Application for permit under Pollution Prevention and Control (England and Wales) Regulations 2000 — First defendant decision maker failing to require environmental impact assessment — Failure to disclose reports to consultees — Whether procedural unfairness — Appeal dismissed
The operators of a cement works applied to the first respondent for a permit, under the Pollution Prevention and Control (England and Wales) Regulations 2000, authorising the operation of the plant and the use of waste vehicle tyres as fuel. These were to be burnt in a high-temperature kiln. The first respondent granted the permit after carrying out a consultation exercise and considering reports from in-house experts, including two specialist reports that had been prepared by its air-quality modelling and assessment unit. The reports were not disclosed to consultees.
The appellants brought a judicial review claim to challenge the grant of the permit on various grounds. They contended, inter alia, that: (i) the operator’s proposals were for an installation for the disposal of waste within the meaning of item 11(b) of Annex II to Council Directive 85/337/EEC (the EIA Directive), and constituted a “project”, as defined in article 1.2, in respect of which the first respondent should have considered the requirement for an environmental impact assessment (EIA); and (ii) the failure to disclose the expert reports amounted to procedural unfairness in the consultation process.
The first respondent contended that, once a consultation had ended, the decision maker was free to advise itself during the course of the decision-making process and was not obliged to reopen consultation, or to make available such advice as it had given itself. It maintained that the internal reports were merely advice of that kind, which it had not been obliged to make available to objectors.
Dismissing the claim, the judge held that the activities at the plant amounted to waste recovery, rather than waste disposal, so that the secretary of state had not been obliged to consider the need for an EIA. On the unfairness point, he held that the internal reports ought to have been disclosed, but that it would be disproportionate to quash the permit in the circumstances of the case because neither European nor domestic air requirements had been breached, the tyre burning would, on its own, have no significant adverse effects upon the environment, and any significant and offensive emissions would attract remedies in public and private nuisance. The appellants appealed.
Held: The appeal was dismissed.
(1) Even if the introduction of tyre-burning in this case could, as representing a change how an installation was operated, constitute a “project” within Article 1.2 of the EIA Directive, it did not fall within “Installations for the disposal of waste” under para 11(b) of Annex II. Nor was it a change or extension of “installations… for the manufacture of cement”, within para 5(b), that might have significant adverse effects upon the environment within para 13. Those were the only two possible candidates for a “project” as listed in the directive. Although the tyres used at the plant amounted to waste for the purposes of the directive, that did not render the plant an installation for the disposal of waste, because the essential purpose and process of the plant was to manufacture cement, and the disposal of waste tyres by incineration was ancillary to that purpose and process: R v Environment Agency, ex parte Gibson (No 2) [1999] Env LR 73 and R (on the application of Lowther), ex parte Durham County Council [2001] EWCA Civ 781; [2001] 3 PLR 83 considered. The critical decision in many cases had to turn upon the particular nature, manner and extent of the use of waste sought to facilitate any manufacturing process, relative to the process itself, and what, if any, significant adverse effects that might have upon the environment. In the instant case, it had been found that tyre burning in itself would have no significant adverse effects upon the environment, and, accordingly, there was nothing to take it beyond an activity that was ancillary to cement manufacturing so as to constitute a discrete project for the disposal of waste or to change the authorised use of cement manufacture in a way that might have significant adverse environmental effects. It followed that the first respondent had not been required to consider an EIA.
(2) A domestic law procedural defect, not contravening EU law or rendering the ensuing decision ultra vires, did not necessarily lead to the quashing of a decision. It had been for the judge to determine in exercising his discretion whether it was necessary or desirable to quash the decision in the interests of justice: R v HM Coroner of Inner London South District, ex parte Douglas-Williams [1999] 1 All ER 344 applied. Given the judge’s findings as to the absence of environmental harm from the plant and the continuous and dynamic nature of the pollution prevention and control regulatory system, enabling assessments to be made on the basis of what was known, rather than what had previously been predicted, it would be pointless to quash the permit merely to enable the public to be consulted on out-of-date data. If consultation on fresh data were sought, that would be publicly available in the review process provided by the 2000 Regulations. Accordingly, there were no grounds for interfering with the judge’s exercise of his discretion.
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 legal department of the Environment Agency) appeared for the first respondent; the second and third respondents did not appear and were not represented.
Sally Dobson, barrister