Applicant carrying on waste treatment and disposal activities under licence – Environment Agency serving notice suspending licence on grounds of serious pollution or harm to human health – Whether notice according with requirements of section 38(12) of Environmental Protection Act 1990 – Appeals dismissed
The applicant company occupied premises on Chemical Road and Engineer Road, West Wiltshire Trading Estate, Westbury, Wiltshire, where waste treatment and disposal activities were carried out. Those activities were authorised by two waste management licences granted by the waste regulation authority under section 35 of the Environmental Protection Act 1990. One licence authorised, inter alia, the solidification of various wastes by mixing them with cement kiln dust from cement manufacture or with other suitable dusts.
By a notice of May 1997 the Environment Agency suspended the licence, under section 38(6) of the 1990 Act, in so far as it permitted the treatment of waste by the solidification process. The suspension was on the ground that it appeared to the Agency that the continuation of those activities would continue, and might cause, serious pollution of the environment or serious harm to human health. The notice stated that: “This suspension is to cease when the Environment Agency notifies you in writing that it is satisfied that the suspended activity can be carried out without causing serious pollution of the environment or harm to human health.”
The applicant’s appeal, under section 43 of the 1990 Act, from the decision to suspend the licence was dismissed. The applicant then challenged the validity of the notice, contending that its terms did not accord with the requirements of section 38(12) of the Act. By section 38(12): “Any… suspension of a licence… under this section shall be effected by notice served on the holder of the licence and the notice shall state the time at which the… suspension… is to take effect and, in the case of suspension, the period at the end of which, or the event on the occurrence of which, the suspension is to cease.” It was common ground that the notice did not state any period at the end of which the suspension was to cease, and accordingly the issue raised on the appeal was whether it stated “the event on the occurrence of which, the suspension is to cease”.
Held: The application was dismissed.
1. Although the event required to be stated in the notice had to relate to the purpose of suspension, there was no reason to import into section 38(12) any further limitation on the ordinary meaning of the word “event”. It would be difficult to describe as an “event” the process by which a corporate body, such as the Agency, became satisfied of a particular state of affairs; however, the receipt of notification that it was so satisfied was capable of being an “event”. Accordingly, the statement in the notice, that the Agency would notify the defendant when it was satisfied that the suspended activity could be carried out without causing serious pollution of the environment or harm to human health, amounted to the requisite notification required by section 38(12).
2. Moreover, there were good reasons why the Agency should be able to describe the event in that manner. A suspension notice might be served where there had been or might be serious pollution or harm to human health. In such cases, it was important that the Agency should be able to act promptly, and in many cases it might not be possible to identify why a particular process was causing serious pollution, much less the steps that would be required to remedy the matters. The structure of section 38 enabled a notice in general terms to be served suspending the offending activity. The formulation adopted in the notice also had the advantage that it conferred on the recipient a measure of flexibility as to the steps that could be taken, at a time when there might be considerable uncertainty as to what was needed.
Rhodri Price Lewis (instructed by Hadens, of Lichfield) appeared for the applicant; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the respondent.
Thomas Elliott, barrister
