Pollution Prevention and Control (England and Wales) Regulations 2000 – Application for permit – Cement works – Proposal to burn waste vehicle tyres as fuel – Consultation – Permit granted – Whether proposals falling within EIA Directive such that environmental impact assessment required – Whether unfairness in consultation procedure – Appeal dismissed
The operator of a cement works applied to the first respondent agency for a permit authorising the operation of the plant and the use of waste vehicle tyres as fuel, to be burnt in a high-temperature kiln. The application was made under the Pollution Prevention and Control (England and Wales) Regulations 2000, which implemented Council Directive 96/61/EC on integrated pollution prevention and control (the IPPC Directive). The first respondent granted the permit after carrying out a consultation exercise and considering reports from in-house experts, including two specialist reports prepared by its air-quality modelling and assessment unit on the basis of computer modelling. The reports were not disclosed to consultees.
The appellants brought judicial review proceedings, seeking to quash the grant of the permit on the grounds that: (i) the operator proposed an “installation” for the disposal or incineration of waste within the meaning of item 10 of Annex I or para 11(b) of Annex II to Council Directive 85/337/EEC (the EIA Directive), which constituted a “project” in respect of which environmental impact assessment (EIA) requirements applied; and (ii) the consultation process had been procedurally unfair. On the latter point, the appellants relied upon the failure to disclose the expert reports, which, they argued, would have shown the permit application to be incomplete owing to the absence of certain emissions information; they also argued that the first respondent had impermissibly taken into account information supplied by the operator pursuant to an informal request rather than by formal means.
The claim was dismissed both at first instance and on an appeal. Both courts rejected the EIA Directive point and held, as to unfairness, that although the internal reports ought to have been disclosed it would be disproportionate to quash the permit in the circumstances of the case. The appellants appealed.
Held: The appeal was dismissed.
Per Lord Hoffmann, Lord Hope and Lord Walker:
(1) It was primarily for the regulator to judge the adequacy of an applicant’s information. Any gap in the information supplied concerning the environmental effects of the emissions was not so manifest as to render unreasonable its conclusion that the application was valid. In an imperfect world, environmental information would often be deficient in some respect and the 2000 Regulations did not impose unrealistic expectations: R (on the application of Blewett) v Derbyshire Waste Ltd [2006] EWCA Civ 1508; [2005] 1 PLR 54 considered. Neither did they require computer modelling of the environmental effects and the first respondent had not regarded the failure ton include actual emissions in the modelling as a fatal defect.
(2) It was not possible to imply into the 2000 Regulations any restriction upon the information that the first respondent could obtain by informal enquiry. Although the application had to contain the statutory minimum of information, that was not inconsistent with the first respondent being able to ask for more data if it found it necessary or useful in determining the application. Although para 4 of Schedule 4 provided for formal requests for information, the IPPC Directive did not differentiate between formal and informal methods of obtaining supplementary information and informal enquiries were not inconsistent with its requirements. The directive did not require the results of such inquiries to be published, and the publicity requirements of the 2000 Regulations, which went further than those of the directive, required publication only of formal supplementary enquiries and the information thereby obtained. It was unnecessary to imply a further requirement excluding informal communications between the applicant and the first respondent. In the instant case, no express or implied term of the 2000 Regulations had been breached.
(3) Although the finding of the courts below that the failure to disclose the reports was a procedural irregularity was not challenged, it was doubtful whether the first respondent had been obliged to disclose documents that formed part of its internal decision-making process, prepared after a lengthy public consultation. The IPPC Directive and the 2000 Regulations specified with some precision what information should be made available to the public and it was not for the courts to impose a broader duty. In any event, the courts below had correctly found that such irregularity as may have existed did not require the quashing of the permit.
(4) It was doubtful whether a change of fuel in an existing installation could be a “project” requiring an EIA within the meaning of the EIA Directive. The relevant provisions of the directive were concerned with the creation of an installation of a particular size and for a particular purpose, rather than with the quantity of waste from time to time incinerated. If the introduction of tyres had to be accommodated within the EIA Directive, it would most naturally fall under the heading of a “change” in a project within the meaning of para 13 of Annex II. However it was unnecessary to decide the point, since even if the directive applied its requirements had been complied with. The application contained sufficient information on the proposal to burn tyres to satisfy the requirements of an environmental statement for the purposes of the EIA Directive.
Per Lord Brown and Lord Mance:
(1) Although nothing in the 2000 Regulations expressly to prevent the first respondent from informally obtaining information from an application, the requirement under para 1(1) of Schedule 9 to publish “all particulars of any application” was not confined to all particulars in the application, and should be read as covering information informally obtained from the applicant relating to any of the matters in para 1(1)(g) or (h). On that basis, the 2000 Regulations had been breached, although the IPPC Directive had not. However, it was not a breach in respect of which, as a matter of discretion, any remedy would be appropriate in the instant case.
(2) Although a change to tyre burning would probably bring the project within para 10 of Annex I of the EIA Directive, the information supplied by the applicant satisfied the requirements of the directive.
David Wolfe and Tessa Hetherington (instructed by Richard Buxton, of Cambridge) appeared for the appellants; David Elvin QC and Kassie Smith (instructed by the Treasury Solicitor and the legal department of the Environment Agency) appeared for the respondents; Stephen Tromans and Colin Thomann (instructed by the legal department of Cemex UK Cement Ltd) appeared for the operator, as intervener.
Sally Dobson, barrister
