England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		8 June 2010

JUDGE BEHRENS:

1. This is a renewed application for judicial review. It relates to a decision by the Environment Agency dated 24 June 2009 to grant an environmental permit for a proposed incinerator for the disposal of waste at Queen Elizabeth Dock, Salt End, Hull. Mr Yates-Taylor is a member of an environmental group, HOTI ("HOTI"), which I believe is Holderness Opposed to the Incinerator, who are, as the name suggests, opposed to the incinerator. He seeks an order quashing the decision.
2. There is little dispute as to the basic facts. In 1999 there was a waste partnership between Hull City Council and the East Riding of Yorkshire Council which granted a 25-year contract to the first interested party, WRG, in relation to the disposal of waste in the area. On 21 December 2006, after a planning application, planning permission for the incinerator was granted by the East Riding of Yorkshire Council subject to a number of conditions, and on 8 January 2007 planning permission was similarly granted by Hull City Council, also subject to conditions.
3. On 31 October 2007 there was an application by WRG to the Environment Agency for a permit for the incinerator. As I understand it, permission was granted but there was a challenge. As a result, on 6 February 2008 the permit was revoked and a fresh application was made on 9 December 2008. That permit was granted on 24 June 2009. It was accompanied by a decision document of some 123 pages in length.
4. Some three months less a day after the grant of that permit, this application for judicial review was made. It was considered on the papers in London by Sir Michael Harrison who refused permission. The application, as will shortly appear, raised four grounds. Sir Michael Harrison thought that there was nothing in each of them. In his refusal he said:

"Whilst I admire the ingenuity of the arguments raised under the four grounds of the claim, they have been effectively answered in the acknowledgment of service by the Defendant and Interested Parties. I do not consider that there was any arguable error of law involved in this case in respect of which it would be appropriate to grant permission."

5. The defendant and interested parties, perhaps unsurprisingly, seek to support that decision, whereas the claimant seeks to suggest that each of the four grounds which were raised before in the initial application and have been pursued on the renewed application give rise to arguable questions of law. Sir Michael Harrison thought it appropriate that it be determined in Leeds and it was subsequently transferred to the Leeds Administrative Court.
6. Before me Richard Harwood, instructed by Friends of the Earth, has appeared for the claimant, Mr Facenna has appeared for the Environment Agency, Mr Palmer for the Secretary of State and Mr Pickles instructed by Walker Morris for WRG. I should immediately say that I am extremely grateful for the very considerable assistance I have received from counsel and indeed I have no doubt their instructing solicitors in the preparation of this case, which raises areas of law with which I was not familiar prior to this case. All the skeletons have been very helpful and very succinct. In the result it has been possible to deal with the matter not perhaps within the time specified but not far from it.
7. There are as I have indicated four grounds of challenge. They appear to me to be distinct and therefore it is convenient to deal with them individually. Ground 1: the Environment Agency failed to give priority consideration to alternative processes, techniques or practices which avoid the formation and release of persistent organic pollutants ("POPS"), contrary to Regulation 4(b) of the POPS Regulations 2007 and Article 6(3) of the EC POPS Regulation.
8. It is necessary to look at the basis for this ground and that is to be found at page 303 in the helpful bundle with which I have been provided. Page 303 is in fact part of the 123-page decision. The position is that a draft decision was prepared and that was put out for consultation. As a result of that consultation, public interest consultants (I think instructed on behalf of HOTI but it does not matter) raised the question of Article 6(3) and the Environment Agency gave the response on page 303 which is the subject of the Ground 1 challenge. The relevant paragraph is the second paragraph of the Environment Agency response, which says:

"The Stockholm Convention distinguishes between intentionally-and unintentionally-produced POPS. Intentionally-produced POPS are those used (mainly in the past) in agriculture (primarily as pesticides, e.g. HCB) and industry (e.g. PCBs). Those intentionally-produced POPS are not relevant where waste incineration is concerned but it is these that we understand Article 6(3) addresses."

9. It is therefore clear it was the Environment Agency's view that Article 6(3) applied to intentionally produced POPS. It is common ground between everybody that that interpretation was wrong and that Article 6(3) applies to unintentional produced POPS and therefore, says Mr Harwood, here we have an error of law on the face of the decision and it is an error of law which inevitably results in the decision being quashed.
10. Whilst it is accepted that that statement is an error of law, the defendant and the interested parties submit that there is absolutely no reason to quash the decision. They submit that appropriate consideration was in fact given in the decision letter by the Environmental Agency because they took into account precisely the same matters as they would have done under the Stockholm Convention. They that this is clear both from the Stockholm Convention itself and from the decision letter which sets out in detail the matters that were taken into account.
11. So Article 6(3) is in substantially the same terms as I have indicated for Ground 1, but it reads:

"Member States shall, when considering proposals to construct new facilities or significantly to modify existing facilities using processes that release chemicals listed in Annex III, without prejudice to Council Directive 1996/61/EC(14), give priority consideration to alternative processes, techniques or practices that have similar usefulness but which avoid the formation and release of substances listed in Annex III."

Mr Facenna referred me to other provisions in the POP Regulations. He took me to Article 1, which sets out the objective. He took me to Article 3, which, subject to the exemptions in Article 4, bans the intentionally produced POPS. He acknowledged or accepted that Article 6 deals with unintentionally produced POPS, and he drew my attention to the other regulations in Articles 6(1)and 6(2) whereby under 6(1) there is a necessity for member states to have an inventory and under Article 6(2) there is a necessity for member states to have an action plan with a view "to identify, characterise and minimise with a view to eliminating where feasible as soon as possible" the total release of such POPS.

12. He also took me to the Stockholm Convention and drew my attention to the provisions in relation to elimination on page 397. He then took me to Annex C on page 404 in the bundle, which is dealing with, as it says, unintentional production of POPS. He showed me Part II, the source categorisations, which he pointed out under sub-paragraph (a) included waste incinerators. He then took me to Part V which is general guidance on the best available techniques and best environmental practices. Under (a) he drew my attention to the general prevention, which is that "Priority should be given to the consideration of approaches to prevent the formation and release of chemicals listed in Part I". There is then a list of (a) to (h) of what are described as useful measures. He then took me to Best Available Techniques (sometimes referred to as BATs) and he showed me the heading:

"The concept of best available techniques is not aimed at the prescription of any specific technique or technology, but at taking into account the technical characteristics of the installation concerned, its geographical location and the local environmental conditions.  Appropriate control techniques to reduce releases of the chemicals listed in Part I are in general the same.  In determining best available techniques, special consideration should be given, generally or in specific cases, to the following factors, bearing in mind the likely costs and benefits of a measure and consideration of precaution and prevention: [and a number of general considerations are set out]"

13. Then under sub-paragraph (b) he referred me to the general release reduction methods:

"When considering proposals to construct new facilities or significantly modify existing facilities using processes that release chemicals listed in this annex, priority consideration should be given to alternative processes, techniques or practices that have similar usefulness but which avoid the formation and release of such chemicals."

14. He drew to my attention that that sentence was precisely the same as the sentence in Article 6(3) of the EC POPS regulation with the result, he said, that insofar as there had been compliance with the Stockholm Convention Annex C, there had also been compliance with Article 6(3) even though the Agency took the view wrongly that 6(3) did not in fact apply.
15. I was then referred to various parts of the decision letter. In particular I was referred to page 1999, whereby it shows that this plant would create energy, the processes description. I was taken to page 203 where there is a detailed description of alternative designs and alternative operations. He submitted that there was full consideration of alternative designs in that passage. Mr Pickles drew to my attention that there was a very full consideration in the report to BATs.
16. In those circumstances the submission was that despite the error of law this is a case where in fact full consideration has been given to the requirement of Article 6(3) and that Ground 1 is unarguable. I have to say that I accept that submission.
17. Ground 2 is that there was a failure to obtain and consider public responses to the local planning authority's statutory consultations under the planning regime contrary to Article 9.2 of the IPPC Directive 2008/1/EC and schedule 7, paragraph 5(1)(b) of the Environmental Permitting Regulations 2007. The starting point of that submission is Article 9.2, which is to be found at page 533 in the bundle. Article 9 deals with conditions of the permit and Article 9.2 reads:

"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."

18. Articles 5, 6 and 7 of the directive with which I am concerned are on pages 539N, P and Q. It is in fact common ground that I am not concerned with Article 7. As far as Article 5 is concerned, that deals with information provided by the developer and in paragraph (3) of Article 5:

"The information to be provided by the developer in accordance with paragraph 1 shall include at least:

a description of the project comprising information on the site, design and size of the project,

a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,

the data required to identify and assess the main effects which the project is likely to have on the environment,

an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects,

a non-technical summary of the information mentioned in the previous indents."

It is plain from documents I was shown in the reply, the application form, that the developer was asked for and did supply his environmental assessment.

19. Under Article 6 the public are required to be informed whether by public notice of various matters so as to give them early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2). The information that has to be provided to the public is listed in sub-paragraphs (2)(a) to (g), including the draft decision.
20. The criticism in this case is that although the Environment Agency had its own consultation process and although the Environmental Agency took into account the results of its own consultation process, it did not take into account the results of the consultation process carried out by the planning authorities when planning permission was granted in the late 2006 or early 2007 because instead of taking into account the consultations, it took into account the conclusions of the Planning Committee.
21. The defendants and the interested party say that they have done nothing wrong in law. They point out that when one goes back to Article 9.2, the requirement is to take into account or to be taken into consideration for the purpose of granting the permit any relevant information obtained or conclusion arrived at. They say that it is sufficient – 'or' means 'or' -- and they say it is sufficient to take into account the conclusion of the Planning Committee. Alternatively, they submit that the opinions expressed by the consultees or members of the public is not information obtained within the meaning of Articles 5, 6 or 7. In support of that submission, they refer me back to the Directive and refer me to Article 8 where there is a specific distinction between the conclusions and the information.
22. In my view that the opinions of members of the public are not "information" within the meaning of Articles 5, 6 or 7. In those circumstances I do not have to decide whether 'or' in this sub-paragraph in Article 9.2 means 'and' or means 'or'. There are a number of reasonably well-known decisions where 'or' has been interpreted to mean 'and'. Those have not actually been brought before me today and if my decision had rested on whether 'or' meant 'or' or 'and', I suspect I would have thought it was arguable, but I have come to a clear conclusion in relation to the meaning of information and in those circumstances it seems to me that Ground 2 is also unarguable.
23. Ground 3: that they failed to impose an emission limit, value or equivalent parameter or technical measure in respect of emissions of CO2 contrary to Article 9(3) of the IPC Directive. We have just been looking at 9.2, but 9.3 reads as follows:

"The permit shall include emission limit values for polluting substances, 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."

24. It is, I think, common ground that no level was placed for CO2. It is also common ground I think that CO2 is a polluting substance in the sense that it adds to global warming and that significant quantities were likely to be emitted, even though CO2 is not a substance which is listed in Annex 3.
25. The Environment Agency dealt with this matter on page 214 of the bundle, page 19 of the decision letter, under a heading "Global Warming Potential" ("GWP"). They say this:

"The CO2 emissions from the facility are undoubtedly significant, but CO2 differs from other pollutants emitted from the Installation, in that its effect on the environment is global rather than local. It is for this reason that CO2 is not included in Annex III to the IPPCD, which lists the main polluting substances that are to be considered when setting emission limit values (ELVs) in Permits. The Environment Agency recognises that emissions of CO2 are inevitable where waste is combusted. Once the amount and type of waste had been set, the CO2 emissions are, essentially, a given [can be calculated]. It is not therefore appropriate to set an ELV for CO2. This does not, however, mean that no further consideration needs to be given to this emission."

26. Mr Facenna referred me to the terms of the permit itself and in particular he referred me to page 4 of the permit (page 166 of the bundle) and to paragraph 4, Clause 2.3.3 of the permit:

"Waste shall only be accepted if:

(a) it is of a type and quantity listed in Schedule 3 of Table S3.2; and

(b) it conforms to the description in the documentation supplied by the producer and holder."

27. He referred me to the total amount of waste which can be disposed of, and in effect he submitted firstly that this was sufficient to comply with Article 9.3 and that, given the different nature of CO2 waste, it was inappropriate to have a specific level and it was sufficient for the level to be cited to control CO2 by controlling in effect the total level of the waste.
28. Again, I agree with that submission. It seems to me that having regard to the wording of Article 9.3, what has been done in this case is sufficient to comply with it.
29. In those circumstances I move on to Ground 4, which is in my view a highly technical complaint.
30. Ground 4: the public participation provisions in Article 15(1) and Annex V of council Directive 96/61/EC concerning integrated pollution prevention and control, the IPPC Directive as amended, were not lawfully transposed in the Environmental Permitting (England and Wales) Regulations 2007, and it is further claimed as a result that the public participation process in the application for the environmental permit was unlawful and therefore it follows that the permit was unlawfully granted.
31. This was dealt with by Mr Palmer on behalf of the Secretary of State. I indicated that I regard it as a technical argument. This is because there is in fact no complaint about the public participation process on the facts of this case. The public participation was extensive; there was extensive consultation, there was adequate time for the public to make comments and a draft decision was taken and that too was put out for consultation. I was told that HOTI itself made a number of submissions in the course of the public consultation process. So there is no suggestion here that there was in fact no adequate public consultation or public participation,
32. It is, however, said that the whole of the process is flawed because there is no proper transposition of the provisions in Article 15.1. Article 15 is at page 535 of the bundle. It says:

"1. Member States shall ensure that the public concerned are given early and effective opportunities to participate in the procedure for:

- issuing a permit for new installations,

- issuing a permit for any substantial change in the operation of an installation,

- updating of a permit or permit conditions for an installation in accordance with Article 13, paragraph 2, first indent.

The procedure set out in Annex V shall apply for the purposes of such participation."

Annex V is at page 539 H:

"1. The public shall be informed (by public notices or other appropriate means such as electronic media where available) of the following matters early in the procedure for the taking of a decision or, at the latest, as soon as the information can reasonably be provided:"

Then it sets out a number of matters from (a) to (g) including the nature of possible decisions or where that is done the draft decision.

Under sub-paragraph 3:

"3. The public concerned shall be entitled to express comments and opinions to the competent authority before a decision is taken.

4. The results of the consultations held pursuant to this Annex must be taken into due account in the taking of a decision."

Then sub-paragraph 5 reads as follows:

"5. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States. Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of this Annex."

So one can see that the detailed arrangements are delegated to the member states but the member states have to provide reasonable time frames in accordance with Annex V.

33. Paragraph 6 provides to some extent for public participation in relation to certain applications and it requires the regulator to take the steps it considers appropriate to inform the public consultees of the application and the place and times where its public register can be inspected free of charge and invite public consultees to make representations on the application and specify to the public consultees the address to which and the period for which it represents. and therefore sub-paragraph 6, says
34. Mr Harwood notes that it does not set out the detailed regulations. He submits that it simply delegates the power to the regulator take the steps it considers appropriate. I was also referred to schedule 7 which applies to applications of this type which provides that the regulator must exercise its functions under the public participation provisions so as to meet the requirements of Article 15.
35. Mr Harwood's complaint is that this is all too vague. Nothing is set out in detail and that in order to comply with Article 15 there has to be the detailed regulations set out in the regulations. It is not sufficient to delegate them to the regulator under Article 16 and simply say that he must comply with Article 15. For my part I do not see why. Mr Palmer referred me to various authorities to the effect that it is not necessary for the member state to set out in detail the regulations, and I do not see why one should not have the flexibility that is provided for in these regulations.
36. In the alternative it is submitted that, if there is to be a challenge to these regulations, this judicial review is not the place for them to be made. In my view there is force in that submission. Merely because the regulations may be said to be too vague is not in my view sufficient to challenge the validity of this permit, especially where, as here, it is common ground that there was effective participation by the public.
37. For these reasons I have come to the conclusion that Sir Michael Harrison's view that all four grounds were unarguable was correct. In those circumstances it is not necessary for me to consider the alternative defences, which are that there is no prejudice to the claimant and that the submission of this application on the last day of the three months normally permitted for judicial review is in fact too late because it is not prompt. I do not need to consider either of those arguments. In my view this application for judicial review should be dismissed.

MR FACENNA: In the light of your Lordship's judgment I am instructed to apply for the Agency's costs of defending the claim, not including today's proceedings. I can hand up a statement of costs which has been served on the other side already and they were told quite some time ago what the amount was. It is not an unreasonable amount given the complexity of the claim. There has been a certain amount of correspondence between the parties --.

JUDGE BEHRENS: These costs do not include today.

MR FACENNA: They do not include today.

JUDGE BEHRENS: I was being today yesterday that apparently you cannot get today's costs.

MR FACENNA: That is right.

JUDGE BEHRENS: I do not quite understand why but I am told the Court of Appeal said so.

MR FACENNA: The White Book says that there is no obligation on defendants to turn up to proceedings where is there is an obligation to produce an Acknowledgement of Service, so we are on that basis, apparently, defendants are entitled to the cost of submitting an acknowledgement but not of turning up --

JUDGE BEHRENS: Your attitude is exactly the same attitude as the attitude on behalf of the Secretary of State yesterday so I didn't have to look at it and consider it in any detail. You are not claiming costs of today.

MR FACENNA: I am not claiming costs.

JUDGE BEHRENS: And so I do not need to consider whether if you had so claimed them I would have allowed them.

MR FACENNA: Yes. There is one background point which I draw to your Lordship's attention. There has been a certain amount of correspondence between the parties in relation to the financial position of the claimant. It has been disclosed in the course of that that HOTI has managed to raise some £7,000 towards the costs of this claim and this was disclosed in the context of discussions leading to agreement on the protective costs order. Ultimately the agreement was that the cost protection would extend to £10,000 which your Lordship would see that we're well within that figure. And on that basis I do apply for the Agency's costs for the Acknowledgement of Service.

MR HARWOOD: My Lord, I apologise, I object to this in terms of the principle and in terms of the sum.

JUDGE BEHRENS: I am sorry?

MR HARWOOD: I object to the principle of costs and the sum.

JUDGE BEHRENS: Yes.

MR HARWOOD: I can deal with both those points by reference to the decision in the Court of Appeal in Ewing, which should be at the back of the interested party's bundle.

JUDGE BEHRENS: I don't have any other bundle. I have one bundle. There may have been two at one stage but somebody very kindly put them altogether in one.

MR HARWOOD: In that case it may well be right at the back.

JUDGE BEHRENS: There is something here which seems to be an authority I have not looked at.

MR HARWOOD: The Acknowledgment of Service put in a (inaudible) of authorities

JUDGE BEHRENS: Uniplex?

MR HARWOOD: (inaudible).

JUDGE BEHRENS: Additional authorities, claimant?

MR HARWOOD: (Inaudible) Westlaw judgment. I think the final (inaudible).

JUDGE BEHRENS: (Inaudible) German?

MR HARWOOD: A decision of the Court of Appeal which considered amongst other things the approach to costs of the acknowledgment of service in judicial review proceedings and—

JUDGE BEHRENS: I regularly get asked for them, normally in the sum of £800 or £560.

MR HARWOOD: My Lord, that is my second point. Perhaps I can make both points in the process. It is dealt with by the judge at two points. First of all on paragraph 40, which should be on page 9 of the judgment, of the judgment of Carnwath LJ.

JUDGE BEHRENS: Paragraph 40.

MR HARWOOD: Paragraph 40.

JUDGE BEHRENS: "I should add a brief comment on the function of "summaries of grounds"…, that one.

MR HARWOOD: Yes. And if I can quickly take my Lord…

JUDGE BEHRENS: Do not assume I know what Mount Cook says.

MR HARWOOD: What Mount Cook does is to say in principle that the costs of acknowledgment of service (inaudible) if permission is refused. What it does not say, my Lord, it does not really say much more about the topic than that.

JUDGE BEHRENS: So that is the starting point.

MR HARWOOD: That is the starting point.

JUDGE BEHRENS: Right. Now I move on to 41.

MR HARWOOD: Perhaps if my Lord quickly...

JUDGE BEHRENS: "While I do not of course question the principles established by that decision, they must not be applied in a way which seriously impedes the right of citizens to access to justice, particularly when seeking to protect their environment.

MR HARWOOD: 40, 43 --.

JUDGE BEHRENS: Wait a minute. (Pause) I think my copy of the judgment goes from 43 to 52.

MR HARWOOD: It is double-sided.

JUDGE BEHRENS: That is why. I am looking at 47. Did 47.1 happen in this case?

MR HARWOOD: The Environment Agency did not ask for costs with the acknowledgment of service and summary grounds. There was a request for collection by WMG. Sir Michael Harrison did not award any costs. So the first point here is the Environment Agency is asking months after it should have been to be taking advantage of a renewal to seek its costs which should have been applied for a long time ago. The principle on renewal (inaudible) earlier it is the Practice Direction Part 4 which says that the costs of a renewal hearing would normally be awarded in favour of the successful defendants.

JUDGE BEHRENS: It is probably very good for me to look at that.

MR HARWOOD: It simply unfortunately just deals with the hearing.

JUDGE BEHRENS: Can we just look at it? I had the same point yesterday.

MR HARWOOD: Practice Direction 54 I think paragraph 8.

JUDGE BEHRENS: I had the same point yesterday. Practice Direction, not 54A.

MR HARWOOD: It is the main Practice Direction 54. I am not sure if it is 54A or not.

JUDGE BEHRENS: 54A is…I see. (Reads) Shall I go and get my White Book? (Pause) I have not found it. I can pass you this. Can you be very kind and pass me the 2009 one. (Pause).

MR HARWOOD: It is in respect of rule 54.10.

JUDGE BEHRENS: Are you looking the rule or the Practice Direction.

MR HARWOOD: It is Practice Direction 54 A, it is in the same volume at page 1705.

JUDGE BEHRENS: I see. This is last year's.

MR HARWOOD: I will pass it --.

JUDGE BEHRENS: It is under 54.10, is it?

MR HARWOOD: It is a Practice Direction where it deals with 54.10. I will just pass it up. It's paragraph 8.6 there.

JUDGE BEHRENS: Right. "Where a defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant."

MR HARWOOD: Yes, my Lord, that is the answer on the hearing point.

JUDGE BEHRENS: Yes.

MR HARWOOD: That's the answer on the hearing point. But what has prompted cases like Ewing is the fact does not say anything about acknowledgment of service costs.

JUDGE BEHRENS: At least I now know why they conceded yesterday –

MR HARWOOD: (Inaudible).

JUDGE BEHRENS: Yes.

MR HARWOOD: So that is the answer to the question of hearing. But in terms of the question of the Acknowledgment of Service there are simply no requests made by the Environment Agency at the time that applied at the time and (inaudible) they then have avenue of appeal, but what is happening here is on a renewal hearing where the Practice Direction does give costs protection effectively to a unsuccessful claimant in the renewal hearing the claimant is being threatened with quite significant sums of costs incurred by the agency at an earlier stage in the proceedings which they had not sought at that time. So the first point, my Lord, is that the agency are too late to apply for the costs of the acknowledgment of service in the grounds first as a matter of general principle and secondly, a point made absolutely clear by Ewing.

JUDGE BEHRENS: Ewing as well as this one.

MR HARWOOD: That case of Ewing.

JUDGE BEHRENS: This is Ewing.

MR HARWOOD: The second point is…

JUDGE BEHRENS: Mr Ewing is obviously one of these gentlemen who has had a number of cases.

MR HARWOOD: He is a vexatious litigant officially. The first point is the agency. The second point follows from what was also said in Ewing is that the agency did vastly more work than is proper for acknowledgment of service. In Ewing at paragraph 44 Carnwath LJ draws a distinction between detailed grounds and summary grounds and pointed out at paragraph 44 (inaudible) two and a half pages. The point has been reinforced by the Court of Appeal in a number of decisions including by the then Master of Rolls, Sir Anthony Clarke in a case called Davey (inaudible).

JUDGE BEHRENS: Couldn't read them.

MR HARWOOD: Yes. What (inaudible) put in 19 pages of summary grounds in a situation where the grounds being advanced in the case were the grounds which were in the pre-action letter which the agency had responded to in the pre-action letter and there is, I entirely understand why someone trying to knock out proceedings would throw in everything that they can get away with it but that does not entitle them to the costs. Those are not remotely summary grounds.

JUDGE BEHRENS: £213 pounds an hour is a bit high, is it not?

MR HARWOOD: It is given that whilst in-house lawyers are able to charge on a profits basis the indemnity principle still applies --

JUDGE BEHRENS: I am just thinking, it is higher the going rate. Aren't the Environmental Agency based in Bristol?

MR HARWOOD: Yes

JUDGE BEHRENS: Leeds rates, I think it may now be £213 but they did not go up until Lord Neuberger put them up in April 1st of this year and the acknowledgment of service was a bit before that.

MR HARWOOD The higher rates are there.

JUDGE BEHRENS: But even so you would say….the rate is a very small part of this case.

MR HARWOOD: A great deal of time, some hours of solicitor time and what would appear to be almost 23 hours --

JUDGE BEHRENS: We have £2,000 of Mr Facenna's time.

MR HARWOOD: Yes and the Agency pay Treasury Panel rates which are (inaudible).

JUDGE BEHRENS: That is no doubt why it comes to £2, 279.98.

MR HARWOOD: As a mathematical exercise where the pennies are.

JUDGE BEHRENS: Every minute.

MR FACENNA: (Inaudible)

JUDGE BEHRENS: Every minute has been accounted for.

MR HARWOOD: So my Lord, to bring the minutes to a halt, let alone the hours to a halt. Firstly, the agency shouldn't have (inaudible) the application. Secondly, they have gone wildly beyond what has properly summary grounds of response particularly given the pre-action protocol covered all the grounds which have been raised and so if any sum was to be awarded it should really be summarily assessed at very modest sums of well under £1,000. My Lord, those are my submissions

MR FACENNA: My Lord can you pick up Ewing again and refer to paragraph 20 in that judgment which is the summary of has actually said in Mount Cook, and particularly you will see the indented paragraph.

JUDGE BEHRENS: I am in trouble. I have the same problem. It's on the back of 29.

MR FACENNA: Yes. The indented paragraph is the quotation from Lord Justice Auld's judgment in Mount Cook which summarise the decision: "The effect of Leach, certainly in a case to which the pre-action protocol applied and where a defendant or other interested party had complied with it, was that a successful defendant or other party at the permission stage who had filed an acknowledgment of service pursuant to rule 54.8 should generally recover the costs of doing so from the claimant whether or not he attended any permission hearing." Now the point Mr Harwood has put to you is nothing to the point. I said at the outset (inaudible). What we are talking about are the costs which Auld LJ says we are generally entitled to recover, having complied with the acknowledgement of service.

JUDGE BEHRENS: What happens if you file your acknowledgement of service and it does not claim costs and there is no application to renew?

MR FACENNA: I can explain the position in relation to that. Invariably for (inaudible) defendants there will be a paragraph at the end of the summary guidance in accordance with Mount Cook (inaudible) service. The reason it was not in this case is because the claimant did not (inaudible) at the time it was made (inaudible) acknowledgment of service. So we would not have recovered the cost.

Yes, you would. You would have got an order for costs subject to whatever that law is.

MR FACENNA: Yes, but in practice it would never be recovered.

JUDGE BEHRENS: The Treasury Solicitor applies to me every time.

MR FACENNA: And the practice that money is never recovered.

JUDGE BEHRENS: I know the money is never recovered.

MR FACENNA: In the circumstances given that he was a legally aided claimant--

JUDGE BEHRENS: It is the same point, is it not? If at the time you put your acknowledgment of service in he was legally aided he is entitled to (inaudible).

MR FACENNA: Well (inaudible) subsequently.

JUDGE BEHRENS: Was it revoked?

MR FACENNA: It was revoked, precisely. Which is in we are in a position where I can hand up some of the correspondence because frankly the suggestion that this is sort of ambush having turned up at the permission hearing or that it is way out of proportion is a ludicrous one when one looks at the correspondence. Because there is months of correspondence where they were told what our costs were and that we wouldn't (inaudible) £5,900 in the sum (inaudible), so we did not claim costs because he was legally aided, the certificate was revoked and we know there is £67,000 sitting in a the bank account which HOTI have raised because they must have been made aware at the time that there would be a risk of bringing this challenge. We did respond to the pre-action protocol and frankly at that point those advising (inaudible) should have taken the opportunity to reconsider the application for permission. They pressed on with all of the grounds. They have pressed on again since the refusal for permission and in the circumstances it is not right that the public purse should have to bear the cost of responding to this case when the Court of Appeal has made it clear that public authority defendants are entitled to recover the cost of acknowledgement of service. As to the amount, £213 is the current amount for a solicitor of that standing. Your Lordships has made a fair point which is that current value so some of that amount would have been incurred beforehand.

JUDGE BEHRENS: When did you do the acknowledgment of service?

MR FACENNA: It was…

JUDGE BEHRENS: We're probably only talking about £10 an hour. I think he is a Grade A solicitor. I am assuming Bristol is the same as Leeds which I expected it will be.

MR FACENNA: Yes. The figure comes from the court's website.

JUDGE BEHRENS: Yes, it is in the White Book.

MR FACENNA: The summary grounds were lodged on October 2009 so --.

JUDGE BEHRENS: About £201.

MR FACENNA: That might be right. The Treasury rate I was being paid at the time was £80 an hour. There are a lot of hours that have gone into this case. It has taken us a whole day to argue it. It is not a case where we could pitch up with some short response to the (inaudible). I was in the same position as your Lordship in that I certainly had never known anything about the POPS regulation before this came on. It is a rather technical area. It did require quite a lot of work to put in to prepare the response in order to be fully up to date and in my submission it is (inaudible) accordance with the principles laid out in Mount Cook entitle to recover the costs particularly when we know the claimant has access to the money (inaudible).

JUDGE BEHRENS: Thank you.

MR FACENNA: There is one further point which is, although there is no provision for this in CPR 54 after we put in our acknowledgement of service the claimant put in a further set of observations which were two points, which we were then had respond to so in fact as a result of them having two bites at the cherry our costs went up because we had to put in a further document prior to –

JUDGE BEHRENS: What was the date when Legal Aid was revoked?

MR FACENNA: HOTI told us about it at least on beginning of February I think.

JUDGE BEHRENS: What was the date when an application for renewal was made?

MR FACENNA: It was after that.

JUDGE BEHRENS: After that.

MR FACENNA: Yes. At the permission stage.

JUDGE BEHRENS: I used to know it. I have got it on my little chronology here? 19th January was refusal. In theory the renewal and I expect in practice should be within seven days of 19 January because that is what the form says.

MR FACENNA: Acknowledgment of renewal was made on 28 January.

JUDGE BEHRENS: That probably was exactly because it would have taken a few days to go. I see, so at the time when you learnt that the Legal Aid had been revoked there was already an application to renew and the correspondence then started, did it?

MR FACENNA: Yes my Lord. We were sent a letter or the agency was sent a letter (inaudible) February.

JUDGE BEHRENS: Thank you.

MR FACENNA: Saying he has had certificate revoked.

JUDGE BEHRENS: Thank you.

MR FACENNA: That was when discussions began on (inaudible) costs.

JUDGE BEHRENS: Thank you very much. (Pause) Anything anybody wants to say? (Pause) No, thank you very much.

There is now before me an application for costs by and only by the defendant because there is a protected costs order under which it had been agreed between the claimant and all the interested parties that they will not make any application for cost either way and therefore in accordance with that nobody has sought to go behind that.

So far as the Environment Agency is concerned the application is for the costs only in respect of the acknowledgment of service, which total of £5,936.68 is claimed. Two points are taken. One, as a matter of principle, so far as the principle is concerned I have very helpfully been referred as the Mount Cook decision where Auld LJ indicated that the normal position is that a successful defendant who files an acknowledgment of service in judicial review proceedings should generally recover the costs of doing from the claimant whether or not he attends any permission hearing. And I have also been referred to the Practice Direction on judicial review, Practice Direction A, which makes it clear that the normal rule also is that the costs of' attending the renewal hearing by a successful defendant are normally not recoverable.

In Ewing v Office of the Deputy Prime Minister, Lord Justice Carnwath gave further guidance, not as to the general principle, but as to the level of costs, making it clear that the decision must not be applied in a way that seriously impedes the right of citizens' access to justice, particularly when seeking to protect their environment, and he also draws attention to the amount of material that needs to go into a summary of grounds, particularly where the pre-action protocol has been complied with. And so far as the points of principle are concerned, it is accepted that if an application had been made in the acknowledgement of service in the normal way, an order for costs might have been made. But no application was made in the acknowledgment of service because at that time the claimant, Mr Yates Taylor, had the benefit of Legal Aid and as a result an order for costs would only have been enforceable after an assessment of Mr Yates Taylor's means, which in practice might well have meant that no order for costs would have been recoverable. In those circumstances the Environmental Agency decided at that stage not to put in application for costs.

At a time after the decision of Sir Michael Harrison and after an application had been made to renew, the Environment Agency were informed that Legal Aid had been revoked and immediately started correspondence about its costs. In those circumstances it is said that even though no application was made at the time there is no reason why I should not make an order for the cost of the Acknowledgment of Service. It seems to me given that the Legal Aid has been revoked that in principle there is no reason why Mr Yates Taylor should not pay the costs of Acknowledgement of Service in accordance with Mount Cook.

The next question therefore is the amount of costs. I accept that this case is out of the ordinary but I still think the sum of £5, 936.68 is on the high side. A fairly minor point is that the rate charged is too high, being the current Grade A rate. It is very difficult for me to assess cost. I am conscious of the fact that in a lot of judicial review cases I have to deal with, some of which seem to me to raise quite complicated points, the Treasury Solicitor puts in a bill at under £1,000 usually between £500 and £800 for preparing the acknowledgement of service. Of course it is right that some of the issues in this case were novel and new. It is equally right to say that insofar as time was spent on the Ground 4 point, that is a point substantially dealt with by the Secretary of State and not the Environmental Agency. It is difficult for me. I propose to reduce the sum of £5,936 and to award a round figure of £2,500 in relation to the filing of the Acknowledgement. I am conscious HOTI may well have raised more, but that does not seem to me to affect the position. I do think that the costs are on the high side. That is all, I hope.

MR HARWOOD: Yes.

JUDGE BEHRENS: You can't get permission to appeal from me. You have to go to the Court of Appeal.

MR HARWOOD: Yes.

JUDGE BEHRENS: To take the matter any further. I learnt that a week ago too. It is all very interesting this area of law. Thank you very much.