West Law Report

R (EDWARDS & ANR) v THE ENVIRONMENT AGENCY & OTHERS

Last updated: 8:21 PM BST 30/04/2008
House of Lords

Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance

April 16, 2008

Administrative decision-making – Common law rights – Consultation – Directives Environmental impact assessments – Factories – Fuel – Implementation – Incineration – Integrated pollution prevention and control – Statutory interpretation Change to existing project – Duty of environment agency to make information available to public – Pollution Prevention and Control (England and Wales) Regulations 2000 – Reg. 11(2)(b) Pollution Prevention and Control (England and Wales) Regulations 2000 – Council Directive 96/61 1996 – Annex II Directive 85/337 on the Environmental Impact Assessment of Public and Private Projects 1985 – Annex I directive 85/337 on the Environmental Impact Assessment of Public and Private Projects 1985 – Directive 85/337 1985 – Art. 4(1) Directive 85/337 on the Environmental Impact Assessment of Public and Private Projects 1985 – Art. 2.10(b) Council Directive 96/61 1996 – Art. 1 Directive 85/337 on the Environmental Impact Assessment of Public and Private Projects 1985

FACTS

The appellants (E), residents living close to a cement works, appealed against a decision ([2006] EWCA Civ 877) that the respondent Agency had not been required to consider obtaining an environmental impact assessment in response to a proposal by the plant to burn waste tyres as partial substitute for the use of conventional fuel.

The cement works (R) had applied for a permit under the Pollution Prevention and Control (England and Wales) Regulations 2000 to replace a permit granted under earlier legislation. Part of its proposal had been to ask permission to replace some of the traditional fuel with shredded tyres and the Agency had accepted the proposal. E had applied for judicial review of the decision and the issue for determination had evolved within the proceedings to become a complaint that the Agency’s grant of the permit to R was vitiated by procedural irregularity because the Agency had not properly discharged its statutory obligation of public consultation before deciding whether or not R’s proposal would cause significant pollution within the meaning of reg. 11(2)(b). E maintained that

  1. (1) the Agency had been required by Council Directive 96/61 and by the Regulations to perform public consultation, as well as having a common law duty to do so, as a body exercising public functions;
  2. (2) the effect of R’s proposal had been to change the project from one falling within Directive 85/337 Annex II:(5):(b) to one falling within Annex I:(10) of the Directive so that an environmental impact assessment was a mandatory requirement.

ISSUES

(1) Whether the Agency had been required by Council Directive 96/61 and by the Regulations to perform public consultation, as well as having a common law duty to do so, as a body exercising public functions.

(2) Whether the effect of R’s proposal had been to change the project from one falling within Directive 85/337 Annex II:(5):(b) to one falling within Annex I:(10) of the Directive so that an environmental impact assessment was a mandatory requirement

HELD (appeal dismissed)

(1) A claim based on Council Directive 96/61 had to fail because the Directive made it clear that the duty to make information available to the public applied only to new installations or where there were substantial changes to an operation. There was no dispute that the plant was an existing installation and there was an unchallenged finding of fact that the only change in operation proposed by R’s application, namely the use of tyres, would not have “significant negative effects on human beings or the environment” within the meaning of art. 2.10(b) of the Directive. Nor had there been a breach of any express or implied terms of the Regulations, R (on the application of Blewett) v Derbyshire CC [2003] EWHC 2775 (Admin), [2004] Env LR 29 approved.

The publicity requirements of the Regulations went further than Directive 96/61 because they applied to existing installations and required publication of formal supplementary inquiries and the information obtained in response to such inquiries. There was no reason to imply a further requirement into the Regulations which excluded informal communication between an applicant and the Agency. It would be extremely inhibiting if the Agency ran the risk that its decision could be vitiated because an applicant was held to have communicated information that ought to have been the subject of a formal enquiry. The courts below had been right to exercise their discretion against quashing the permit on the ground of procedural unfairness. Directive 96/61 specified what information should be made available to the public and the Regulations effected and extended those requirements. It was not for the courts to impose a broader duty. If the Agency had to disclose its internal working documents for further public consultation, there was no reason why the consultation process should ever come to an end.

(2) R’s proposal did not bring the project within the scope of Annex I of Directive 85/337, and therefore an environmental impact assessment had not been necessary. The definition of “project” in art. 1 of that Directive appeared to contemplate the construction of something new, not a change to an existing installation, Commission of the European Communities v Italy (C486/04) (2007) Env LR D10 ECJ considered. Changes to existing projects were dealt with elsewhere in the Directive. The Annexes, generally, described projects by reference to their purpose rather than the use to which they might be put, and the size of an installation was described by reference to its capacity rather than the amount of waste incinerated. The paragraphs of Directive 85/337 cited by E were concerned with the creation of an installation of a particular size for a particular purpose rather than with the quantity of waste from time to time incinerated.

David Wolfe, Tessa Hetherington (instructed by Richard Buxton, Cambridge) for the appellants. David Elvin QC and Kassie Smith (instructed by in-house solicitor, Treasury Solicitor) for the respondents. Stephen Tromans and Colin Thomann (instructed by in-house solicitor) for the interveners.

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