Application for permit under Pollution Prevention and Control (England and Wales) Regulations 2000 — First defendant decision maker failing to disclose reports to consultees — Whether procedural unfairness — Whether permit should be quashed — Claim dismissed
The operators of a cement works applied to the first defendant for a permit, under the Pollution Prevention and Control (England and Wales) Regulations 2000, authorising its continued operation and the use of chipped vehicle tyres as fuel. These were to be burnt in a high-temperature kiln. The first defendant 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 claimant brought judicial review proceedings seeking to challenge the grant of the permit on various grounds. He contended, inter alia, that: (i) the site 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, and therefore constituted a project in respect of which the first defendant 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 defendant 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 generally available such advice as it had given itself. It maintained that the reports were no more than advice of that kind and that it had not therefore been obliged to make them available to objectors.
Held: The claim was dismissed.
1. The proposed use of tyres for burning as fuel by the existing cement-making installation did not amount to disposal of waste within the meaning of the directive. The incineration of waste as fuel was not properly to be regarded as waste disposal, as opposed to waste recovery. Accordingly, the first defendant had not been at fault in having failed to consider whether an EIA should have been made.
2. No invariably applicable general proposition obliged a governmental decision-making body, which was under a duty to act fairly in the course of whatever consultation it was required to conduct, to disclose the advice that it had received from its internal advisors in the course of arriving at its decision. Rather, fairness required that objectors should be given sufficient information to enable them to challenge the accuracy of any facts and the validity of any argument that could be seen by the decision maker as likely to influence the decision-making process: Bushell v Secretary of State for the Environment [1981] AC 75 considered. In the present case, the reports should have been disclosed. They had been commissioned with a view to being assessed as part of the first defendant’s consideration of the application. They concerned subjects that were highly specialised, and broke new ground in that they were not merely verifying or testing material in the application itself, or received from consultees, objectors or the public generally. Were they not to be disclosed, others would not know either that they existed or that they were to be taken into account. They raised subjects that were important to an adequate assessment of the application, and their conclusions were not so incontestably correct that consulting upon them could be said to be redundant. Nor would the first defendant have suffered any prejudice if they had been disclosed.
However, the court would exercise its discretion not to quash the permit. European or domestic air requirements had not been breached, and any significant and offensive emissions would attract remedies in public and private nuisance. It would be massively and disproportionately prejudicial to the site operator to oblige the plant to shut down until the operator had mounted and pursued a further application.
David Wolfe (instructed by Richard Buxton, of Cambridge) appeared for the claimant; David Elvin QC and Kassie Smith (instructed by the Treasury Solicitor and the solicitor to the Environment Agency) appeared for the defendants; Stephen Tromans (instructed by the solicitor to Rugby Ltd) appeared for the site operator as an interested party.
Sally Dobson, barrister
