R (Anti-Waste Ltd) v Environment Agency
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Sedley,Lord Justice Rimer |
| Judgment Date | 20 December 2007 |
| Neutral Citation | [2007] EWCA Civ 1377 |
| Date | 20 December 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2007/0900 |
[2007] EWCA Civ 1377
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, ADMINISTRATIVE COURT
MR JUSTICE COLLINS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Sedley and
Lord Justice Rimer
Case No: C1/2007/0900
Mr J Turner QC and Mr G Facenna (instructed by The Environment Agency) for the Appellants/Respondents
Mr M Fordham QC and Mr M Sheridan (instructed by Messrs Walker Morris) for the Respondents/Appellants
James Maurici for the Secretary of State for the Environment, Food and Rural Affairs as an interested party by way of written representations only
This is an appeal against a judgment of Collins J dated 4 April 2007 whereby he granted to Anti-Waste Limited (“the appellants”) declarations that:
“1. As a matter of law a landfill permit may be granted pursuant to the Landfill Regulations ( SI 2002/1559) for the operation of a separate landfill which partially overlies a closed cell containing previously deposited waste (“a piggybacking landfill”).
2. Where an installation or part of an installation as a landfill includes a closed cell which is discharging, and which will continue to discharge, a List I substance into groundwater or a List II substance such as to cause pollution of groundwater, a landfill permit cannot as a matter of law be granted for that landfill as the landfill permit would thereby permit those discharges to be made from that landfill contrary to the Groundwater Regulations ( SI 1998/2746)”.
The Environment Agency (“the Agency”) appeal against the first declaration. That became known as the “installation issue”. The appellants appeal against the second declaration, claiming that a different declaration should have been made. That issue became known as “the groundwater issue”. The Secretary of State for the Environment, Food and Rural Affairs (“the Secretary of State”) has not sought to be heard on these appeals.
The appellants are a waste management company, a subsidiary of Waste Recycling Group Limited, one of the main waste management companies in the country. The agency is a statutory body created under the Environment Act 1995 (“the 1995 Act”) charged with responsibilities for the protection of the environment, including the issue of permits for landfills.
These proceedings began with an attempt by the appellants to quash two decisions of the Agency declining to issue permits for landfills in Norfolk. Declarations were also sought. In relation to the specific sites the appellants agreed to pursue a statutory appeal to the Secretary of State against the refusals. That would enable factual and technical matters to be dealt with before a specialist tribunal. The appellants pursued the claim for declarations so that the statutory appeals could be heard in the light of them.
The Background
Depositing waste in landfill sites has been the major method of disposal in this country. EU Directives have promoted other methods aimed at recycling, and landfill is now the option of last resort. The Directives require member states to put in place controls to ensure compliance with pollution requirements.
The waste with which this case is concerned degrades over a period of time to produce a residual waste mass, landfill gases (mainly methane) and a liquid known as leachate which often comes from the action of rainfall over the site. Leachates will contain substances harmful to the environment and which may be hazardous to humans if they enter the groundwater.
Collins J described the background to the present dispute:
“4. 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.”
5. 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 [Agency]. 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 (England and Wales) Regulations 2002 (“The Landfill Regulations”), 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”.
The Regulations and the Issues
The court has been referred to several Directives and sets of Regulations but, since in my view the case turns on short points, I will not set them out in full. Mr Turner QC, for the Agency, stresses that landfill regulations should be considered in the context of the entire waste management regime inaugurated by the Directives. Council Directive 96/61/EC of 24 September 1996, the Integrated Pollution Prevention and Control Directive, 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 of the Directive provides that the activities in Annex 1 must be controlled so as to avoid pollution. The activities include, under the heading “Waste Management”: “Landfills receiving more than ten tonnes per day or with a total capacity exceeding 25,000 tonnes, excluding landfills of inert waste”. Article 4 requires Member States to take the necessary measures “to ensure that no new installation is operated without a permit issued in accordance with this Directive.” Installation is defined in Article 2(3):
“'Installation' shall mean a stationary technical unit where one or more activities listed in Annex 1 are carried out, and any other directly associated activities which have a technical connection with the activities carried out on that site which could have an effect on emissions and pollution.”
Council Directive 99/31/EC of 26 April 1999, the Landfill Directive, makes detailed provision for the landfill of waste.
The Pollution Prevention and Control (England and Wales) Regulations 2000, as amended (“the Pollution Control Regulations”), and the Landfill (England and Wales) Regulations...
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