT)
1.6 BAT is the main basis for determining standards in LA-IPPC. This sector
guidance note addresses what is considered by the Secretary of State/WAG to
constitute BAT for glass manufacturing activities with melting capacity more than 20
tonnes/day. This sector guidance note takes into account information contained in the
BREF (Ref 3)
As made clear in chapter 12 of the General Guidance Manual, BAT for each
installation should be assessed by reference to the appropriate sector guidance note,
and these notes should be regarded by local authorities as their primary reference
document for determining BAT drawing up permits. In general terms what is BAT
for one installation is likely to be BAT for a comparable installation.
However,determination of what is BAT is ultimately a matter for case by-case
decision taking into account that individual circumstances may affect BAT
judgements and what are the appropriate permit conditions. Thus, for each glass
manufacturing installation, local authorities (subject to appeal to the Secretary of
State / WAG) should regard this guidance note as a baseline, but ensure they take
into account any relevant case-specific factors such as the individual process
configuration and other characteristics, its size, location, and any other relevant
features of the particular installation. Further guidance on this, including the issue of
taking account of operators' individual financial position, is contained in chapter 12
of the General Guidance Manual.
1.7 If there are any applicable mandatory EU emission limits, these must be met,
although BAT may go further."
It sets different standards for new as opposed to existing installations (dealt with below) and sets a standard for NOx emissions from new plants (such as this one) of 500 mg/Nm3 (see Table 3). It describes that as
" achievable ..using the best combination of techniques" (paragraph 2.2)
"3.1 This section summarises, in the outlined BAT boxes, what BAT should be in
most circumstances. The boxes should not be taken as the only source of permit
conditions; compliance with emission limits and other provisions contained in this
guidance note together with any relevant case-specific considerations will also need
to be taken into account."
3.2 The standards cover the techniques and measures which, in combination with
those in the relevant previous (LAPC/IPC/Waste) guidance, have been identified as
representing BAT in a general sense. They also cover the other requirements of the
Pollution Prevention and Control (England and Wales) Regulations 2000 and
requirements of other regulations, such as the Waste Management Licensing
Regulations and the Groundwater Regulations insofar as they are relevant to an IPPC
Permit. For the sake of brevity these boxes simply use the term "BAT".
3.3 Where techniques or operating conditions are referred to in the BAT boxes
below, provided that it is demonstrated to the satisfaction of the regulator that an
equivalent or better level of control of environmental impacts will be achieved, then
other techniques or operating conditions may be used."
SG 2 Table 5 describes " Furnace Types" of which 8 are listed including " Cross fired regenerative " (i.e. as Quinn proposed) and 7 others including " Oxy-fuel fired". The introduction in 3.11 reads
"3.11 There are many furnace designs in use and they are usually distinguished from each other in terms of the method of heating, the combustion air preheating system employed and burner positioning. The main types of furnace are described in Table 5 below. Typically the residence time of material within the furnace is 24 hours for container furnaces and 72 hours for float glass furnaces."
A section then follows entitled " Emissions Control." Having identified NOx as an emission which is to be controlled, it then continues :
Control of point source emissions from furnaces
3.13 The environmental performance of the furnace is a result of a combination of the choice of melting technique, fuel used, the internal design of the furnace, the method of operation, and the provision of secondary abatement measures.
3.14 From an environmental perspective, techniques that are inherently less polluting or that can be controlled by primary means (e.g. method of operation) are generally preferred to those that rely on secondary abatement to control emissions. The economic and technical limit of primary measures which prevent or minimise pollution at source should be fully considered and a balance between these and secondary abatement made, to achieve the most viable means to attain the emission limit values.
Selection of furnace configuration
3.15 The choice of furnace configuration and melting technique should be that which is suitable for the combination of production capacity, glass formulation, fuel prices and existing infrastructure, and will deliver the best environmental performance."
It then notes that in practice a combination of fuels is used (3.19) and notes that
" oxy-fuel melting has a number of advantages including furnace energy savings, reduction of waste gas volume, and significantly reduced NOx emissions
3.20 Achieving the best furnace efficiency means less fuel is used per tonne of glass produced which therefore yields less CO2, NOx and SOx. Less air is required to burn less fuel, so there is less turbulence on the surface of the molten glass. Thus the mass emission of particles is also reduced."
It then addresses the control of NOx. I set out paragraphs 3.21 -22 and the subsequent " BAT box"
Controlling emissions of oxides of nitrogen (NOx)
3.21 NOx in furnace emissions can arise as a result of breakdown of nitrates in the feed material or oxidation of nitrogen contained in fuel (which is typically very small). The vast majority however is thermal NOx, generated by the oxidation of nitrogen in the high temperature combustion atmosphere present in the glass furnaces (typically 1650 - 2000oC).
3.22 Reduction of NOx can be achieved to a large extent at source by special furnace designs or by primary means of combustion control applied on conventional furnaces. In general however a combination of these with secondary techniques is required to achieve the emission limit.
[Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]
New or existing installations; some differences in regulation and standards
(a) A wholly new installation
(b) An existing installation to which "a substantial change" will be made (for the definition see PPC Regs regulation 2(1))
(c) An existing installation to which no change is made.
The PPC Regulations contain transitional provisions (see Schedule 3). They set a timetable for bringing existing installations (i.e. type (c )) under IPPC control. However one may have the case (type (b)) where an existing installation is the subject of a substantial change. While such changes are still subject to IPPC control, the Secretary of State has recognized that the technical and economic implications of altering a part of an installation are different to building one from scratch .
"Review and Upgrading Periods
Existing installations or activities
Upgrading
1.14 The previous guidance PG 3/3 (95) Secretary of State's Guidance Note for
Glass (excluding lead glass) Manufacturing Processes, relating to emissions to air,
advised that upgrading to that standard should usually have been completed by 1st
October 2001. Requirements still outstanding from any existing upgrading
programme should be completed.
1.15 The new provisions of this note and the dates by which compliance with these
provisions is expected, are listed in Table 1 below, together with the paragraph
number where the relevant guidance is to be found. Compliance with the new
provisions should normally be achieved by the dates shown. Permits should be
drafted having regard to this compliance timetable.
(a) Where this guidance note specifies standards or requirements which are additional
to, higher than or different to those in PG note PG 3/3 (95), Secretary of State's
Guidance Note for Glass (excluding lead glass) Manufacturing Processes, only in
exceptional circumstances should upgrading of existing installations and activities
having regard to these additional/ higher/different standards or requirements be
completed later than the compliance date specified in Table 1 below. (This excludes
different standards or requirements which fall within the following paragraph.)
(b) Where standards or requirements in PG 3/3 (95), Secretary of State's Guidance
Note for Glass (excluding lead glass) Manufacturing Processes have been deleted in
this guidance note or where this guidance note specifies less stringent standards or
requirements than those in PG 3/3 (95) Secretary of State's Guidance Note for Glass
(excluding lead glass) Manufacturing Processes, the new LA-IPPC permit should
reflect this straightaway.
1.16 A programme for upgrading within the specified timescales, to those new /
additional provisions in this guidance which involve significant improvement work,
should be submitted to the relevant local authority regulator within 6 months of the
date of issue of the permit.
There then follows Table 1, which relates to changes to existing installations. The parts relevant to NOx emissions for container glass are:
"Table 1: Compliance requirements
Upgrading Requirement Compliance Date
NOx Abatement Primary Techniques :As soon as reasonably practicable, which in most cases would normally be within 24 months of publication of the note.
NOx Abatement Secondary Techniques (Container glass) 1 April 2009"
It then continues
"1.17 Where abatement technology is in place to meet an emission limit value, it should be commissioned as soon as practicable. Having been commissioned, it should be maintained and operated so as to comply with the emission limit value during all normal operating conditions.
1.18 Where an energy saving method of abatement is under trial which, once fully commissioned, will control particulate emissions to meet the emission limit value, then the following requirements replace the compliance date above:
as part of their permit application, the operator should demonstrate their intention to adopt an energy saving method of abatement, subject to successful research and development
the benchmarks and timetable for progressing this option should also be presented at the time of the permit application
in the light of these proposals, the regulator should allow upgrading to be completed after the April 2005 / 2006 deadline, provided that the operator informs the regulator at least once every year on progress in writing
in the event that the method under trial is rejected, then the operator should comply with the particulate emission limit value within 24 months, and contingency plans for this event
should be made in writing to the regulator at the time of the permit application
in any event, the emission limit value should be complied with no later than 2009
1.19 Replacement plant should normally be designed to meet the appropriate standards specified for new installations or activities.
New installations or activities
1.20 For new installations or activities - from the first day of operation the permit should have regard to the full standards of this guidance.
Substantially changed installations or activities
1.21 For substantially changed installations or activities - as from the first day of operation, the permit should normally have regard to the full standards of this guidance with respect to the parts of the installation that have been substantially changed and any part of the installation affected by the change.
"2.1 This section contains emission limits, mass release rates and other requirements that are judged for the generality of the activities within the sector to represent BAT.
Contained emissions to air associated with the use of BAT
2.2 Guidance is given below on emission limits and other requirements which are achievable for key substances using the best combination of techniques.
Table 3: Contained emissions to air associated with the use of BAT
Source / Determinand Limit (mg/m3)
Furnace 0perations NOx Annual average 500"
Must the regulator take the furnace size, configuration and the choice of process as a given when considering the application ?
"the degree to which the technique, production capacity and process configuration proposed by an applicant is determinative of the process, criteria and considerations by which the application is to be judged by the regulator."
I shall now deal with conclusions in that regard.
Type X: Smith : 750mg/NM3
Type Y: Brown: 500 mg/NM3
Type X: Jones: 500 mg/NM3
Type Y; White: 500 mg/NM3
Brown's, Jones' and White's installations are subject to NOx limits of 500 mg/NM3 in their respective permits.
Therefore Smith's Type A scheme will produce emissions at a rate higher than the rate achievable by another method, and/or by another configuration. The question which lies at the heart of this case is whether the regulator is entitled to refuse the permit for Smith's proposal for a Type X installation on the basis that use of a different size furnace, configuration or process from that proposed would generate lower emissions of a designated pollutant .
"achieving a high level of protection of the environment taken as a whole by preventing or, where that is not practicable, reducing emissions into the air, water and land."
That reflects Article 1 of the Directive, which underlies
"measures designed to prevent or, where that is not practicable, to reduce emissions in the air, water and land from the abovementioned activities, including measures concerning waste, in order to achieve a high level of protection of the environment taken as a whole. "
"Article 3
General principles governing the basic obligations of the operator
Member States shall take the necessary measures to provide that the competent authorities ensure that installations are operated in such a way that:
(a) all the appropriate preventive(sic) measures are taken against pollution, in particular through application of the best available techniques;
(b) no significant pollution is caused"
I also consider that recitals 1, 6 and 8 of the Directive show that any decision must seek to prevent or minimise emissions to air. That being so, that question is as pertinent to the question of whether to grant or refuse as it is to the questions of which conditions should be applied.
(2) The general principles referred to in paragraph (1) are that installations and mobile plant should be operated in such a way that
(a) all the appropriate preventative measures are taken against pollution, in particular through application of the best available techniques; and
(b) no significant pollution is caused.
By Regulation 3(1)(c )
" "techniques" includes both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned"
"12.8 Availability: Where there is a choice, the technique that is best overall will
be BAT unless it is not an 'available technique'. There are two key aspects to the
availability test:
a) what is the balance of costs and advantages? This means that a
technique may be rejected as BAT if its costs would far outweigh its
environmental benefits; and
b) can the operator obtain the technique? This does not mean that the
technique has to be in general use. It would only need to have been
developed or proven as a pilot, provided that the industry could then
confidently introduce it. Nor does there need to be a competitive market
for it. It does not matter whether the technique is from outside the UK or
even the EU."
"Basic principles for determining BAT
12.10 As stated above, determination of what is BAT must ultimately be made on a case-by-case basis and taking into account that individual circumstances may affect BAT judgements and what are the appropriate permit conditions. The following paragraphs describe the steps that would be necessary if starting such an exercise from scratch.
However, where sector guidance notes are available, they will have taken account of options and it may be quite adequate to rely on those notes as a baseline for what is BAT (as well as, where appropriate, what is necessary to achieve the relevant EU Waste Framework Directive objectives), in a given situation. Any additional assessments and option identification should be undertaken as seems necessary having regard to the specific facts of the particular case, including the precise size and configuration of the installation and activities, the actual production process used, and the location of the installation. It is envisaged that such assessments are likely to be more extensive for LAIPPC installations, which will generally be more complex and are being regulated in relation to a wider range of environmental impacts. For LAPPC installations, it is envisaged that assessments will be similar in extent to those undertaken currently for LAPC and broadly-speaking what is BAT/BATNEEC for one activity in a sector is likely to be BAT/BATNEEC for a comparable activity. In all cases, local authorities, in determining applications, should take account of the relevant factors set out in Schedule 2 to the regulations .. They may in subsequent proceedings be required to demonstrate that they have done so and produce any written notes or report setting down the considerations relied on prior to taking their decision. Also, for the sake of transparency and accountability, they should be in a position to justify their decisions to the operator (see also paragraph 13.17).
12.11 The basic principles for determining BAT involve identifying options, assessing environmental effects and considering economics. The principles of precaution and prevention are also relevant factors for determinations. Determining BAT involves comparing the techniques that prevent or reduce emissions and identifying the best one in terms of the one which will have the lowest impact on the environment.
Alternatives should be compared both in terms of the primary techniques used to run the installation and the abatement techniques used to reduce emissions further.
Environmental assessment.
12.12 Once the options have been identified there should be an assessment of their environmental effects. It should focus particularly on the significant environmental effects both direct and indirect. It should also look at the major advantages and disadvantages of techniques used to deal with them. Account should be taken, in particular, of the various factors listed in Schedule 2 to the PPC Regulations, ..some of which are detailed in paragraph 12.15 below. This should help to rank techniques according to their overall environmental effects."
The same approach is apparent in Policy Guidance Note SG2 in the section on Emissions Control. Paragraphs 3.13, 3.14, 3.15 (and note the heading "Selection of Furnace Configuration") 3.19, 3.20. 3.21, 3.22 and the BAT box all show that a BAT analysis will consider all aspects of configuration and choice of technique. It will "take account of," or "have regard to", the individual characteristics of the proposed installation, but in my judgement it is not bound by them. The decision maker must also have regard to other configurations or designs which would result in lower levels of emissions.
"10. The planning and pollution control systems are separate but complementary. Pollution control is concerned with preventing pollution through the use of measures to prohibit or limit the release of substances to the environment from different sources to the lowest practicable level. It also ensures that ambient air and water quality meet standards that guard against impacts to the environment and human health. The planning system controls the development and use of land in the public interest. It plays an important role in determining the location of development which may give rise to pollution, either directly or from traffic generated, and in ensuring that other developments are, as far as possible, not affected by major existing, or potential sources of pollution. The planning system should focus on whether the development itself is an acceptable use of the land, and the impacts of those uses, rather than the control of processes or emissions themselves. Planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced. They should act to complement but not seek to duplicate it.
15. Development control decisions can have a significant effect on the environment, in some cases not only locally but also over considerable distances. LPAs must be satisfied that planning permission can be granted on land use grounds taking full account of environmental impacts. This will require close co-operation with the ..the pollution control authority, .., to ensure that in the case of potentially polluting developments;
" ..Mr David Mole QC, for Gateshead, has referred us to two paragraphs in particular. These are:
125. It is not the job of the planning system to duplicate controls which are the statutory responsibility of other bodies(including local authorities in their non-planning functions). Planning controls are not an appropriate means of regulating the detailed characteristics of industrial processes. Nor should planning authorities substitute their won judgement on pollution control issues for that of the bodies with the relevant expertise and the responsibility for statutory control over these matters.
126 The dividing line between planning and pollution control is therefore not always clear-cut
Neither ..are statements of law. Nevertheless, it seems to me they are sound statements of common sense. Mr Mole submits, and I agree, that the extent to which discharges from a proposed plant will necessarily or probably pollute the atmosphere is a material consideration to be taken into account when deciding to grant planning permission. The deputy judge accepted that submission also. But the deputy judge said at p 17 of his judgement, and in this respect I also agree with him
" Just as the environmental impact of such emissions is a material consideration, so also is the existence of a stringent regime under the EPA" (Environmental Protection Act 1990) "for preventing or mitigating that impact (or) rendering any emissions harmless. It is too simplistic to say " the Secretary of State cannot leave the question of pollution to the EPA.""
(a) The Directive and the Regulations are explicit that the objective is prevention of an emission of NOx, or reduction as far as possible: see Directive Articles 1, 3 and 6(1) ("- the proposed technology and other techniques for preventing or, where this not possible, reducing emissions from the installation"), and Regulations 8, 11(2) and 3(1), all of which look to achieving the lowest possible levels of emissions without reference to EQS, and one should not look to a different test. In other words, what is "significant" is the reduction of emissions to the minimum.
(b) Regulation 12(7) does not undercut that conclusion. It requires the application of techniques beyond BAT if a BAT derived ELV would cause the EQS to be exceeded, and allows refusal if the EQS would still be breached despite their application. There may be many reasons from the list set out in Regulation 3 and Schedule 2 (or Annex IV of the Directive) why a lower ELV has not been chosen. For example, the technology needed to achieve lower ELVs may involve greater costs (see Schedule 2 preamble) or be based on relatively untried technology. Even then, a permit may be refused if the EQS is breached. Regulation 12(7) thus provides a backstop which permits refusal in connection with EQS standards even though BAT justified a higher ELV. I do not consider that that is inconsistent with the approach I have adopted to Regulation 10(2).
(c) The " high standard of protection of the environment as a whole" in Article 3 is not intended to be related to a particular figure. The phrase "high level" is a way of describing the objective in the first recital, which is to prevent or reduce to the irreducible minimum the emission of pollutants at source:
"Whereas the objectives and principles of the Community's environment policy, as set out in Article 130r of the Treaty, consist in particular of preventing, reducing and as far as possible eliminating pollution by giving priority to intervention at source and ensuring prudent management of natural resources, in compliance with the 'polluter pays` principle and the principle of pollution prevention" (my italics) .
I refer also to Recital 8 and Article 1.
(d) The dangers of Mr Taylor's arguments can be seen from this case. A proposed ELV for NOx of 500mg/NM3 in SG2 was not applied here from the outset, but instead there was applied an ELV of 1100 mg/NM3, reducing to 500 mg/NM3 after 4 years. Mr Taylor seeks to draw comfort from the fact that the local EQS was not breached. By interpreting the Directive and Regulations narrowly so as to avoid comparison with other techniques, designs, configurations or sizes, by his arguments a more polluting choice of design/configuration is thus approved by pointing out that there is headroom below the EQS in terms of local air quality. In my judgement that is not what the code intended, and indeed is something it seeks to prevent.
(e) I would also regard Mr Taylor's submissions, even if I judged them otherwise acceptable, as undermining a very important piece of the interlocking matrix of environmental policies. It will be recalled from an earlier passage in this judgement that NOx has both direct and indirect effects, and that the latter (the generation of ozone) are felt over great distances and are not adequately reflected by local measurements of air quality. It follows that downwards pressure on the generation of NOx is important in its own right, irrespective of local EQS readings. That coincides with what in my judgement is the true interpretation of the both the EU and domestic legislation.
The reasoning of Chester City Council
(a) The application for a permit and a copy of its advertisement in the London Gazette and in local newspapers.
(b) A check list of steps to be taken, drawn up by an officer of Chester City Council.
(c) Documents relating to objections of English Nature, later withdrawn relating to various local air quality issues as the would affect the Mersey Estuary SSSI, including NOx. They included a response from Quinn and a letter of 7th February 2005.
(d) Correspondence with the local sewerage authority about effluent and with the local Primary Care Trust , neither of which related to NOx.
(e) Extracts from the October 2000 version of BREF.
(f) A paper supplied to Chester City Council by Quinn, which purported to be a paper produced by " Glass Technology Services" in January 2005. It addressed " Increases in CO2 emissions associated with NOx Abatement from Glass manufacturing Sites". The document supplied by Quinn to Chester CC was not what it said it was. "Glass Technology Services" is the name of a company owned by British Glass, which provides consulting and related technical services to the various companies in this industrial sector. I find, based on the unchallenged evidence of Mr Paul Stone, partner in DLA, and on the evidence of Mr Barry O'Reilly, Health and Safety Environment Manager of Quinn, that it is based on an internal paper which was never published because there were technical objections within British Glass to its contents. It was therefore extraordinary that it was supplied to Chester City Council as though it had been endorsed and published by Glass Technology Services. But the document is problematic for other reasons. Although purporting to be dated January 2005, its conclusions are written so as to refer to the draft SG 2 guidance, which were and are written so as to seek a limit of 800 mg/Nm3 for NOx instead of 500 mg/Nm3 in the eventually approved final version, which was issued as long ago as June 2003. While Mr Hosker had no reason to know that the document was not one endorsed and published by Glass Technology Services, the problems with its date must have been apparent to him.
(g) An extract from the Environmental Statement filed by Quinn, entitled " The Need for the Facility and Alternatives considered" and dated 19th July 2004.
(h) Some papers setting out histograms showing NOx emissions from UK cross-fired furnaces , and end fired furnaces.
(i) Secretary of State's Guidance Note SG2.
(j) Quinn's modelling of the expected ground level concentrations caused by expected NOx emissions from the proposed plant, of 23rd December 2004.
(k) An extract from Planning Policy Statement PS 23 " Planning and Pollution Control."
(l) Some sheets setting out other container glass plants, identifying whether a permit had been issued, and if so what NOx emissions were specified, and notes on abatement processes in use at some other installations.
(a) There were no oxyfuel furnaces on the world of the size proposed by Quinn in this installation;
(b) The use of oxygen would require storage of oxygen on site , which would make the site subject to COMAH regulations, and there were already two COMAH sites in the area. He did not however assess the degree of hazard;
(c) The electricity required to generate the oxygen would generate an unquantified extra amount of CO2, a greenhouse gas. He did not address the fact that NOx (indirectly) has an effect on greenhouse gases.
He states that it was reasons (a) and (b) which were the significant ones see paragraph 40.
At paragraph 41 ff Mr Hosker sets out the discussions he had with Quinn about secondary measures (i.e. abatement between the furnace and the release to atmosphere) to reduce emissions to 500 mg/ Nm3. He rejected all secondary means of doing so, and , according to his paragraph 45
" Taking all the above into account, my focus was on trying all primary techniques first and adjusting these to get emission levels down as far as possible. Having done this in consultation with Quinn, I concluded that a concentration of 1000 mg/Nm3 , reducing to 500 mg/Nm3 (SG 2 levels) by 2009 was the best that could realistically be achieved."
I shall consider below whether that stated reason withstands scrutiny.
.
"weighing up all of the considerations I have outlined above, I felt that the level of emissions (which would, importantly, reduce over time) the likely impact on the environment and environmental monitoring which was to be put in place justified temporary departure from SG 2. I considered the use of different technologies and there were site specific issues relating to the use of oxyfuel technology which concerned me. Greatly. (sic) My key concern was the huge volume of oxygen which would have to be stored on site for furnaces of the size proposed by Quinn. I concluded that cross fired furnaces, and not oxyfuel fired furnaces, would be BAT for this site."
"13 .. there were a number of issues. In particular , a brand new system starting up would not meet those standards immediately. This would be exacerbated by the fact that it would need to build up the volume of raw material it was heating. It could be several years before the plant was operating at 100% capacity. It was possible also that the equipment designed to reduce emissions might need fine tuning in its early days. For these reasons we could not require 100% compliance from day one ."
Mr Durham also says that he knew that oxyfuel had been considered. He repeats the same points which Mr Hosker had set out
(a) No oxyfuel furnaces of this size
(b) Need to store oxygen and designation as COMAH site
(c) Additional CO2 emissions.
He refers to the first two issues as " site specific." He records that Mr Hosker showed him that higher standards would be achieved than at other glass manufacturing plants.
He then states at paragraph 21 that Mr Hosker had set levels in the permit which would be met
" over a reasonable period of time, and this had been agreed by Quinn after negotiation. He had established that there were valid site specific reasons which I believed justified why these levels could not be met immediately .David had regard to BAT in coming to his conclusion and in negotiating and assessing the timetable for full compliance. The permit I was deciding on reflected all of this."
He considered that he had no discretion in the decision. However at paragraph 25 in his conclusion he stated
" .The only departure from SG 2 was in relation to nitrogen dioxide emissions and it did achieve compliance with this after a period of time that seemed reasonable in the circumstances."
In his second witness statement at paragraph 25 he states that Mr Hosker had
" looked at alternatives .David had negotiated standards that reflected BAT and were higher than had been achieved anywhere .."
(a) Achievable limits for NOx: 1000 mg/Nm3 reducing to 500 mg/Nm3 after 4 years (i.e. by March 2009). Lower limits were not possible because of lower use of capacity in early years.
(b) Oxyfuel alternative dismissed because of
(a) "site specific" reason that no oxyfuel furnace of similar size existed elsewhere
(b) "site specific" reason that site would be a COMAH designated site
(c) increased emissions of greenhouse gases
(c) levels lower than at other glass manufacturing installations
(d) support from BREF
(e) no exceedance of air quality standards
(f) levels set represent standards
(g) temporary departure from SG 2.
Chester CC's conduct on and after the 2nd March 2005
" to deal with matters where a decision nominally to be made by the Council is governed substantially by matters of fact or technical factors so that there is no real discretion."
" 12.10 .. In all cases, local authorities, in determining applications, should take account of the relevant factors set out in Schedule 2 to the regulations (see Annex VIII). They may in subsequent proceedings be required to demonstrate that they have done so and produce any written notes or report setting down the considerations relied on prior to taking their decision. Also, for the sake of transparency and accountability, they should be in a position to justify their decisions to the operator (see also paragraph 13.17)."
1000 mg/Nm3 by end of Year 1
900 mg/Nm3 by end of Year 2
750 mg/Nm3 by end of Year 3
500 mg/Nm3 by end of Year 4
" In determining the application the Council has had regard to the relevant general and specific sector guidance and those items contained within the indexed ring binder appended hereto.
I am satisfied that this decision is governed substantially by matters of fact and technical factors and so there is no real discretion to be exercised that requires this matter to be referred to the Cabinet for discussion"
(a) dealt with the EA letter (in my judgement, nothing turns on that)
(b) in the case of the Technoglas letter said that it was not a document relied on in the decision to issue the certificate. (I interpose to observe that it is strange then that either Chester CC or Eversheds could ever have thought it appropriate to include it)
(c) in the case of the other material, accepted that it post-dated the decision, but asserted that " they were considered or at least the content was known about, when the decision to issue the certificate was made"
"3 In this statement I refer to a number of documents which can be found in the Council's file of papers collated to justify its decision to issue the IPPC Permit. I shall refer to this file as the Justification File .."
20 I spoke to most of the regulators responsible for container glass manufacturing installations .
22 Where possible I reviewed copies of relevant IPPC permits. I was able to review 4 permits which have been issued in the last 4 months (he then lists various permits all in fact for existing installations)
23 At tab 10 of the Justification File, there is a summary of the information my research established
24 DEFRA has highlighted United Glass' Harlow site as achieving best practice ..
48 (Mr Hosker records having received information from Ellesmere Port and Neston BC after the issue of the permit) and states " This letter post-dates issue of the permit and for this reason is not contained in the Justification File"
(a) Emissions data for Rockware Worksop, obtained on 3rd March 2005
(b) Emissions data for plants in Barnsley, obtained on 9th March 2005
(c) Extracts from DEFRA website, obtained 9th March 2005. It was a guidance note from DEFRA (AQ20(04)) on the timescale for making decisions.
Each of those documents bears on its face a date later than the 2nd March 2005, and were obtained by Mr Hosker. Two of them were obtained and inserted into the file when Mr Hosker already knew that a request had been made for copies of the documents in the file, and after Mr Shutler had inspected it on 4th March 2005.
" 2 I refer to a number of documents which can be found in the Council's file of papers collated to justify its decision to issue the IPPC permit . I shall refer to this file as the Justification File"
The existing/new installations point, and the conflicting accounts of whether there was a departure
"The Defendant does not accept that it departed from SG2 guidance. Paragraph 1.15
of the Guidance provides that "Compliance with the new provisions should
normally be achieved by the dates shown. Permits should be drafted having regard to
this compliance timetable." The date shown for compliance on Table 1 of the
guidance for container glass, of the type manufactured at the plant was 1st April
2009. The annual average was fixed at 500 mg/Nm3. This was precisely the
condition imposed in the licence"
If that statement is true, it shows that Chester CC had made at least two fundamental errors about the meaning of SG 2
(a) Paragraph 1.15 of SG 2 has nothing to do with this application, which was for a new installation. It related to the date by which existing unchanged installations would be subject to control;
(b) Table 1 is also irrelevant for the same reason.
"In summary it is considered that the scale of the emissions, their likely significance on the environment, and the proposed controls that will be in place, with continued improvement through the life of the installation, justify a temporary departure from the emissions limits indicated in Guidance Note SG2" (my italics).
"temporary departures from SG 2"
Mr Durham in his first statement says (at paragraph 58) that the level of emissions, which would reduce in time and the provision of environmental monitoring
" justified temporary departure from SG2"
It is thus surprising to read in the Acknowledgement of Service, as set out above, that
"The Defendant does not accept that it departed from SG2 guidance"
and even more so to read in Mr Hosker's second witness statement at paragraph 25 that
" the function of the regulator is to ensure that the standards set (such as emission levels) are achieved. In the case of the Quinn installation the IPPC permit issued ensures that all the standards set in SG2 are achieved by the due dates and the permit had regard to the full standards of the guidance."
" ..the IPPC permit issued ensures that all the standards set in SG2 are achieved by the due dates and the permit had regard to the full standards of the guidance (my italics)
shows in my judgement that, contrary to what was urged on me by Mr Horlock QC, the Acknowledgement of Service was correct as to Mr Hosker's reasoning. The idea of " due dates" could only come from the misuse of Table 1, which was the part of the document the Acknowledgement of Service says was followed. Eversheds could only have known that that is what he did from Chester City Council officers. I find on the balance of probabilities that that is what he did do. I therefore reject those parts of his evidence which contend that he set the limits by reference to what was achievable in fact.
Whether the limits set were actually the lowest achievable
(a) Quinn's own case as put to Chester CC was that lower levels of NOx emission were achievable . In the justification file at tab 5 appears an extract from the Environmental Statement (page 86 in the Courts Bundle 3) for the planning application which was before the Council. It records that
" Quinn Glass recognises that further secondary techniques may be selected to meet future emissions limits, such as enriched oxygen firing or selective non-catalytic reduction, but that the installation of such technology at the outset is not necessary"
The permit itself shows that technology existed which could reduce emissions further. At page 3 (page 7 of the Courts Bundle 3) it reads
"Additionally , the furnace will be equipped from day one to incorporate a retrofit of proven NOx reduction technology if required in the future."
(b) Mr Hosker himself records at paragraph 31 of his first witness statement that the plant had been designed to achieve 1000 mg/Nm3, and had "headroom built in" by the supplier.
(c) The paper of dubious provenance supplied by Quinn (i.e. the " Glass Technology Services January 2005" document) also shows that limits below those permitted were achievable. It states in its conclusions that while (my underlining but italics as per the document)
.currently the majority of the UK glass-making furnaces is emitting NOx in the range 1000-2000 mg/Nm3. A range of technologies are (sic) available to reduce these emissions. The most effective technologies could reduce emissions to below 500 mg/Nm3 but these technologies incur energy penalties and greatly increase CO2 emissions .."
It then argues against 500 mg/Nm3 as a limit, argues against oxyfuel technology as generating CO2 and continues
" A limit of 800 mg/Nm3 would still represent a 40% reduction in NOx emissions and this could be achieved by those primary means which achieve a very small CO2 penalty. 800mg/Nm3 is being achieved by the best operators in Germany and is also the basis for the limit being used for that country .The conclusions drawn from this brief paper is (sic) that a limit for all soda lime glass melters of 800 mg/Nm3 for the emission of NOx from glass manufacturing plants represents the best environmental option at this time."
(d) That is no doubt why its first page states that
" Germany has put a NOx limit of 800mg/m3 on its glass manufacturers. The leading container operators are confident that they can operate within this limit by the use of the latest primary technology." (My underlining)
(e) I refer below to Table 2 of that document when I turn to consider Mr Hosker's assumptions on the effect on greenhouse gases. It shows what happens with an installation which is not fitted secondary abatement (called " primary measures") and after such abatement. It shows that the type of process proposed by Quinn (albeit in a 300 tpd furnace) would produce substantial reductions in NOx even if unabated at the secondary stage ("primary measures") at 800 mg/Nm3 (37% less than at 1300/mg/Nm3) and even greater ones at 500 mg/Nm3 after abatement (57% less) with little difference in CO2 emissions up 2% and 5.4% respectively. (The 300 tpd furnace example was used in that paper and relied on by Quinn and Mr Hosker- as showing the proportionate differences in levels of NOx and CO2 between types of process).
(f) The extracts from the BREF document to which Mr Hosker refers in paragraph 27 of his witness statement also show, and do so beyond argument, that lower levels were achievable with the type of furnace proposed by Quinn. I deal below with the errors Mr Hosker made in connection with BREF.
(g) It follows that either Mr Hosker's evidence is incorrect when it records that he considered that the emissions limits were the lowest that could be achieved, or he had misunderstood what was before him, or failed to take it into account. His reliance on emission control in the primary phase alone is especially unfortunate given the fact that SG 2 specifically drew attention to the importance of secondary abatement techniques in paragraph 3.22 and the subsequent "BAT box." The Glass Technology paper itself showed major reductions once abatement techniques were employed.
(h) The argument that the furnace would produce more NOx because less of its capacity would be taken up by melting glass, and more by air, is hard to reconcile with the description of Furnace Operations in the permit, which show that the amount of air let into the furnace is controlled (my italics)
This furnace type and configuration will enable Quinn Glass to adopt a continuing programme of lowering NOx emissions via primary methods. As .. SG2 states "Achieving the best furnace efficiency means less fuel is used per tonne of glass, which therefore yields less .NOx .. less air is required to burn less fuel so there is less turbulence on the surface of the molten glass. Thus the mass emission of particles is also reduced." Key features of the furnace , providing the means by which such efficiency is achieved, are briefly described below ..
The furnace incorporates sealed low NOx underport low momentum burners. These burners eliminate any secondary air ingress around the gas injector. They also promote staged combustion leading to less NOx .
The furnace atmosphere is tightly controlled. The furnace pressure is measured and controlled to be always positive thus eliminating any air ingress. The furnace has ..regenerators .which allows for accurate measurement of airflow per port. The gas flow is controlled per port in ration with the air. These, combined with continuous oxygen monitoring .allow the very tight control of optimum firing conditions .
The reduction of NOx can be significantly affected by how the furnace is operated. It is important that flame temperatures are kept to a minimum .(methods are then described) ..."
1000 mg/Nm3 by end of Year 1
900 mg/Nm3 by end of Year 2
750 mg/Nm3 by end of Year 3
500 mg/Nm3 by end of Year 4
did not represent the lowest NOx limits that could be achieved, nor did they represent BAT. Indeed on the evidence before him, the installation could certainly achieve 800 mg /Nm3 from the outset, and if the Quinn supplied Glass Technology paper was accepted, probably 500 mg/Nm3 .
" were a reasonable compromise, particularly taking into account that the remaining emissions of pollutants were predicted to be within the standards set by SG 2" (paragraph 8)
" ..they are already very conscious of the concerns about lax NOx standards and the implications for them as well as generally, which is helpful.
I explained I couldn't comment on detail because of appellate position, which he accepted. Seems that there could be a prospect of staged reductions down to 500, which might possibly satisfy BAT and all the parties. Chester will be clearing any proposed decision with their lawyers "
I accept Mr Hosker's evidence that he took Mr Etkind's reaction as one of support for a compromise. In my judgement however Chester CC's fear of another legal challenge played its part. But whichever version is true, the fact is that Mr Hosker and Mr Durham saw the process as in part a negotiation. That lies outwith any of the processes required or permitted under the Directive or the Regulations.
The oxyfuel issue
(a) The COMAH hazard point
(b) The creation of CO2.
| Senario (sic) | Units | Unabated | Primary measures |
3R | Oxy-gas |
| Furnace emissions | |||||
| CO2 | Tonne/year | 30,700 | 31,300 | 32,830 | 26,100 |
| NOx concentration |
Mg/m3 | 1300 | 800 | 500 | 500 |
| NOx | Tonne/year | 300 | 188 | 123 | 98 |
| Generator emissions | |||||
| CO2 | Tonne/year | n/a | n/a | n/a | 9051 |
| NOx | Tonne/year | n/a | n/a | n/a | 17 |
| NOx reduction | Tonne/year | n/a | 112 | 177 | 219 |
| CO2 penalty | Tonne/year | n/a | 600 | 2130 | 4451 |
| Ratio | n/a | 5:1 | 12:1 | 20:1 |
A: Primary measures @800 mg/Nm3 vs oxy-gas @ 500 mg/Nm3
| Senario (sic) | Units | Unabated | Primary measures |
3R | Oxy-gas |
| NOx reduction | Tonne/year | - | 0 | ----- | 73 |
| CO2 penalty | Tonne/year | n/a | 0 | ------ | 3851 |
| Ratio | n/a | 0 | ------ | 53:1 |
B: Primary measures @800 mg/Nm3 vs 3R @ 500 mg/Nm3
| Senario (sic) | Units | Unabated | Primary measures |
3R | Oxy-gas |
| NOx reduction | Tonne/year | - | 0 | 65 | - |
| CO2 penalty | Tonne/year | n/a | 0 | 1530 | - |
| Ratio | n/a | 0 | 26:1 | - |
C: 3R @500 mg/Nm3 vs oxy-gas @ 500 mg/Nm3
| Senario (sic) | Units | Unabated | Primary measures |
3R | Oxy-gas |
| NOx reduction | Tonne/year | - | - | 0 | 35 |
| CO2 penalty | Tonne/year | n/a | - | 0 | 2321 |
| Ratio | n/a | - | 0 | 66:1 |
" ..nitrogen dioxide is not a global pollutant. It does not, for example, contribute towards global warming. Therefore , local air quality monitoring gives a good picture of any effects emissions from the installation may be having on the environment"
Use of BREF
(a) "I understand that UK standards are tighter than standards in other EU countries. The European Commission has produced its own guidance note, known as a BREF note, which provides recommended levels of 500 to 1100 mg/m3 . In opting for a level of 500 mg /m3 the UK has gone for the tightest possible standard. An extract of the BREF note is at tab 3 of the Justification File" (My italics)
" 650-1100 mg/Nm3 have been achieved in some applications"
However it then went on, in the case of regenerative furnaces like that proposed here to state that , in the case of chemical reduction by fuel (i.e. a secondary measure)
" The 3R process can achieve emission levels of less than 500 mg/Nm3 corresponding to an increase of fuel usage of 6-10% ..the Reburning process is hoped to achieve comparable emission levels following development "
It then describes reductions to below 500 mg/Nm3 as a result of Selective Catalytic Reduction (SCR) and almost as much via Selective Non- Catalytic Reduction (SNCR). I draw attention to the very similar advice given in SG 2. BREF then goes on to state that
" For .container glass it is considered that the emission levels for .(..NOx) associated with the techniques that will generally constitute BAT is 500- 700 mg/Nm3 .."
The relevance of EQS
(a) As Mr Gordon QC submitted, if Mr Hosker and Mr Durham did not consider that they were departing from standards, then the existence of reasons to do so is irrelevant;
(b) In any event, they must consider the effect on EQS in the right context. They must do so against a proper appreciation of the Directive, the Regulations, SG 2 and the material before them, not forgetting the fact that emissions of NOx can be harmful for reasons which cannot be monitored locally;
(c) Mr Hosker's understanding and application of the law, European guidance, national statutory guidance and the evidence before him was so inadequate, for the reasons already given, that the context in which he addressed EQS was itself flawed.
I conclude that Chester City Council
(a) wrongly failed to consider whether alternative configurations, size or design to that proposed would have produced lower emissions of specified pollutants, and in particular oxides of nitrogen (NOx), either in the context of a BAT analysis, or in determining whether the permit should be refused or granted;
(b) in particular, failed to consider whether the use of an oxyfuel process with a different number and size of furnaces would produce lower emission levels of oxides of nitrogen (NOx), and/or would constitute BAT;
(c) misinterpreted and misapplied statutory note SG 2 when considering the date at which the SG 2 recommended emission limit of 500 mg/Nm3 was to be applied to a new installation for the manufacture of container glass;
(d) Took into account an immaterial consideration, namely the emission limits set at other existing UK plants, when considering whether the levels permitted at the application site were BAT for the purposes of the European and UK statutory codes and statutory guidance;
(e) misinterpreted and misapplied the BREF document on achievable emission limits and achieved levels;
(f) acted in breach of the statutory European and UK codes for pollution control by imposing emission limits for oxides of nitrogen (NOx) which were higher than those which were achievable
(g) alternatively, failed to have regard to a material consideration, namely the evidence before it that lower emission limits were achievable for oxides of nitrogen (NOx) if alternative primary secondary techniques were used, and/or if secondary techniques were applied;
(h) when considering the relationship between emissions of CO2 and NOx failed to take into account a material consideration, namely whether oxides of nitrogen (NOx) are global pollutants or are to be treated as greenhouse gases;
(i) failed to give adequate or intelligible reasoning for its conclusions on the above topics
(j) failed to give adequate or intelligible reasoning for its conclusions that the storage of oxygen on site in an oxyfuel process was a matter that justified rejecting that process
(k) failed to give adequate or intelligible reasoning for its conclusions concerning the effects on air quality.
The scope of the Chief Executive's authority
"power to deal with matters where a decision is nominally to be made by the Council is governed substantially by matters of fact or technical factors so that there is no real discretion."
" The only departure from SG2 was in relation to nitrogen dioxide emissions and it did achieve compliance with this after a period of time that seemed reasonable in the circumstances." (my italics)
Relationship to call in
Whether Rockware have sufficient interest to seek or obtain judicial review
(a) Sufficiency of interest should be considered in the context of the facts of the particular case;
(b) The relationship to be considered is that between the claimant/applicant and the subject matter of the decision;
(c) It is not necessary in establishing a sufficiency of interest to show that he has been unfairly discriminated against;
(d) Provided that the threshold is passed of being more than a mere busybody, the question of sufficiency of interest goes to the exercise of discretion.
"..If a claimant has no sufficient private interest to support a claim to standing, then he should not be accorded standing merely because he raises an issue in which there is, objectively speaking, a public interest. As Sedley J said in R v Somerset County Council and ARC Southern Ltd, ex p Dixon [1997] Env LR 111, when considering the issue of standing, the court had to ensure that the claimant was not prompted by an ill-motive, and was not a mere busybody or a trouble-maker. Thus, if a claimant seeks to challenge a decision in which he has no private law interest, it is difficult to conceive of circumstances in which the court will accord him standing, even where there is a public interest in testing the lawfulness of the decision, if the claimant is acting out of ill-will or for some other improper purpose. It is an abuse of process to permit a claimant to bring a claim in such circumstances. If the real reason why a claimant wishes to challenge a decision in which, objectively, there is a public interest is not that he has a genuine concern about the decision, but some other reason, then that is material to the question whether he should be accorded standing."
In R(on the application of Noble Organisation Limited) v Thanet D C [2005] EWCA Civ 782 Auld LJ said
"I would dismiss the appeal. In doing so I add a note of dissatisfaction at the way the availability of the remedy of judicial review can be exploited some might say abused as a commercial weapon by rival potential developers to frustrate and delay their competitors' approved developments, rather than for any demonstrated concern about potential environmental or other planning harm. By the time of the hearing of this appeal, as is often the case, the approved scheme in issue is clearly of a piece with surrounding and much larger approved proposals already taking shape around it. It could not conceivably be regarded as a significant addition to the overall environmental impact of such development. This may be the cause of great economic harm to individual developers and, more importantly, it is likely to frustrate the public interest in much needed regeneration in areas such as the Isle of Thanet. However seemingly complicated the issues are, or how sophisticated and technical the statement of facts and grounds supporting the initial claim for judicial review, they should be subject to rigorous examination by the single judge at the permission stage of a claim for judicial review."
" 30 In practice therefore, the Claimant has a considerable interest in how the IPPC regime is administered. Any glass manufacturer , subject to the IPPC regime, is entitled to expect that it will be enforced in a fair, consistent and even-handed manner. Paragraph 1.12 of the ..Manual for A2 installations speaks of the need to provide " a strong framework for consistent and transparent regulation of activities and installations." .
31 The effect of the IPPC permit is that Quinn is given the advantage of being treated as an existing plant for the purposes of SG2 guidance and NOx emissions, even though it suffers from none of the disadvantages under which existing plants can operate. On the contrary, as a new installation Quinn can design its plant so as to readily accommodate now the secondary abatement techniques that it will have to install to bring NOx emissions down to the levels prescribed in SG 2 from the outset of operations, and required in the permit in 2009.
32 In effect, Quinn will have had a 5 year period of grace. Perversely, Quinn will be allowed as long to comply as existing manufacturers."
Delay
"(1) The claim form must be filed-
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose."
(a) the claimant's solicitors wrote to Quinn's solicitors on 9th March 2005 warning them that it was seeking to challenge the permit on the ground that it conflicted with the call in by the Secretary of State. Although that ground is one I have rejected, there can be no doubt that Quinn was on notice of an impending challenge;
(b) as I have already recorded, on 11th March 2005, Quinn's solicitors replied, making it clear that
" .the development .has been proceeding uninterrupted since October 2003. At the time of your challenge to the approval of amendments to the ..planning permission .our clients have made it abundantly clear that they intended to continue with their development. our clients have made long term contractual commitments to suppliers of materials, plant and equipment, and to glass purchasers, and have employed 118 full time glass manufacturing staff, most of whom are close to completing full-time training the start of production is imminent."
I find that the plans were well advanced before the date of the permit;
(c) as noted above, it was not until 17th March 2005 that Rockware's solicitors received the Justification File after unacceptable delays by Chester CC's solicitors;
(d) Rockware's solicitors sought information from Chester CC's solicitors by letter of 24th March 2005 relating to various important issues; the Glass Technology paper, the relevance of NOx emissions results from other sites in the UK, whether there had been any written report to the Chief Executive or any meetings, conversations, or other exchanges with him before he made his decision, where the Council's reasons were for not complying with SG 2, where the assessment of BAT was to be found, and where the reasons for not using oxy-fuel furnaces were to be found. Each of those questions was very relevant indeed, as subsequent events have shown. Despite chasing letters of 4th April, 6th April and 18th April 2005, it was not until 21st April 2005 that Eversheds got round to replying, and did so in very cursory form. I regard that delay as quite unacceptable.
(e) On 25th April 2005, so just 4 days after getting the reply, DLA sent a letter before claim setting out details of the proposed claim over 10 pages. A copy was also sent to Quinn's solicitors, who replied in very short but robust form on 4th May 2005.
(f) Eversheds replied on 10th May 2005 (over two weeks later) setting out a great deal of information not provided before, over 9 pages. They also attached copies of what are now the first witness statements from Messrs Hosker and Durham. Quinn's solicitors wrote again on 19th May 2005, setting out its case succinctly but again robustly;.
(g) The proceedings were lodged on 24th May 2005, within 14 days of the Eversheds response and receipt of the witness statements, within 6 days of the Quinn response, and within 3 months of the 2nd March 2005.
(h) Meanwhile, Quinn had fired up the furnaces on 11th April 2005. As Mr Taylor accepted, none of the delay after then added at all to any disadvantage sustained by Quinn.
Discretion generally
" principle and pragmatism combine to emphasis the legal fact that judicial review is a remedy of last resort. Where there is set in place an elaborate statutory structure for challenge to, and review of , and administrative decision, the structure must in the ordinary way be fully invoked before seeking to engage the judicial review jurisdiction. There may be exceptional circumstances; a point of principle may need to be determined which, in some cases, can most conveniently be done upon judicial review even before all statutory appeal or review rights have been exhausted."
In this case, unlike the Sandwell case Rockware has no right of appeal or right to statutory review. It seeks to establish an important point of principle on the interpretation of the statutory codes and the application of the statutory guidance. Chester CC has through its counsel asked this court to give guidance. I consider that the circumstances here are ones where judicial review is, by contrast, the route by which those legal principles may be most quickly and efficiently established.
Conclusion
(a) grant permission for Rockware to seek judicial review of the IPPC permit Number IPPC/A2/01/04 issued by Chester City Council on 2nd March 2005 to Quinn Glass Limited to operate an installation at Quinn Business Park, Ash Road, Elton, Cheshire, CH2 4LF
(b) quash the said permit.
Þ