Waste-treatment plants — Pollution Prevention and Control (England and Wales) Regulations 2000 — Permit regime — Whether permit required for intermediate treatment processes — Correct approach to “same site” requirement for directly associated activities — Appeal and cross-appeal dismissed
The appellant was a statutory water undertaker operating waste-water treatment plants in the north-west of England. The respondent asserted that permits were required for six of the plants under the Pollution Prevention and Control (England and Wales) Regulations 2000 (PPC Regulations), implementing the Integrated Pollution Prevention and Control Directive 96/61/EEC (IPPC Directive). Regulation 9(1) provided that a permit was required for an “installation”, defined in regulation 2(1) as a stationary technical unit in which activities listed in Part I of Schedule I were carried out, or any other location on the same site where “directly associated” activities were undertaken. “Directly associated activities” were described as activities with a “technical connection” to those at the main unit.
Four of the six plants treated sludge; the remaining two treated industrial effluent. Of the former, three carried out intermediate treatment of sludge that was to be transported elsewhere for further treatment. The latter were located a few hundred metres from the facilities with whose waste they dealt, namely a brewery and a milk-processing plant, and were connected to those facilities only by a pipeline. The respondent maintained that the sludge plants fell within section 5.3(c) of Part I of Schedule I, which covered waste disposal by treatment that resulted in final compounds or mixtures that were discarded. As to the industrial effluent plants, it contended that they carried out “directly related activities” in connection with the brewery and milk-processing plant respectively.
The appellant sought a declaration that no permits were required for the six plants. The judge found that permits were required for the sludge plants but not for the industrial effluent plants, which, in his view, were not on the “same site” as the relevant stationary technical unit.
The appellant appealed in relation to three of the sludge plants on the basis that they did not result in a final compound or mixture that was discarded by way of disposal. The respondent cross-appealed in respect of the two industrial effluent plants, contending that the “same site” requirement in the PPC Regulations should be read broadly, given the absence of any such requirement in the IPPC Directive.
Held: The appeal and cross-appeal were dismissed.
(1) Treatment processes at intermediate plants were included within the permit regime. The general purpose of the legislation was environmental protection in the course of waste-disposal operations, and the directives indicated that that purpose covered intermediate operations as well as final operations.
(2) The expression “same site” could not be “read down” in the way that the respondent contended. Although the IPPC Directive contained no such requirement, and had therefore been incorrectly transposed into domestic law, that did not mean that the court should give direct effect to the directive and ignore the same-site requirement in the PPC Regulations. The respondent was an arm of the state and the state was responsible for transposing the directive into domestic law. If the directive had been transposed on a basis that was too onerous to the state regulator, it could not take advantage of that mistake.
Per curiam: Given that violation of the permit regime could result in criminal sanctions, it was unsatisfactory that the determination of guilt or innocence might depend upon the court’s apprehension of the phrase “technical connection”, which, although it appeared in a highly specialised context, was not defined in the legislation. It would be unsurprising if the defence were to argue that the phrase was so vague that prosecution was contrary to Article 6 of the European Convention on Human Rights.
Lawrence West and Wendy Othwaite (instructed by Addleshaw Goddard, of Leeds) appeared for the appellant; David Hart QC and Angus McCullough (instructed by the legal department of the Environment Agency) appeared for the respondent.
Sally Dobson, barrister
