R (Edwards) v Environment Agency
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith,MR JUSTICE KEITH |
| Judgment Date | 02 April 2004 |
| Neutral Citation | [2004] EWHC 736 (Admin) |
| Date | 02 April 2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5702/2003 |
[2004] EWHC 736 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Keith
Case No: CO/5702/2003
Mr D Wolfe (instructed by Richard Buxton) for the Claimant
Mr D Elvin QC and Ms K Smith (instructed by Environment Agency Legal Services) for the First Defendant
Mr S Tromans (instructed by Michael Collins, RMC(UK) Legal Department) for the Interested Party
The issue of the Permit
Rugby Ltd. ("the Company") operates a cement plant near Rugby town centre. The operations had been authorised under the integrated pollution control regime enforced by the Environment Agency ("the Agency") under Part I of the Environmental Protection Act 1990. A new statutory regime governed by the Pollution Prevention and Control (England and Wales) Regulations 2000 ("the PPC Regulations") subsequently came into force in order to implement Council Directive 96/61/EC on integrated pollution prevention and control. Accordingly, if the Company was to continue operations from the plant, it had to obtain a permit under the PPC regulations.
On 12 August 2003, the Agency issued a permit ("the Permit") to the Company under reg. 10 of the PPC Regulations authorising the Company to continue operations at the plant. The Permit also authorised the use of tyre chips as a partial substitute for the existing fuels used in the operations subject to the satisfactory completion of trials.
The challenge to the issue of the Permit
Prior to the issue of the Permit, the Agency had embarked on an extensive consultation exercise. It acknowledged that the use of tyre chips as an alternative source of fuel even on a trial basis was a sensitive issue, and that there was considerable local concern about the effect of the trials on the environment. However, local opposition to the burning of tyre chips continued after the issue of the Permit, and this claim for judicial review of the grant of the Permit has been brought by a local inhabitant of Rugby, Mr David Edwards. The issue of the Permit was attacked on three grounds in the judicial review claim form, but the principal line of attack was that the requirements of Council Directive 85/337/EEC as amended ("the Directive") had not been complied with in connection with the issue of the Permit.
In summary, the purpose of the Directive was to ensure that a planning decision which involves the grant of "development consent" for a "project" as defined by the Directive and which may affect the environment is made on the basis of full information, which has been obtained by a procedure known as an environmental impact assessment. An essential element in that procedure is the publication by the developer of a statement ("an environmental statement"), in which information relating to the anticipated impact of the development on the environment is to be given. In that way members of the public are given an opportunity to express an opinion on the topic to enable the planning decision to be made in the light of such views. The non-compliance with the requirements of the Directive of which Mr Edwards complains is that an environmental statement was not published ("the Directive issue").
The Agency's case (and that of the First Secretary of State, who was also named as a defendant because he was responsible for transposing the Directive into English law) is that the issue of the Permit was not "development consent" for a "project" as defined by the Directive, and an environmental statement was therefore unnecessary. It had been necessary in 1995 when planning permission for new cement works had originally been submitted, and an environmental statement of the kind contemplated by the Directive had been published then. In any event, the Agency contends that in the process leading up to the issue of the Permit it had substantially complied with the requirements of the Directive.
The other two grounds on which the issue of the Permit was attacked were that (a) the Agency had failed to ensure that the proposal used the "best available techniques" ("the BAT issue"), and (b) the Agency had failed to consider whether burning waste tyres was the "best practicable environmental option" for dealing with the waste stream involved in the operation ("the BPEO issue"). The BPEO issue is no longer pursued.
The claim was considered by Sullivan J. without a hearing. He refused Mr Edwards permission to proceed with the claim. He did not think that Mr Edwards had a sufficient interest to bring the claim. He noted that the BAT issue was completely unparticularised. And he thought that insufficient information had been given about how the alleged non-compliance with the Directive had affected the issue of the Permit or what its impact on Mr Edwards had been. Mr Edwards now renews his application for permission to proceed with his claim. The problem with the particularisation of his claim has now been remedied. The BAT issue has been particularised (albeit only a week or so before the hearing), and the extremely skeletal grounds in the claim form relating to the Directive issue have been very considerably fleshed out in the skeleton argument of Mr Edwards' counsel, Mr David Wolfe (albeit received by the Administrative Court Office on the day before the hearing).
In the course of the hearing, it became apparent that it would take some time to determine the arguability of the two remaining issues, the Directive and BAT issues, as well as the question of Mr Edwards' standing to bring the claim. The estimate of two hours may have been sufficient for a judge who has had to consider issues arising from the Directive before, but not for one who had not. Accordingly, the parties agreed that the appropriate course for me to take was to decide the issue of standing, and if I concluded that Mr Edwards had the standing to bring the claim, I should direct that the question whether permission should be given for the claim to proceed should be decided at a full hearing of the claim, with a time estimate of 2 to 2 1/2 days. I agreed to take this course in view of what I knew about the arguments relating to Mr Edwards' standing. I thought that it was a discrete issue which could be decided irrespective of the merits of the claim. After the argument on the issue of Mr Edwards' standing concluded, I reserved judgment, and this is my judgment on that issue.
The facts relating to Mr Edwards' standing
I begin where the Agency begins. It notes that the substantial and vociferous local opposition to the Agency's decision to permit the Company to burn tyre chips in its cement plant has not resulted in this claim for judicial review being brought by known opponents of the decision – for example, the Rugby Primary Care Trust or Rugby Borough Council or representatives of a local pressure group, Rugby in Plume. Instead, it has been brought by someone who did not make any representations to the Agency during the extensive consultation process which took place, who did not attend any of the public meetings, who did not express his opposition to the Company's proposal by sending to the Agency a pre-printed postcard which had been provided by local campaigners as an easy means for members of the public to register their objections, and who did not make himself known to the Agency at all.
So what is known about Mr Edwards? The claim form gives little away. It simply said that he was "a resident of Rugby who is affected by the operation of the [Company's] works and is concerned about the effects of the operations now permitted". It did not even give his address. In a subsequent witness statement, he said that he had lived in Rugby all his life, except while serving in the RAF, and he identified a large number of addresses in Rugby at which he had lived. A local councillor has said that at least at some of the places he had lived, he would have been affected by pollution from the Company's works. But she made no comment about his last address (wherever that was), and she states that he is currently homeless – though still in Rugby, I was told.
That is not to say that he is not concerned about the environmental effect of the decision he is seeking to challenge. He may not have taken an active part in the campaign, but the local councillor says that he has expressed his concern to her about the effect which the cement works has on Rugby and its inhabitants. And in his witness statement he said:
"I have not only...
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