Levy v Environment Agency and Another

JurisdictionEngland & Wales
Judgment Date30 July 2002
Neutral Citation[2002] EWHC 1663 (Admin)
Docket NumberCase No: CO/4765/2001
CourtQueen's Bench Division (Administrative Court)
Date30 July 2002

[2002] EWHC 1663 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Before

The Honourable Mr Justice Silber

Case No: CO/4765/2001

David Levy
Claimant
and
The Environment Agency Blue Circle Industries Plc
Defendant Interested Party

Dr. David Wolfe (instructed by Bindmans for the Claimant)

Mr. Jon Turner (instructed by The Environment Agency for the Defendant)

Mr. Stephen Tromans (instructed by Clarks of Reading for the Interested Party)

Silber J:

Outline of the case

1

Mr. David Levy ("the claimant") seeks to challenge a decision of the Environment Agency ("the Agency"), which is contained in a Decision Document of August 2001 ("the Decision Document"), under which it granted a variation applied for in June 2000 ("the June 2000 application") by Blue Circle Industries plc ("Blue Circle") so as to permit the permanent use of scrap tyres as a substitute fuel at up to 24% thermal substitution at Blue Circle's cement works ("the cement works") at Westbury, Wiltshire. The claimant lives in the vicinity of the cement works and he is also founder of "The Air That We Breathe Group". He complains that the Agency failed to consider properly some of the environmental aspects of the June 2000 application.

2

Permission to make this application was granted by Elias J. Blue Circle was served as an Interested Party and it has appeared by counsel on the hearing having previously adduced evidence. The Agency is joined by Blue Circle in resisting this application. The claimant has abandoned most of the grounds on which he obtained leave and he now relies on only three grounds. The Agency contends that the claimant still needs permission to pursue one of these grounds as I will explain.

The background to this application

3

In 1962, Blue Circle's Westbury works commenced its cement producing operations. In 1996, trials were conducted at the cement works using tyres as a substitute for fuel to prove that the use of such power was both practical and acceptable from an environmental aspect. The initial results were inconclusive and it became clear that further trials would be required to improve the conditions in the kilns and to prove that there could be an overall environmental benefit from the use of tyres. In 1997, Blue Circle applied for a variation to its Integrated Pollution Control authorisation, which was granted under a regime introduced by the Environmental Protection Act 1990 ("the 1990 Act").

4

Blue Circle was granted permission to conduct a further trial using tyres as substitute fuel up to a maximum 40% thermal substitution. The trial commenced on 1 June 1998. Subsequently, an enforcement notice was issued by the Agency on 11 June 1998 which suspended the trial until management controls for the trial had been revised to the satisfaction of the Agency. The trial was allowed to resume on 22 March 1999 but then only after the Agency was satisfied that the concerns that caused it to issue this enforcement notice had been adequately addressed. At the time of the 1997 application, the consultation draft of the Agency' Substitute Fuels Protocol was followed. It has now been approved and it was also followed in the course of Blue Circle's application, which led to the decision under challenge in this case.

5

In December 1998, the Agency completed the statutory regular four yearly review of all the conditions required for the authorisation of the Westbury works of Blue Circle under section 6(6) of the 1990 Act, which I will explain in paragraph 15. On 16 June 2000, the Agency set a range of new conditions in the authorisation for the Westbury works including a new emission limit as a result of the recommendations for that four year review and consequential work, including assessments of the most exacting emission limits that could be imposed after an extensive consultation exercise.

6

During the previous trial conducted in 1998 and 1999, tests had been carried out while substituting conventional fuels with tyres up to a maximum thermal substitution level of 40%. In the June 2000 application, Blue Circle sought permission from the Agency to use tyres as substitute fuel up to 24% thermal substitution. By the Decision Document, the Agency granted the June 2000 application of Blue Circle but then only subject to a substantial number of significant conditions and it is this decision which is being challenged on this application.

7

The Decision Document consists of 166 pages and it was prepared after a very lengthy consultation process, which entailed meetings by the Agency with various interested parties, as well as the Agency receiving and considering comments from many consultees. The Decision Document not only sets out the points so raised and the Agency's responses to them, but it also states the Agency's conclusions after considering many different relevant statutory provisions as well as the scientific evidence on various significant health and environmental matters. To understand the present challenge to the decision, it is now necessary to explain the statutory framework against which the June 2000 application was made and considered by the Agency and to which I now turn.

The statutory framework in the Environmental Protection Act 1990

8

Part 1 of the 1990 Act contains a statutory regime for the control of pollution from industrial processes, known as Integrated Pollution Control ("IPC"). Under that regime, those wishing to carry on certain prescribed processes are required to obtain authorisations from an enforcing authority.

9

The defendant Agency is the relevant enforcing authority in the present case, while cement manufacture is a prescribed process under the IPC regime. Thus, Blue Circle's Westbury cement works required authorisation from the Agency in respect of the prescribed processes and that included the subject of the June 2000 application, which is the subject of the present application.

10

Under section 6(3) of the 1990 Act where an application for an authorisation is duly made to an authority (in this case, the Agency), the enforcing authority "shall either grant the authorisation subject to the conditions required or authorised to be imposed by section 7 [of the Act] or refuse the application".

11

A provision of substantial importance in this case is section 7(1)(a) of the 1990 Act, which provides that the enforcing authority shall include in an authorisation "such specific conditions as [it] considers appropriate, when taken with the general condition implied by subsection (4) below, for achieving the objectives specified in subsection (2)". Section 7(2) of the 1990 Act provides, insofar as is relevant to the present application, that:

"Those objectives are (a) ensuring that, in carrying on a prescribed process, the best available techniques not entailing excessive cost will be used (i) for preventing the release of substances prescribed for any environmental medium into that medium, or, where that is not practicable by such means, for reducing the release of such substances to a minimum and for rendering harmless any such substances which are so released;…and (ii) for rendering harmless any other substances which might cause harm if released into any environmental medium".

12

I will refer to those objectives in section 7(2)(a) of the 1990 Act as "the specified objectives". The phrase "the best available techniques not entailing excessive cost" in section 7(2)(a) of the 1990 Act is usually known by the acronym "BATNEEC" and I will also refer to it in that way.

13

The general condition of the 1990 Act implied by section 7(4) of the 1990 Act and which is referred to in section 7(1)(a) of the 1990 Act, is that a person carrying on a prescribed process must, among other things, use BATNEEC for the specified objectives.

14

Another provision of importance is section 7(7) of the 1990 Act, which insofar as is material to this case, provides that where, as in the case of the June 2000 application, a process is likely to involve the release of substances into more than one environmental medium (i.e., air, water or land).

"The objectives referred to in subsection (2) above shall…include the objective of ensuring that the best available techniques not entailing excessive cost will be used for minimising the pollution which may be caused to the environment taken as a whole by the releases having regard to the best practicable environmental option available as respects the substances which may be released".

The phrase "best practicable environmental option" in section 7(7) of the 1990 Act is usually known by the acronym "BPEO" and I will also refer to it in that way.

15

It is also significant that section 6(6) of the 1990 Act provides that the enforcing authority, in this case the Agency, is under a duty to carry out a review of the conditions of any authorisation "from time to time but not less frequently than once in every period of four years".

16

Section 11(1) of the 1990 Act empowers a person carrying on a prescribed process under an authorisation who wishes to make "a relevant change in the process" to apply for a variation of the conditions of the authorisation. The term "a relevant change in a prescribed process" is defined in section 11(11) of the 1990 Act as being "a change in the manner of carrying on the process which is capable of altering the substances released from the process or of affecting the amount or any other characteristic of any substance so released". Thus the June 2000 application by Blue Circle in this case was made under section 11 of the 1990 Act and the ensuing Decision Document was issued pursuant to it. Section...

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