KOA Walleys Quarry Ltd v The Environment Agency

Introduction

On 28 November 2024 the Environment Agency served a Closure Notice on the Claimant in respect of its site at Walleys Quarry Landfill, Cemetery Road, Silverdale, Newcastle-under-Lyme, Staffordshire (“the Site”), relying upon powers conferred by para 10 of Schedule 10 of the Environmental Permitting (England and Wales) Regulations 2016 (“EPR 2016”).

The Claimant has a statutory right of appeal to the Secretary of State for Transport from the Closure Notice and the Claimant submitted an appeal on 6 December 2024. The appeal has recently been listed for a two-week inquiry in May 2025. The institution of the statutory appeal does not have the effect of staying or suspending the Closure Notice: regulation 31(7) of the EPR 2016.

This claim for judicial review, which also relates to the Closure Notice decision, was filed on 23 December 2024. By an application notice also filed on 23 December 2024, the Claimant seeks interim relief in the form of an order staying the Closure Notice pending the outcome of the statutory appeal. The application is made on the basis that a stay is urgently required as otherwise the Closure Notice will cause significant financial difficulties for the Claimant as it is projected to become cashflow insolvent by the end of February 2025 and its insolvency will render the exercise of its statutory appeal rights meaningless, thereby infringing its rights under Article 6 of the European Convention on Human Rights (“ECHR”).

The application for judicial review relies upon three grounds. In summary they are that:

i) The Defendant acted unlawfully in issuing the Closure Notice including Step 1 of Stage 1 of Schedule 2 of the Notice (“Step 1”), which requires the Claimant to “cease accepting waste and do not recommence the acceptance of waste for disposal or recovery at the landfill”. The inclusion of this requirement, it is said, was outside the lawful ambit of the power in para 10, Schedule 10 of the EPR 2016, under which the Defendant purported to be acting (“Ground 1”);

ii) The imposition of Step 1 deprived the Claimant of important procedural safeguards that would apply if the Defendant had instead issued a revocation notice in respect of its environmental permit, in particular as the effect of a revocation is suspended pending the outcome of a statutory appeal. Requiring the Claimant to cease its landfill operation by way of Step 1 is a revocation in all but name and an outcome that can only be achieved by the revocation process (“Ground 2”); and

iii) The Defendant's approach to the service of the Closure Notice was procedurally unfair as the Claimant was not provided with an opportunity to make representations or to comment on the steps contained in this Notice. This is particularly significant, it is said, in relation to the inclusion of Step 1, given the operational, environmental and financial consequences for the Claimant of imposing the immediate cessation of waste acceptance at the Site (“Ground 3”).

As matters stand, the stay is the only relief sought in the claim form. However, during the course of oral argument, Mr Watson KC indicated that the Claimant would also be seeking an order quashing at least Step 1 of the Closure Notice if the claim proceeded to a substantive hearing.

By order of 7 January 2025, Mould J transferred the judicial review claim to the Planning Court and classified it as a significant Planning Court claim pursuant to CPR PD54D.

By order of 8 January 2025, Chamberlain J directed that the application for interim relief was to be listed for an oral hearing in the week-commencing 27 January 2025, with a time estimate of 3 hours. The application was duly listed for 29 January 2025.

The Defendant filed Summary Grounds of Defence dated 23 January 2024, resisting the claim. The Defendant also disputes the Claimant's entitlement to interim relief. The Defendant accepts that the Court has jurisdiction to grant interim relief of the kind sought but contends that the strict and established requirements for the grant of such relief are not met in this instance.

The background to the Closure Notice, from the Defendant's perspective, is that the operation of the Site has been the cause of prolonged and heightened levels of hydrogen sulphide (“H2S”) emissions since late 2020 and these emissions have significantly affected the community surrounding the Site and continue to do so. Despite earlier regulatory action by the Defendant, the Claimant has not taken necessary measures to reduce the fugitive emissions to an acceptable level and, in the circumstances, the Defendant considered that service of the Closure Notice was justified and appropriate.

Mr Watson contended that the Court should also determine the question of permission to apply for judicial review. Mr Lewis KC was neutral on this point. As I heard fairly full submissions as to the arguability of the Claimant's grounds, I consider that I am well placed to also address the issue of permission and will do so in this judgment.

A document bundle prepared for this hearing comprised (with recent additions) almost 700 pages. Skeleton arguments were filed in accordance with Chamberlain J's directions.

The Claimant relies upon the following evidence:

i) A witness statement from Jon Clewes, the Claimant's Managing Director, dated 23 December 2024 (“Clewes 1”);

ii) Witness statements from Stephen Lyon, the Chief Financial Officer of Red Industries and, until 3 October 2024, a director of the Claimant, dated 23 December 2024 (“Lyon 1”) and 27 January 2025 (“Lyon 2”);

iii) A witness statement from Aimie Farmer, a Senior Associate at the Claimant's solicitors, dated 20 December 2024 (“Farmer 1”);

iv) An expert report from Leslie Heasman, the Managing Director and a Principal Environmental Chemist at MJ Carter Associates, dated 23 December 2024 (“the Heasman report”);

v) An expert report from Peter Dilworth, a Chartered Civil Engineer with Egniol Consulting Limited, dated 22 December 2024 (“the Dilworth report”);

vi) An expert report from Michael Denny, the Managing Director of Alvarez & Marsal Restructuring, dated 23 December 2024 (“the Denny report”); and

vii) The CTEH report dated 24 October 2024.

The Defendant relies upon:

i) A witness statement from Nicola Ingrey dated 23 January 2025 (“Ingrey 1”);

ii) A witness statement from Steven Roberts dated 23 January 2025 (“Roberts 1”);

iii) A witness statement from Christopher Lowe, a Senior Air Quality Adviser and Team Leader in the National Odour Team in the Chief Regulator's Group at the Environment Agency, dated 23 January 2025 (“Lowe 1”); and

iv) An expert report from Campbell Jackson, a Chartered Accountant and a partner in the Forensic & Integrity service department of Ernst & Young LLP, dated 23 January 2025 (“the Jackson report”).

The Defendant made an application dated 23 January 2025 to rely upon the evidence that I have just listed for the purposes of this hearing. The Claimant did not object and I grant that permission.

By application notice dated 27 January 2025, the Claimant applied for permission to rely upon Lyon 2. As Mr Lewis submitted, some parts of this statement contain expert, rather than factual, evidence. However, Mr Lewis pragmatically agreed that I should admit the entire statement but treat the passages that went beyond witness evidence of fact with caution, rather than seeking to distinguish between the factual and the purported expert evidence in the order that I made admitting the evidence. I will take this course, and accordingly, I will grant the application of 27 January 2025 on this basis. For the avoidance of doubt, where Lyon 2 strays into areas of expert evidence, I have not accorded those passages the weight that I would attach to independent expert evidence.

The time allowed for the hearing on 30 January 2025 was fully occupied with counsel's submissions (which in fact lasted approximately 3.5 hours). This was understandable given the amount of material and the breadth of the issues involved. During the hearing I indicated that I...