QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (ON THE APPLICATION OF DAVID EDWARDS)
|- and -
|(1) THE ENVIRONMENT AGENCY
(2) FIRST SECRETARY OF STATE
(3) SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
Mr David Elvin QC, Ms Kassie Smith (instructed by the Treasury Solicitor and the Environment Agency) for the Defendants
Mr Stephen Tromans (instructed by Rugby Limited Legal Department) for the Interested Party
Hearing dates: 8th, 9th, 10th, 11th 17th March 2005
Crown Copyright ©
Mr Justice Lindsay:
"The decision impugned is one of [the Agency] permitting the Interested Party to trial burn waste tyres at its plant in Rugby."
It had not unnaturally been the burning of tyres which, throughout the long course of events between the Site Operator's application in August 2001 and the grant of permission on 12th August 2003, had chiefly excited comment and opposition. I say that that was not unnatural as burning rubber is notorious for the noxious smell given off and the dense smoke created and many, unaware of the way in which the chipped tyres would be burned in a modern "state of the art" kiln at temperatures of up to 1400 degrees, would expect and fear the worst.
"1. For the reasons set out in the Environment Agency's acknowledgment of service the Claimant does not appear to have a sufficient interest to make this claim.
2. The BAT ground is wholly unparticularised.
3. The EIA and BPEO grounds are insufficiently particularised. General statements of principle (even if arguable) are all very well, but how do they relate to the details of this particular proposal and its impact on this particular claimant?"
"The Claimant challenges the Environment Agency's (EA) decision of 12th August 2003…granting a PPC permit… which allowed Rugby Ltd…to operate its cement plant… near his home in Rugby using waste tyres as a fuel in the plant on a trial basis…"
A. There has been, in relation to dispersal through the air of particulates from the site, such a failure on the Agency's part duly to assess the same and the effects thereof and to make available to consultees prior to the decision of 12th August 2003 such assessment and other material already then available to it that the Decision Document and the related permit of 12th August 2003 should not be allowed to stand;
B. There has been such a misunderstanding by the Agency of the air-dispersal material which it had before it as to render its decision, at its discretion, to grant the permit of 12th August 2003 a decision at which no reasonable public authority in its place, properly comprehending the material which it had, could have arrived and that, accordingly, again, the Decision Document and the related permit should be quashed.
A. Full Information and Candour
(i) The EIA Directive:
"The execution of construction works or of other installations or schemes, other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;"
"45. It follows from Article 3 (1) (b) and the 4th Recital of the Directive that the essential characteristic of a waste recovery operation is that its principal objective is that the wastes serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources (ASA, cited above paragraph 69).
46. The combustion of waste therefore constitutes a recovery operation where its principal objective is that the waste can fulfil a useful function as means of generating energy, replacing the use of a source of primary energy which would have had to have been used to fulfil that function."
See also Commission – v - Luxembourg  ECR I – 1553 at paragraph 37.
Whilst the Directive with which I am chiefly concerned, on the assessments of the effects of public and private projects on the environment, does not seem itself expressly to distinguish between waste recovery and waste disposal, or, indeed, to need to do so, I see no sufficient reason why there should not be imported into the later Directive, when it speaks of waste, that distinction which the earlier one impliedly requires to be drawn.
"Any change or extension of projects listed in Annex I or Annex II, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment."
Such a change requires there to be an EIA. Installations for the manufacture of cement are projects listed in Annex II at item 5(b) and the works at Rugby had already been authorised under the IPC Regulations as I have explained. If, therefore, the Site Operator's application proposed any change which might have a significant adverse effect on the environment then it would require an EIA whether or not what was proposed amounted itself to a "project". But the only change that is proposed is as to the burning of chipped tyres as one of the fuels, the lesser one, to be burned in the kiln. I shall have below to look in more detail at whether the continuing operation of the site, whether or not burning tyres as fuel, has any significant adverse effect on the environment but it is plain, as Mr Wolfe's switch away from tyre burning as the principal ground of complaint hints at, that tyre burning in itself as a fuel has no significant adverse effects on the environment and, indeed, overall may even have beneficial effects on the environment. I thus cannot see the "change" provision as assisting Mr Wolfe in his argument that there needed to be an EIA assessment.
(ii) The application was no application:
"(g) The nature, quantities and sources of foreseeable emissions from the installation…into each environmental medium, and a description of any foreseeable significant effects of the emissions on the environment;
(h) The proposed technology and other techniques for preventing or where that is not practicable reducing emissions from the installation;
(i) The proposed measures to be taken to monitor the emissions".
I do not accept the argument, that I think is raised here too, that the Regulations fail adequately to transpose the requirements of the Directive into domestic law.
"…may, by notice to the applicant, require him to furnish such further information specified in the notice, within the period specified, as the [Agency] may require for the purpose of determining the application and if the applicant fails to furnish the specified information within the period specified the application shall, if the regulator gives notice to the operator that it treats the failure as such, be deemed to have been withdrawn at the end of that period".
There is thus, obviously, an adequate sanction available to the Agency should there be a persistent failure to give information that is truly needed if the application is to be properly determined.
(iii) Legitimate expectation:
"The Agency is now in the process of investigating:
- Whether the company are using best available technology
- The impact on health
- The use of energy
- The impact on the food chain
- The impact on the environment
Decisions will be based solely on an assessment of all the information received and the comments from statutory consultees and members of the public."
"Lord Mustill also explained in R –v- Secretary of State, ex parte Doody  1 AC 531 at 550 that:-
"(5) Since the person affected cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer".
In order to determine whether proper consultation in this particular case has taken place, it must not be forgotten that:-
"…the precise demands of consultation…vary according to the circumstances…the extent and method of consultation must depend on the circumstances. Underlying what is required must be the concept of fairness (per Keene J as he then was in R –v- London Borough of Islington, ex parte East  ELR 74 at page 88 relying on a passage in the judgment of Simon Brown LJ in R –v- Devon County Council, ex parte Baker  1 All ER 73 at 92."
"Although the Aqmau is part of the Agency, our advisory work is entirely independent of the decision-making process in relation to individual permit applications."
"Once he has reached his decision he must be prepared to disclose his reasons for it, because the Tribunals and Inquiries Act 1971 so requires; but he is, in my view, under no obligation to disclose to objectors and give them an opportunity of commenting on advice, expert or otherwise, which he receives from his Department in the course of making up his mind."
"I think that the Inspector was right in saying that the use of the concept of traffic needs in the design year assessed by a particular method as the yardstick by which to determine the order in which particular stretches of the national network of motorways should be constructed was government policy in the relevant sense of being a topic unsuitable for investigation by individual inspectors upon whatever material to be presented to them at local inquiries held throughout the country".
"If your committee wishes to make further representations, such representations can always be considered by the Secretary of State as part of the continuous consideration of any of the Department's proposals."
"The assessments were undertaken on a precautionary, worst case scenario basis. First, it assumed that all emissions would be constantly at the maximum permitted levels the Applicant applied to be set in the permit. This is highly unlikely to be the case during normal operation of the installation."
There may be some ambiguity about the word "constantly"; does it mean "round the clock, day in and day out" or merely refer to the level of emission, whilst there was any emission, being constantly kept at maximum permitted level? I take the latter to be intended. One of the reasons why emissions of such a kind were unlikely from the main stack was that the conditions imposed by the Permit specified for it maximum permitted levels lower than the Applicant had asked for.
"…. that their cumulative effect warrants further investigation. The assessment also predicted that the relevant EQS [statutory Environmental Quality Standard] will be breached locally, if all the sources were emitting at the ELV's [Emission Limit Values] at the same time and all particulate is assumed to be PM10. This is a very conservative approach and is very unlikely to occur in practice.
In addition, there are uncertainties with the modelling used to carry out this particular H1 assessment (although it can with certainty be said to have been very precautionary and to have overestimated the actual impact), because of the physical layout and variability of the emission conditions. The Agency considers that in reality the relevant EQS may not be exceeded."
"It should also be noted that the short-term assessment is precautionary, in that the maximum process contribution and the maximum background concentration may be separated both spatially and temporally such that the addition of the "worst case" contribution is unlikely. H1 suggests a more representative view can be obtained by comparing the short-term PC with the long-term background contribution …. and in this case that calculation would amount to 45% of the [statutory Environmental Quality Standard]. The Agency notes that no Air Quality Standard is breached."
The assessment also assumed, as noted in para 71 above, that it was unlikely that all the sources were emitting at the ELV at the same time and that all the particulates were PM10s, adding, in part in the same language as that of its para 7.158, (para 9.46):-
"The Agency's view is that this is not a situation that is likely to occur in practice.
In addition, there are uncertainties with the modelling used to carry out the H1 assessment (although it can with certainty be said to have been very precautionary and to have overestimated the actual impact, because of the physical layout and variability of the emission conditions). The Agency considers that it is possible that, in reality, the relevant [statutory Environment Quality Standard] may not be exceeded. As explained above, the current abatement techniques are considered to comply with indicative BAT [best available technique].
However, Condition 188.8.131.52 has been included in the Permit requiring the Applicant to investigate the ground-level concentrations resulting from these combined emissions, which will help to clarify the position and will enable the Agency to consider further whether additional abatement measures might be justified on BAT grounds."
"The operator shall complete a comprehensive audit of all particulate emissions from the site including point source and fugitive emissions. The audit will then be used to assess the combined impact of the emissions on air quality for both short-term and long-term scenarios. The operator shall develop BAT proposals for any remedial work required. A report outlining the assessment, its conclusions and measures to address any issues raised is to be forwarded to the Agency."
That was required to be done within 12 months from the issuing of the Permit.
"For all statistics, the ambient concentration of PM10 contributes a significant fraction of the relevant Air Quality objective. In fact, the predicted ambient mean annual PM10 concentrations in 2004 in Rugby is 22.5 ….. which is within the annual mean objective for 2004, but exceeds the objective for 2010. The 90.41 percentile of daily mean ambient PM10 concentrations is predicted to be 40 …. which represents 80% of the relevant daily mean objective. There is, therefore, little environmental headroom for particulate emissions."
I will refer later to there being little headroom. Because PM10 emissions from the main stack were low it followed that LLPS dominated the cement work's contribution to PM10 ground level concentrations, as to which, said Aqmau 1, there was a significant risk of exceedance. Aqmau 1 continues:-
"This risk is lowest when the plant is operating under "normal" emission conditions. The modelling suggests that the risk of exceedance is significantly increased over normal operating conditions, when the plant is operating at the proposed PM10 limits.
However, …. the specification of the low level particulate source terms is problematic and leads to large uncertainty in modelling their impact. The model results indicate that monitoring of both emission concentrations and flow rates is warranted."
"The modelling work suggests there is a possibility that some air quality objectives may be exceeded…."
the PM10 objective being one of them. It reported that monitoring of LLPS should be undertaken.
"First, it assumes that all emissions would be constantly at the maximum permitted levels the applicant applied to be set in the permit. This is highly unlikely to be the case during the whole operation of the installation".
"The Agency is satisfied that the Installation, operated in line with conditions set out in the permit, employs BAT and will comply with all relevant UK and EU legislation, including the PPC Regulations."
i) I am reminded of the weakness of Mr Edwards' personal position in relation to the effect on him of a grant or refusal of the relief sought. Far from being an established campaigner amongst those objecting to the operation at the cement works, he seems to have emerged only at a late stage and as a person so comprehensively without means as likely to attract maximum public funding for the objectors' cause. There is some, but in my view little, force, in this objection; Keith J, as I have indicated, held that Mr Edwards had sufficient standing to proceed and that it was not abusive for him to do so.
ii) There is no breach of either EC or domestic air requirements indicated in this case. If the works do emit particulates (to focus on them) to any significant and offensive degree, then those in the area will have remedies in public and private nuisance. Rugby Borough Council is already monitoring as to dust emissions under its obligations as to local air quality and has powerful sanctions able to meet any infringements. Aqmau has recommended monitoring. It is far from the case that persons in the area, if the Decision Document and Permit stand, are bereft of environmental protection. Not only has Rugby Borough Council duties as to the air but further Community-based requirements are already framed to come into effect – see the Waste Incineration Directive 2000/76/EC as to co-incineration of tyres and other waste-derived fuels with which the installation will need to comply. It is far from the case, if emissions do prove offensive or unlawful, that it will be impossible for fresh complaint to either halt operations at the works or to procure their amelioration.
iii) The process so far has been very lengthy and, no doubt, very costly; it is through no fault of the Site Operator that consultation was, if I am right, unfair by reason of the Agency's shortcomings on disclosure and to oblige the plant to be shut down upon its PPC authority being annulled until the Site Operator shall have mounted another application and pursued it to a conclusion, months, or, far more likely, more than a year ahead, would be massively and disproportionately prejudicial to the Site Operator, the contribution from whose works to overall pollution in the area is not significant.
iv) The judicial review process has not been as fair as one would wish to the Site Operator. Its earlier focus, as was everyone's, was on the burning of tyres as to which, in effect, its case succeeds. Had PM10s been brought forward earlier, whilst one cannot be sure whether the Site Operator's evidence or practical proposals in response would have been equally successful, it is fair to say that it has not had the full opportunity to bring forward such a response that one could have expected a more timely complaint by the objectors to have generated. I am asked to refuse permission to Mr Edwards to seek judicial review on the PM10 grounds but if I do not accede to that (as is my decision) then I must attach weight to the poor opportunity that the Site Operator has had to respond to those grounds.
v) It is not as if a failure to make Aqmau 1 and Aqmau 2 public barred Mr Edwards or other objectors from complaining about particulates. They took expert advice of their own and were throughout entirely free to raise such issues as to LLPS and PM10s as they chose.
vi) Even if I am right in my approach to Bushell supra, I am entitled to have in mind that the Agency could bona fide have believed that the case operated to make disclosure of Aqmau 1 and Aqmau 2 unnecessary and contrary to the Executive's ordinary practice. In turn, I am entitled and, in the absence of any clear contrary case being put, bound to regard what I have described as a shortcoming in the Agency's disclosure as not having been done as consciously wrong or with any dishonest or abusive intent but rather in what could have been conceived to be the ordinary (although in my view misconceived) practice in such an area.