Environment – Waste disposal – Nuisance – Claimant company carrying on waste disposal and reclamation activities under licence issued by defendant Environment Agency – Neighbours complaining of noise emanating from site – Defendant serving notice on claimant suspending operations and stating measures to be taken before licence restored – Claimant applying for order quashing notice as failing to specify criteria for compliance and being vague and imprecise – Whether claimant entitled to order sought – Application granted The claimant was the operator of a metal waste disposal and reclamation yard pursuant to an environmental permit issued pursuant to the Environmental Permitting (England & Wales) Regulations 2010. The regulator under that licence was the defendant Environment Agency. Under regulation 37(2), if the regulator considered that the operation of a regulated facility under an environmental permit involved a risk of serious pollution, it might serve a suspension notice on the operator. Regulation 37(4)(a) provided that a notice issued pursuant to regulation 37(2) had to specify: (i) the risk of serious pollution; (ii) the steps to be taken to remove that risk; and (iii) the period within which the steps had to be taken. Following a substantial number of complaints from local residents about noise, the conditions of the permit were varied requiring the claimant to take steps to make emissions from its activities free from noise and vibration at levels likely to cause pollution outside the site. The complaints continued and, in February 2012, the defendant served a notice on the claimant suspending its operations. The notice also stated what the claimant would have to design and implement measures to eliminate the risk of serious pollution from noise before its operations would be permitted again. The claimant sought an order quashing the notice contending, inter alia, that the wording of the notice did not comply with the requirements of regulation 37(4)(a) because it failed to specify what, if any, steps were required to be taken; and/or failed to provide a defined threshold criterion objective that had to be satisfied by the claimant if the notice was to be complied with; and/or was vague and imprecise. Held: The application was granted The true focus had to be on what was required to be stated explicitly in the notice. As a matter of language, a requirement to state explicitly the steps required to be taken to eliminate an identified risk could not sensibly be said to be satisfied by a requirement to design and implement measures to eliminate that risk. What was required for a notice to be compliant with regulation 37(4)(a)(ii) was the identification of either outcomes or criteria that had to be achieved by whatever means the claimant chose to adopt and/or the identification of specific steps that were required to be taken. Regulation 37 imposed on the defendant a mandatory requirement to specify what steps had to be taken in order to remove the risk that triggered the service of the notice. That requirement could have been satisfied by specifying an outcome rather than by reference to steps in the sense of specifying works to be undertaken at the site if that was considered to be a more appropriate way to proceed. However, the defendant was not entitled to require the elimination of a risk of serious pollution without identifying the steps by which that was to be achieved. Accordingly, the claimant was entitled to a quashing order on that ground alone: Sterling Homes v Birmingham City Council [1996] Env LR 121; R v Falmouth and Truro Port Health Authority, ex p South West Water Ltd [2001] QB 445 and R v Secretary of State for the Environment, Transport and the Regions, ex p Premiere Environment Ltd [2000] EGCS 12, [2000] PLSCS 11 considered. The defendant had suggested that this claim was potentially an abuse of process because there was a suitable alternative remedy available in the form of a statutory appeal. The hallmark of an alternative remedy that would normally lead to a refusal to grant relief by way of judicial review was that it was a remedy that was equally effective and convenient. Where the effect of a statutory appeal was that the notice was not suspended pending determination of the appeal, and where, as here, the effect of such a notice was to require all regulated activity governed by the relevant permit to be discontinued and an appeal was likely to take months rather than weeks to be determined, it was difficult to conclude that the existence of a statutory appeal was either equally effective or convenient. The losses caused to the claimant by a suspension in the terms adopted by the defendant in this case would inevitably be substantial and the potential effect on employees at the site even more serious. In addition there was a fundamental issue of law that required resolution as to the degree to which, if at all, the regulations required the specification of the steps to be taken. It was clearly desirable that a ruling on that issue be obtained in early course but a statutory appeal was not the most appropriate method: R v Falmouth and Truro Port Health Authority, ex parte South West Water Limited and R v Hillingdon Borough Council, ex p Royco Homes Ltd [1974] QB 720 considered. Gordon Wignall (instructed by Addleshaws Goddard) appeared for the claimant; Gerry Facenna (instructed by Environment Agency Regional Solicitor) appeared for the defendant. Eileen O’Grady, barrister
R (on the application of European Metal Recycling Ltd) v Environment Agency
Environment – Waste disposal – Nuisance – Claimant company carrying on waste disposal and reclamation activities under licence issued by defendant Environment Agency – Neighbours complaining of noise emanating from site – Defendant serving notice on claimant suspending operations and stating measures to be taken before licence restored – Claimant applying for order quashing notice as failing to specify criteria for compliance and being vague and imprecise – Whether claimant entitled to order sought – Application granted The claimant was the operator of a metal waste disposal and reclamation yard pursuant to an environmental permit issued pursuant to the Environmental Permitting (England & Wales) Regulations 2010. The regulator under that licence was the defendant Environment Agency. Under regulation 37(2), if the regulator considered that the operation of a regulated facility under an environmental permit involved a risk of serious pollution, it might serve a suspension notice on the operator. Regulation 37(4)(a) provided that a notice issued pursuant to regulation 37(2) had to specify: (i) the risk of serious pollution; (ii) the steps to be taken to remove that risk; and (iii) the period within which the steps had to be taken. Following a substantial number of complaints from local residents about noise, the conditions of the permit were varied requiring the claimant to take steps to make emissions from its activities free from noise and vibration at levels likely to cause pollution outside the site. The complaints continued and, in February 2012, the defendant served a notice on the claimant suspending its operations. The notice also stated what the claimant would have to design and implement measures to eliminate the risk of serious pollution from noise before its operations would be permitted again. The claimant sought an order quashing the notice contending, inter alia, that the wording of the notice did not comply with the requirements of regulation 37(4)(a) because it failed to specify what, if any, steps were required to be taken; and/or failed to provide a defined threshold criterion objective that had to be satisfied by the claimant if the notice was to be complied with; and/or was vague and imprecise. Held: The application was granted The true focus had to be on what was required to be stated explicitly in the notice. As a matter of language, a requirement to state explicitly the steps required to be taken to eliminate an identified risk could not sensibly be said to be satisfied by a requirement to design and implement measures to eliminate that risk. What was required for a notice to be compliant with regulation 37(4)(a)(ii) was the identification of either outcomes or criteria that had to be achieved by whatever means the claimant chose to adopt and/or the identification of specific steps that were required to be taken. Regulation 37 imposed on the defendant a mandatory requirement to specify what steps had to be taken in order to remove the risk that triggered the service of the notice. That requirement could have been satisfied by specifying an outcome rather than by reference to steps in the sense of specifying works to be undertaken at the site if that was considered to be a more appropriate way to proceed. However, the defendant was not entitled to require the elimination of a risk of serious pollution without identifying the steps by which that was to be achieved. Accordingly, the claimant was entitled to a quashing order on that ground alone: Sterling Homes v Birmingham City Council [1996] Env LR 121; R v Falmouth and Truro Port Health Authority, ex p South West Water Ltd [2001] QB 445 and R v Secretary of State for the Environment, Transport and the Regions, ex p Premiere Environment Ltd [2000] EGCS 12, [2000] PLSCS 11 considered. The defendant had suggested that this claim was potentially an abuse of process because there was a suitable alternative remedy available in the form of a statutory appeal. The hallmark of an alternative remedy that would normally lead to a refusal to grant relief by way of judicial review was that it was a remedy that was equally effective and convenient. Where the effect of a statutory appeal was that the notice was not suspended pending determination of the appeal, and where, as here, the effect of such a notice was to require all regulated activity governed by the relevant permit to be discontinued and an appeal was likely to take months rather than weeks to be determined, it was difficult to conclude that the existence of a statutory appeal was either equally effective or convenient. The losses caused to the claimant by a suspension in the terms adopted by the defendant in this case would inevitably be substantial and the potential effect on employees at the site even more serious. In addition there was a fundamental issue of law that required resolution as to the degree to which, if at all, the regulations required the specification of the steps to be taken. It was clearly desirable that a ruling on that issue be obtained in early course but a statutory appeal was not the most appropriate method: R v Falmouth and Truro Port Health Authority, ex parte South West Water Limited and R v Hillingdon Borough Council, ex p Royco Homes Ltd [1974] QB 720 considered. Gordon Wignall (instructed by Addleshaws Goddard) appeared for the claimant; Gerry Facenna (instructed by Environment Agency Regional Solicitor) appeared for the defendant. Eileen O’Grady, barrister