David Edwards Lilian Pallikaropoulos (Appellants) 1) The Environment Agency and Others (Respondents) Cemex Uk Cement Ltd (Formerly Rugby Ltd) (Interested Party)

JurisdictionEngland & Wales
JudgeLORD JUSTICE AULD
Judgment Date19 July 2006
Neutral Citation[2006] EWCA Civ 877,[2006] EWCA Civ 1138
Docket NumberC1/2005/1014,Case No: C5/2005/1014
CourtCourt of Appeal (Civil Division)
Date19 July 2006
The Queen on The Application of Edwards
And Pallikaropoulos
Claimant/Appellants
and
The Environment Agency & Ors
Defendant/Respondent

[2006] EWCA Civ 1138

Before:

Lord Justice Auld

Lord Justice Rix

Lord Justice Maurice Kay

C1/2005/1014

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT

MR JUSTICE LINDSAY)

Royal Courts of Justice

Strand

London, WC2

THE APPELLANTS DID NOT APPEAR AND WERE NOT REPRESENTED.

THE RESPONDENTS DID NOT APPEAR AND WERE NOT REPRESENTED.

LORD JUSTICE AULD
1

On 26 June 2006 the court dismissed the appellant's appeal and dismissed the respondent's appeal on the Respondent's Notice, and reserved all consequential orders for consideration after receipt of written and, if required by any of the parties, oral submissions. All parties have now made written submissions to the court, and the second appellant and the respondents have notified the court that they are content for it to rule on those submissions without further attendance by them. The first appellant has been notified of the hearing today but has not attended, nor has he sought to make any oral submissions to the court.

2

In the circumstances the court, having given full consideration to the written submissions, including that of the first appellant, makes the following order:

1. The respondents shall have 70 per cent of their costs of the proceedings to be paid on the standard basis by the appellants and/or the Legal Services Commission on the following terms:

a) Seventy per cent of the respondent's costs incurred up to 1.00pm on 8 February 2006 to be paid by the first appellant and/or the Legal Services Commission. The liability to pay and the amount if any of any costs to be paid by the first appellant to be determined by a costs judge upon application made within three months of the date of this order pursuant to Regulation 10 of the Community Legal Services Costs Regulations 2000;

b) Seventy per cent of the respondent's costs incurred from 1.00pm on 8 February 2006 to be paid by the first appellant and/or the Legal Services Commission and by the second appellant in equal shares, the liability of the Legal Services Commission to pay those costs and the amount if any to be paid by the first appellant to be determined by a costs judge on like terms as those relating to the respondent's costs incurred before 1.00pm on 8 February 2006, and the costs payable by the second appellant not to exceed £2,000.

2. No order in respect of the interested parties' costs.

3. The second appellant's application for permission to appeal to the House of Lords is refused.

Order: As detailed in judgment.

Between:
David Edwards
and
Lilian Pallikaropoulos
Appellants
and
1) The Environment Agency
2) The First Secretary of State
3) Secretary of State for The Environment Food and Rural Affairs
Respondents
and
Cemex Uk Cement Limited (Formerly Rugby Limited)
Interested Party

[2006] EWCA Civ 877

Before:

The Right Honourable Lord Justice Auld

The Right Honourable Lord Justice Rix and

The Right Honourable Lord Justice Maurice Kay

Case No: C5/2005/1014

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

THE HONOURABLE MR JUSTICE LINDSAY

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr David Wolfe and Ms Tessa Hetherington (instructed by Richard Buxton) for the Appellants

Mr David Elvin QC and Ms Kassie Smith (instructed by The Environment Agency & The Treasury Solicitor) for the Respondent

Mr Nigel Pleming QC and Mr Stephen Tromans (instructed by Rugby Ltd Legal Department) for the Interested Party

Auld LJ:

1

This is an appeal by Mr David Edwards and Mrs Lillian Pallikaropoulos, the nominal claimants and appellants on behalf of a large number of residents of Rugby, against the refusal by Lindsay J on 19 th April 2005, in the exercise of his discretion, of relief in judicial review proceedings to quash a conditional permit granted by the Environment Agency ("the Agency"), the first Respondent, to Rugby Limited, now Cemex UK Cement Ltd, the Interested Party, pursuant to regulation 10 of the Pollution Prevention and Control (England and Wales) Regulations 2000 (SI 2000/1973) ("the PPC Regulations") for the continued operation of its cement plant in Rugby, including, as a new proposal, the burning of waste tyres as a partial substitute for conventional fuel in the kiln at the plant. One of the conditions of the permit was that it was to be subject to completion of a successful trial of tyre burning.

The facts

2

In 1996 Warwickshire County Council ("the Council") granted Rugby Ltd planning permission to build a new cement plant with a single kiln on the edge of Rugby to replace a smaller kiln on the site and others operated by it. As part of the process leading to the grant of that permission Rugby Ltd had also submitted to the Council an environmental statement pursuant to the requirements of the environmental impact assessment regime of the Waste Framework Directive (75/442/EEC), as amended, the adequacy of which was not challenged at the time. It provided information in general terms about likely emissions from the proposed plant, but no detailed assessment of them or of their environmental impact, relying upon the integrated pollution control ("IPC") regulatory regime then in force under Part I of the Environmental Protection Act 1990 to which it would become subject on seeking and obtaining authorisation to operate the plant when built. In 1999 the Agency authorised Rugby Ltd to operate the plant under that regime and set conditions to ensure the use of best available techniques without excessive cost to prevent or reduce to a minimum the release of prescribed substances into the environment, including emissions of dust from around the site as well as emissions from the main stack (chimney) serving its kiln.

3

By 2000 Rugby Ltd had built the plant, and in February of that year began to operate it pursuant to the IPC authorisation. However, in the same year a new statutory regime ("the PPC regime") was introduced by the PPC Regulations in implementation of the EU Integrated Pollution Prevention and Control Directive 96/61/EC ("the IPPC Directive"), introducing stricter substantive and procedural controls than those governing the IPC regime. In order to continue its operation of the cement works, Rugby Ltd had, therefore, to apply now to the Agency for a permit under the new regime. It did so on 21 st August 2001, but also sought permission to continue its operation in one respect in a different way from before and permitted under the IPC authorisation, namely to burn in the plant's kiln waste tyres in partial substitution for conventional fuels then used.

4

Pursuant to requirements in the PPC Regulations, to which I shall return, the application included a description of sources of emissions from the main stack from the burning of tyres and conventional fuels. It also included information about emissions of potentially health damaging "particulates" (dust) from low level point sources (referred to as "PM10s" by reference to their maximum diameter of 10 microns and referred to throughout this judgment as "low level emissions of dust"), all the subject of EU and UK environmental control. The application also included incomplete data for and projections of these emissions, and stated that—

"[t]he maximum predicted contribution to ambient concentrations of the particulate matter is insignificant in terms of both the ambient air quality and the assessment criteria."

The application also contained information on the measures proposed to prevent or minimise the emissions.

5

As required by the PPC Regulations, there was public consultation on Rugby Ltd's application, copies of which and its supporting documents were made available to consultees and publicly. In the course of what turned out to be nearly a two year period of consultation, members of the public and various statutory consultees, including local public health bodies, expressed concern about emissions from the plant. The proposal to burn waste tyres as a partial substitute fuel engendered considerable opposition from local Rugby residents, whose concern was directed principally at the likely impact of emissions from the main stack. But there were also a few expressions of concern about the impact of the current emissions of low level dust. The Agency would reflect the main thrust of the public concern in the following passage in paragraph 1.6 of its Decision Document:

"… Almost without exception, the representations received during this consultation focused on the proposed use of tyres as a fuel … much of the emphasis of the consultation related to the potential health effects of the use of tyres at the installation. …"

6

As a result, the Agency sought further information from Rugby Ltd, as it was empowered to do under the PPC Regulations, about emission points, information that Rugby Ltd provided mainly in relation to the main stack. Rugby Ltd's response was also made available to consultees and publicly. The Agency made no further formal request to Rugby Ltd in the course of its public consultation process for information about projected emissions.

7

Because of expressions of concern in the consultation about the likely impact on the environment of the introduction of burning of tyres, and as part of its decision-making exercise, the Agency, in October 2002 asked its Air Quality Monitoring and...

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