Town and country planning – Environment – Environmental permit – Respondent environment agency granting environmental permit for waste incineration plant – Appellant objector applying for judicial review – High Court dismissing application – Appellant appealing – Whether scientific error in information supporting application invalidating decision to grant permit – Appeal dismissed
The first respondent Environment Agency granted an environmental permit to the second respondent, under reg 13 of the Environmental Permitting (England and Wales) Regulations 2016, for the operation of a waste incineration plant at Rookery Pit, Stewartby in Bedfordshire. The appellant was a local action group opposed to the development. A development consent order was granted for the proposal as a “nationally significant infrastructure project” under the Planning Act 2008.
The appellant applied for judicial review of the decision to grant the permit contending that it had been issued unlawfully, on a factually incorrect and scientifically erroneous basis, in that the measures adopted for dealing with fugitive emissions from incinerator bottom ash (IBA) would prevent the discharge of potentially harmful heavy metals, in breach of article 46(5) of Directive 2010/75/EU (the Industrial Emissions Directive) and the 2016 Regulations.
The appellant contended that there was a risk of the unmonitored discharge of toxic dissolved heavy metals into surface water draining to Stewartby Lake, about 500 metres to the north-west of the site. The lake was within a nitrate vulnerable zone, and was connected to the River Ouse system, which fed the supply of public drinking water. The factual error was said to be in the supporting information document, which was provided to the first respondent with the application for the permit.
The respondents conceded the error in the supporting information document, but maintained that it had not affected the decision to issue the permit, which would prevent the discharge of dissolved heavy metals into the surface water drainage system. The High Court accepted that argument: [2018] EWHC 2962 (Admin). The appellant appealed.
Held: The appeal was dismissed
(1) In interpreting an environmental permit, the court concentrated on the words used in framing the permit, read objectively and in their full context, without straining their natural and ordinary meaning beyond what the context required, and bearing in mind that a breach of a permit condition could lead to criminal sanction. In the present case, there was nothing in the permit to suggest that the error in the supporting information document affected the decision. The environmental permit, in its own terms, was disproof of the argument that the error in the supporting information document invalidated the first respondent’s assessment of the permit application on its merits, or had the effect of producing a breach of the obligation in article 46(5) of the Industrial Emissions Directive. Both the environmental permit and the decision document displayed the first respondent’s grasp of the relevant science. The reality was that when it made its decision, the first respondent knew how the proposed facility was going to operate, what measures would be put in place to prevent polluting emissions, and how those measures would work. Equally clear was that it was conscious of, and complied with, the obligations in article 46(5): R (on the application of Squire) v Shropshire Council [2019] EWCA Civ 888; [2019] EGLR 26 followed.
(2) The judge had not misdirected herself on the law relating to mistake of fact. A mistake of fact giving rise to unfairness was a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties shared an interest in co-operating to achieve the correct result. There must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. The appellant’s complaint went to a mistake made by the second appellant in its application for the environmental permit, not a mistake made by the first respondent in determining that application. The fact that the error itself was clear and was not denied by the respondents was immaterial. It could not be said that the mistake in the supporting information document played any part in the first respondent’s reasoning.
(3) The first respondent’s role as regulator required it to bring its own scientific and technical expertise to bear on the decisions it made under the 2016 Regulations. Judging the likely polluting effects of a waste incineration plant, and the reliability of the operating techniques designed to prevent such pollution, was a familiar task, which called for that expertise to be used. Unless there was clear evidence revealing a failure of such expertise, the court was entitled to conclude there was no such failure. The contemporaneous documents showed that the first respondent’s decision was not impaired by any error of fact or science. In the absence of any such flaw, the scientific integrity of the first respondent’s assessment was not for the court to explore beyond the normal scope of a public law challenge.
(4) The judge had not erred by failing to investigate the need for a dust management plan. Whether the requirements of the Industrial Emissions Directive, and in particular article 46(5), made it necessary to require the second respondent to commit itself to those measures, as well as those described in the supporting information document, and whether, taken as whole, the proposed operating regime, including the dust management plan, was acceptable, were questions for the first respondent. As the first respondent clearly accepted, the measures described in the dust management plan complemented those for preventing polluting emissions described in the supporting information document. It had satisfied itself that the proposed measures corresponded to best available techniques, were practicable and could be made the subject of +enforceable conditions in the environmental permit.
(5) The court had to afford a decision-maker an enhanced margin of appreciation in cases involving scientific, technical and predictive assessments. In the present case, the judge had not misapplied that principle. In concluding that the first respondent had exercised its own judgment lawfully, the judge did not need to rely on the jurisprudence establishing for statutory regulators an enhanced margin of appreciation. The judge had found that the only real error was in the text of the supporting information document and that that had not impaired the first respondent’s exercise of its expert judgment when issuing the permit: Levy v Environment Agency [2003] Env LR 11 and R (on the application of Mott) v Environment Agency [2016] 1 WLR 4338 applied.
Daniel Stedman Jones (instructed by Richard Buxton Solicitors) appeared for the appellant; Guy Williams (instructed by the Environment Agency) appeared for the first respondent; Richard Harwood QC (instructed by Hogan Lovells International LLP) appeared for the second respondent.
Eileen O’Grady, barrister
