Integrated Pollution Prevention and Control Directive — Permit for glassworks — Condition as to emission levels — Permit quashed — Whether compliance with environmental quality standards sufficient for compliance with directive — Appeal dismissed
The appellant owned a large glass manufacturing plant on the outskirts of Chester. The first respondent council granted a permit for the plant under the Pollution Prevention and Control (England and Wales) Regulations 2000, attaching various conditions, including restrictions as to the level of nitrogen oxide emissions. The permit was granted by the first respondent’s chief executive, following an informal meeting with the council officer responsible for such matters, and in purported exercise of the delegated power under r 29 of the first respondent’s procedure rules. The power under r 29 was exercisable where a decision, nominally to be made by the first respondent, depended largely upon factual or technical matters so that there was no real discretion.
The second respondent succeeded in an action to quash the permit, contending that the specified emission levels did not comply with the requirement under the Integrated Pollution Prevention and Control Directive (96/61) (IPPC Directive) to ensure a high level of protection for the environment. The judge found that the terms of the permit did not comply with the directive. He emphasised the need to reduce emissions as far as possible or to an acceptable minimum, and criticised the first respondent’s failure to consider alternative plant configurations, such as a different type of furnace, that could have achieved better results in that respect. He further found that the grant of the permit had not been a legitimate exercise of the r 29 power.
On appeal against that decision, the appellant contended that: (i) there was no requirement to reduce emissions “as far as possible”, and a high level of environmental protection should be taken as having been achieved where the environmental quality standards (EQS) provided for under other parts of the EC environmental regime were met; and (ii) the first respondent had no power to consider alternative configurations, such as different furnace types, when dealing with a permit application, but had to take as a given the configuration chosen by the applicant.
Held: The appeal was dismissed.
(1) The EC environmental regime made a central distinction between general requirements of air quality and emissions on the one hand, and, on the other, the requirements that applied to particular operations that were likely to cause pollution. EQS levels were general standards for an area, to which all inhabitants contributed, and the appellant could not take advantage of non-polluting citizens by arguing that EQS levels to which all contributed had not yet been reached. Moreover, EQS levels were minimum requirements, not a mark of EC approval; a requirement for a high degree of environmental protection did not begin and end with them. The whole assumption of the environmental regime was that the requirements of the IPPC Directive were something different from, and more stringent than, EQS. The judge had correctly attached importance to the need to reduce emissions as far as possible.
(2) When applying the IPPC Directive, it was necessary to consider the best available technique, assessed with regard to, inter alia, the technical characteristics of an installation: see Articles 3 and 2(11). It would be difficult for a regulator to do that if it were not permitted to consider alternatives, and, accordingly, there was no substance in the appellant’s argument on that point.
(3) Rule 29 of the first respondent’s procedure rules applied to minor details, not major issues like the grant of the permit. The grant of a permit was not confined to largely factual and technical matters, but required the carrying out of a balancing exercise. It was unsatisfactory for a permit to be granted with such a lack of scrutiny and level of informality as there had been in the instant case. The fact that the decision had been taken by someone who was not authorised to do so was, in itself, a sufficient ground to quash the permit.
Richard Drabble QC and Reuben Taylor (instructed by CMS Cameron McKenna LLP) appeared for the appellant; Stephen Tromans (instructed by Eversheds, of Birmingham) appeared for the first respondent; Richard Gordon QC and James Pereira (instructed by DLA Piper Rudnick Gray Cary, of Leeds) appeared for the second respondent.
Sally Dobson, barrister
