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.

HARROW LBC v IBRAHIM & ANR

Last updated: 8:21 PM BST 30/04/2008
Court of Appeal (Civil Division)

Rix, Jacob LJJ, Forbes J

April 21, 2008

Children – EC law – Homelessness – Local authorities’ powers and duties – Right to education – Rights of entry and residence – Workers – Retention of right of residence by family members following death or departure of European Union citizen – Entitlement to housing assistance – Self-sufficiency – Primary carer – Immigration (European Economic Area) Regulations 2006 – Art. 12 Regulation 1612/68 on Workers Freedom of Movement – Directive 2004/38 on Free Movement for EU Citizens and their Families 2004 – Art. 10 Regulation 1612/68 on Workers Freedom of Movement – Art. 7 Directive 2004/38 on Free Movement for EU Citizens and their Families 2004 – Art. 12 Directive 2004/38 on Free Movement for EU Citizens and their Families 2004

FACTS

The appellant local authority appealed against a decision that the respondent (S) and her school age children had the right to reside in the United Kingdom and were accordingly eligible for housing assistance. S was a Somali national. She was married to but separated from a Danish citizen (D) who had worked in the UK but had since left the UK and returned and had ceased to be a qualified person under the Immigration (European Economic Area) Regulations 2006 with a right to reside in the UK. S had come to the UK with the permission of the immigration authorities in order to join D.

They had four children who were Danish citizens. The three older children came to the UK with S and the fourth child had been born in the UK. The two eldest children had started in state education shortly after their arrival in the UK and remained in such education. S was not self-sufficient and relied on means-tested benefits. She had applied to the local authority for homelessness assistance for herself and her children. The local authority found S ineligible for housing assistance since neither she nor D were exercising a Community law right to reside in the UK and she was therefore liable to immigration control.

S submitted that she was entitled to remain in the UK by reason of Regulation 1612/68 art. 12 taken together with the decision of the European Court of Justice in Baumbast v Secretary of State for the Home Department (C413/99) [2002] ECR I-7091 ECJ. The local authority argued that S had to bring herself within the subsequent codification of the right of residence in Directive 2004/38 and the corresponding provisions of the 2006 Regulations and that she could not do so because D had ceased to be a worker before his departure from the UK and had failed to obtain a new right of residence on his return, and that Baumbast was distinguishable because the family in that case was self-sufficient.

ISSUE

Whether S and her school-age children had the right to reside in the United Kingdom and were accordingly eligible for housing assistance.

HELD (Questions referred to ECJ)

The issues raised by the appeal were not acte clair and needed to be referred to the ECJ. The court would be inclined to read Baumbast as saying that the implied right of residence in order to vindicate the child’s right of access to education arose out of art. 10 and art. 12 of the 1968 Regulation.

However art.10 had been repealed and replaced by art. 7 of the 2004 Directive. It was not obvious that the full rationale of Baumbast survived, and it was arguable that its modern rationale had to take its source from a combination of art.12 of the 1968 Regulation taken together with the 2004 Directive. That was supported by the references in the 2004 Directive’s preamble to that Directive as a codification, following review, of that area of Community law, and to the need for a single legislative act. Article 12 of the 2004 Directive was the express source of the retention of the right of residence by family members in the event of death or departure of the European Union citizen. The case of departure was problematical and the notion of departure appeared to be in essence new to the 2004 Directive. The court was uncertain as to the significance of the concept of departure.

Also the first two questions in Baumbast had been answered by the ECJ without reference to the principle of self-sufficiency but the answers were given against the background of the fact that the Baumbast family were self-sufficient. The court was sceptical as to whether art.12 of the 1968 Regulation and Baumbast in the light of the 2004 Directive did give the children and primary carer of a worker who had stopped working a right to reside in the host Member State to complete an education which had relatively recently begun and to do so despite lack of self-sufficiency, and however briefly the worker had resided as a worker in the host Member State. The court would refer to the ECJ questions intended to determine whether S and her children enjoyed a right of residence only if they complied with the conditions set out in the 2004 Directive or whether they enjoyed a right to reside derived from art. 12 of the 1968 Regulation and as to the significance of the question of self-sufficiency.

Kelvin Rutledge and Sian Davies (instructed by in-house solicitor) for the appellant. Nicola Rogers (instructed by Shelter Legal Services) for the first respondent. Clive Lewis QC and Elisabeth Laing QC (instructed by Treasury Solicitor) for the second respondent.