R (Anti-Waste Ltd) v Environment Agency
| Jurisdiction | England & Wales |
| Judge | Mr Justice COLLINS |
| Judgment Date | 04 April 2007 |
| Neutral Citation | [2007] EWHC 717 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4806/2005 |
| Date | 04 April 2007 |
[2007] EWHC 717 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Collins
Case No: CO/4806/2005
Mr Jeremy Cahill, Q.C. Mr Maurice Sheridan (instructed by Messrs Walker Morris) for the Claimant
Mr Jon Turner, Q.C. & Mr Gerry Facenna (instructed by The Legal Department of the Environment Agency) for the Defendant
Hearing dates: 20 and 21 March 2007
This claim started life as an application to quash the refusals by the defendant of permits to allow the claimant to deposit waste in two landfill sites in Norfolk. It also sought declarations to establish the true construction of material provisions in the relevant Regulations which apply Council Directives. The claimant accepts that the refusals rely not only on the alleged legal bar to the grant but also on factual objections and that there is a right of appeal to the Secretary of State given by the relevant Regulations. In those circumstances, an order was made by Sullivan J that permission be granted to enable two issues of law to be argued and declarations sought. The Secretary of State was served as an interested party and has put written submissions before me. The Secretary of State does not seek to take sides but emphasises the importance of providing for proper control so as to ensure that there is no prohibited pollution from any landfill.
Depositing waste in landfill sites is one way of disposing of it. Historically, it has been the major means in this country. EU Directives have made it clear that other methods which are aimed at recycling must be preferred and now landfill is the option of last resort. However, at present there is no alternative to its continuing use and, as must be obvious, sites within the United Kingdom which are suitable for landfill and which have received or are likely to receive planning permission are less available. Furthermore, the controls which have to be in place to ensure compliance with the pollution requirements of the Directives and the Regulations are difficult to meet so that the defendant has not found itself able to grant the necessary permits in many cases.
Waste is divided into three categories under the current landfill regime, namely hazardous, non-hazardous and inert. It is not necessary to consider the distinctions for the purposes of this claim. The waste with which this case is concerned is waste which degrades over a period of time and so produces three things. These are a residual waste mass, landfill gases (mainly methane) and a liquid known as leachate. This is liquid which can result from the nature of the waste but more usually comes from the action of rainfall over the site. Leachates will contain substances which, depending on the nature of the waste in the landfill, will almost invariably contain substances which are harmful to the environment and which may be hazardous to humans if they enter the groundwater. The Groundwater Regulations 1998 (SI 1998 No.2746), implementing Council Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances, divide the substances into List I and List II. In essence there must be no direct discharge of List I substances into groundwater and limitation of such discharge of List II substances so as to avoid pollution of groundwater by those substances.
Many landfills have been operating for a substantial period of time and it was in the past considered appropriate to allow leachate to be diluted and dispersed through underlying ground and sometimes thereafter through groundwater. That is not now permitted and should not have been allowed since 1980 when the Groundwater Directive came into force. Landfills are now constructed in cells which have a liner and a mechanism for collecting and removing leachate and gases. In some landfills, there are cells which do not have any liner or mechanism for collecting and removing leachate since they relied on the dilute and disperse method. Equally, there are in some landfills cells which are properly constructed. In either case, cells have been closed and no further use of them is planned. What the claimant seeks to do in the two sites with which this claim is concerned is to landfill so that the waste they deposit will overlap that in the existing closed cell, being above part of it. An angled liner which is strong enough and impervious so as to prevent leaching from the new waste through the old and compression of the old causing additional leaching from it is intended so that the new cell is independent of the old closed cell. This is known as piggybacking. It is the defendant's contention that piggybacking is not permitted by the applicable Directives and Regulations. The claimant, while recognising that there may be technical difficulties which make it impossible in some cases to avoid the risk of leaching, contends that piggybacking is lawful and that a permit can be granted if the technical problems can be overcome. I should note that the defendant says that it has dealt with a number of piggybacking applications and has refused each one because, independently of the legal objection, none has succeeded in overcoming all technical objections. Most or even, hitherto, all piggybacking applications may have been refused because of the factual circumstances applying to the landfill sites in respect of which they were made but that cannot assist in establishing whether on their true construction the relevant provisions of the Directives and Regulations prevent permits being granted even where the technical difficulties are overcome.
Specific legislative control of landfilling arose under the Control of Pollution Act 1974. Waste Disposal Licences needed to be obtained but, once the filling permitted by the licence was completed, the operator could relinquish the licence and would have no continuing obligation to manage the landfill. The Environmental Protection Act 1990 amended the regime by, among other matters, preventing the relinquishing of what were called Waste Management Licences (WML) without the regulator's permission. In 1990 the regulator was the waste regulation authority but in 1996 it became and has since remained the defendant. WMLs could not be relinquished until the operator demonstrated that the landfill no longer posed any unacceptable threat to the environment or to human health. Thus there was a continuing obligation to manage a landfill even though waste was no longer being deposited in it. The Landfill Regulations 2002 ( SI 2002 No. 1559) made under the Pollution Prevention and Control Act 1999, which came into force on 15 June 2002, now require an operator to obtain a landfill permit. Regulation 15 provides that a permit must require the defendant to approve any closure and obliges the operator to remain responsible for the maintenance, monitoring and control of the landfill for as long as the defendant reasonably determines that the landfill is likely to cause a hazard to the environment. In particular, the operator must monitor and control any leachate so as to stop it harming the environment or humans.
Since I am only concerned with the lawfulness of piggybacking, it is not necessary to deal in detail with the applications at the two sites in question. The two issues with which I have to deal are these:—
1. Can a landfill permit lawfully be granted for the separate operation of a landfill which partially overlies a closed cell containing previously deposited waste?
2. If a permit must relate to the whole site, namely the proposed landfill together with the closed cell, is the defendant required to refuse to grant a permit where the existing deposits (i.e. those in the closed cell) are responsible for harmful discharges to groundwater and where the landfills as a whole cannot be made to comply with the technical requirements of the Landfill Directives?
These two issues have been called the installation issue and the groundwater issue respectively.
It is necessary to refer to the material provisions of the Directives and the Regulations which have implemented them in domestic law. I remind myself that a national measure which is enacted in order to implement a Directive must be interpreted as far as possible, in the light of the wording and the purpose of the Directive, in order to achieve the result pursued by the Directive: see Marleasing [1992] 1 CMLR 305. The courts' obligation to achieve, so far as possible, the result the Directive has in view exists whether or not the national law has specifically enacted legislation which purports to implement the Directive: see Connect Austria [2003] ECR 1-5197 at paragraph 38. Thus if there is any ambiguity in the national law, the wording and the purpose of the Directive must prevail.
The starting point for the installation issue is the Integrated Pollution Prevention and Control Directive 1996/61/EC. This deals with pollution caused by many categories of industrial process, including waste disposal. Recital 8 reads:—
"Whereas the objective of an integrated approach to pollution control is to prevent emissions into air, waste or soil wherever this is practicable, taking into account waste management, and where it is not, to minimise them in order to achieve a high level of protection for the environment as a whole."
Article 1 states that the activities in Annex 1 must be controlled so as to avoid pollution. Those activities include, under the heading 'waste management':—
"Landfills receiving more than 120 tonnes...
To continue reading
Request your trial
-
R (Anti-Waste Ltd) v Environment Agency
...EWCA Civ 1377 [2007] EWHC 717 (Admin)" class="content__heading content__heading--depth1"> [2007] EWCA Civ 1377 [2007] EWHC 717 (Admin) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM QBD, ADMINISTRATIVE COURT MR JUSTICE COLLINS Royal Courts of Justice Stra......