R (on the application of BACI Bedfordshire Ltd) v The Environment Agency
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Henderson L.J.,Peter Jackson L.J. |
| Judgment Date | 19 November 2019 |
| Neutral Citation | [2019] EWCA Civ 1962 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2018/2968 |
| Date | 19 November 2019 |
[2019] EWCA Civ 1962
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MRS JUSTICE LANG DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
Lord Justice Henderson
and
Lord Justice Peter Jackson
Case No: C1/2018/2968
Mr Daniel Stedman Jones (instructed by Richard Buxton Solicitors) for the Appellant
Mr Guy Williams (instructed by the Environment Agency) for the First Respondent
Mr Richard Harwood Q.C. (instructed by Hogan Lovells International LLP) for the Second Respondent
Hearing date: 2 July 2019
Judgment Approved by the court for handing down
(subject to editorial corrections)
Introduction
Did an environmental permit for a waste incineration plant incorporate an error made in the permit application, and, if so, what were the consequences in law for the permit? That is the question at the heart of this appeal.
The appellant, BACI Bedfordshire Ltd., appeals against the order of Lang J., dated 6 November 2018, by which she dismissed its claim for judicial review challenging the environmental permit granted by the first respondent, the Environment Agency, to the second respondent, Covanta Energy Ltd., for the operation of a waste incineration plant at Rookery Pit, Stewartby in Bedfordshire. BACI is a local action group opposed to the development. The proposed waste incineration plant is known as the Rookery Pit Energy Recovery Facility. Its operation would recover energy from non-hazardous waste through incineration. It would have a capacity of about 585,000 tonnes of waste per annum. A development consent order was granted for it – as a “nationally significant infrastructure project” under the Planning Act 2008 – on 22 November 2011. Covanta applied for the environmental permit on 15 February 2017. The environmental permit was granted on 26 January 2018, under regulation 13 of the Environmental Permitting (England and Wales) Regulations 2016 (“the Environmental Permitting Regulations”).
The single ground of challenge in BACI's claim for judicial review was that the Environment Agency issued the environmental permit unlawfully, on a factually incorrect and scientifically erroneous basis, which was that the measures adopted for dealing with fugitive emissions from incinerator bottom ash (“IBA”) would prevent the discharge of potentially harmful heavy metals – such discharge being in breach of article 46(5) of Directive 2010/75/EU “on industrial emissions (integrated pollution prevention and control)” (“the Industrial Emissions Directive”) and the Environmental Permitting Regulations. BACI contended there was a risk of the unmonitored discharge of toxic dissolved heavy metals into surface water draining to Stewartby Lake, about 500 metres to the north-west of the site. The lake is within a Nitrate Vulnerable Zone, and is connected to the River Ouse system, which feeds the supply of public drinking water. The source of the factual error was said to be a sentence in the “Covanta Rookery South ERF Supporting Information” (“the supporting information document”), which was provided to the Environment Agency with the application for the permit. In the court below, both the Environment Agency and Covanta conceded the error in the supporting information document, but maintained that it had not affected the decision to issue the permit, and that the permit would be effective in preventing the discharge of dissolved heavy metals into the surface water drainage system. Lang J. accepted that argument. Permission to appeal was granted by Lewison L.J. on 8 February 2019.
The issues in the appeal
Four main issues emerge from BACI's grounds of appeal and Covanta's respondent's notice: first, whether the judge misconstrued the environmental permit as incorporating paragraph 2.4.5 of the supporting information document without the error contained in that paragraph; second, whether she misdirected herself on the law relating to mistake of fact; third, whether she ought to have acknowledged that the preparation by Covanta of its “Incinerator Bottom Ash (IBA) Dust Management Plan” (“the dust management plan”) was made necessary by the acknowledged risk of fugitive dust emissions occurring; and fourth, whether she was wrong to rely on the concept of “margin of appreciation” in concluding the permit was not unlawful.
The Industrial Emissions Directive
Article 1, “Subject matter”, of the Industrial Emissions Directive states:
“This Directive lays down rules on integrated prevention and control of pollution arising from industrial activities.
It also lays down rules designed to prevent or, where that is not practicable, to reduce emissions into air, water and land and to prevent the generation of waste, in order to achieve a high level of protection of the environment taken as a whole.”
“Pollution” is defined in article 3(2) as “the direct or indirect introduction, as a result of human activity, of substances … into air, water or land which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment”.
Article 46, “Control of emissions”, states in paragraph 5:
“5. Waste incineration plant sites and waste co-incineration plant sites, including associated storage areas for waste, shall be designed and operated in such a way as to prevent the unauthorised and accidental release of any polluting substances into soil, surface water and groundwater.
Storage capacity shall be provided for contaminated rainwater run-off from the waste incineration plant site or waste co-incineration plant site or for contaminated water arising from spillage or fire-fighting operations. The storage capacity shall be adequate to ensure that such waters can be tested and treated before discharge where necessary.”
Other provisions of the Industrial Emissions Directive, not directly relevant to these proceedings, were referred to in the course of argument. Article 44(c) requires an application for a permit for a waste incineration plant to describe measures to “guarantee” that “the residues will be minimised in their amount and harmfulness and recycled where appropriate”. Article 46(3) states that “[discharges] to the aquatic environment of waste water resulting from the cleaning of waste gases shall be limited as far as practicable …”. In Article 53, “Residues”, paragraph 1 requires residues to be “minimised in their amount and harmfulness …”; paragraph 2 states that “[transport] and intermediate storage of dry residues in the form of dust shall take place in such a way as to prevent dispersal of those residues in the environment”; and paragraph 3 requires “appropriate tests” to be carried out “to establish the physical and chemical characteristics and the polluting potential of the residues”, and that “[those] tests shall concern the total soluble fraction and heavy metals soluble fraction”.
The Environmental Permitting Regulations
Regulation 13(1) of the Environmental Permitting Regulations on the “[grant] of an environmental permit” states that “[on] the application of an operator, the regulator may grant the operator a permit (an “environmental permit”) authorising … (a) the operation of a regulated facility” and “(b) that operator as the person authorised to operate that regulated facility”. Regulation 13(3) provides that Part 1 of Schedule 5, “Environmental permits”, applies to an application for the grant of a permit. Paragraph 17 in Part 1 of Schedule 5 requires the determination on such an application to be notified to the applicant. Under paragraph 17(3), the determination includes “the reasons for [it]”.
Regulation 35(1) gives effect to the provisions of Schedules 7 to 25B. In Schedule 7, “Part A installations: Industrial Emissions Directive”, paragraph 3 requires the regulator to “exercise its functions under these Regulations for the purpose of achieving a high level of protection of the environment taken as a whole by, in particular, preventing or, where that is not practicable, reducing emissions into the air, water and land”. In Schedule 13, “Waste incineration: Industrial Emissions Directive”, paragraph 4 requires the regulator to “exercise its relevant functions so as to ensure compliance with” several specified provisions of the Industrial Emissions Directive, including “(h) Article 46”.
Regulation 36(1) empowers the regulator to serve an enforcement notice on an operator if it “considers that [the] operator has contravened, is contravening, or is likely to contravene an environmental permit condition”. Regulation 38(2) makes it an “offence for a person to fail to comply with or contravene an environmental permit condition”.
The supporting information document
The supporting information document was prepared by Covanta's consultants, Fichtner Consulting Engineers Ltd.
It described the proposed installation in subsection 1.4. Paragraph 1.4.1.2. said that the
“Combustion Bottom Ash and co-mingled metals, known as [IBA], will be discharged off the end of the incinerator grate into a water filled quench pit”; that the “wet ash will then be transferred by conveyor to an ash storage bunker inside the waste incineration plant for safe and secure storage”; that “the composition of the IBA is expected to be similar to that from modern UK waste incineration facilities”; and that the “IBA is expected to be transferred to the on-site IBA facility either by conveyor or truck for processing”.
Subsection 2.3, “Water use”, described two separate water management systems: process water and surface water. Paragraph 2.3.1 explained the...
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