Pollution control – Authorisation – Regulatory regime – Defendant granting authorisation for waste incineration installation in response to application made under old pollution control regime – New regime in force by date of authorisation – Whether defendant having power to grant authorisation – Paragraph 3A of Environmental Protection (Prescribed Processes and Substances) Regulations 1991 – Pollution Prevention and Control (England and Wales) Regulations 2000 – Claim dismissed
The claimants objected to the defendant’s decision to grant an authorisation to the interested party, TWS, for a waste incineration installation. TWS had made its application in July 2000 under the pollution control regime established by the Environmental Protection Act 1990. The regime included the Environmental Protection (Prescribed Processes and Substances) Regulations 1991, which described, in the Schedule, the processes for which authorisation was required. However, by the time that authorisation was granted in April 2001, a new regime had come into force by virtue of the Pollution Prevention and Control (England and Wales) Regulations 2000.
Paragraph 24 of Schedule 10 to the regulations provided for the transition between the two regimes by the insertion of para 3A into the 1991 Regulations. Paragraph 3A stated that where a process required authorisation under the 2000 Regulations, that process was not to be taken to fall within any description in the Schedule to the 1991 Regulations from the date upon which the permit was required.
The claimants brought proceedings for judicial review of the authorisation granted to TWS on the ground, inter alia, that once the 2000 Regulations came into force, the defendant no longer had the power to grant an authorisation under the old procedure. They relied upon the wording of para 3A of the 1991 Regulations.
The defendant contended that it had no choice but to grant the authorisation sought on the grounds that it had been under a duty to “either grant the authorisation… or refuse it” by virtue of section 6(3) of the 1990 Act, and TWS had satisfied the requirements for granting authorisation under the 1990 Act.
Held: The claim was dismissed.
The draftsman of the 2000 Regulations had been faced with a difficulty in framing transitional arrangements that would meet all situations, and the solution to the problem in the circumstances of this case was not entirely clear. However, given that section 6(3) of the 1990 Act had not yet been repealed, it remained the governing statutory provision for applications made under the 1990 Act regime at a time when that regime was still current. It followed that the defendant had had the power to grant the authorisation in question, although it remained the case that a further authorisation would be required before the installation could be put into operation.
Robert McCracken (instructed by W Davies & Son, of Woking) appeared for the claimants; Kassie Smith (instructed by the solicitor to the Environment Agency) appeared for the defendant; the interested party did not appear and was not represented.
Sally Dobson, barrister
