R (Edwards) v Environment Agency (No. 2)
| Jurisdiction | UK Non-devolved |
| Judge | LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD WALKER OF GESTINGTHORPE,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD MANCE |
| Judgment Date | 16 April 2008 |
| Neutral Citation | [2008] UKHL 22 |
| Date | 16 April 2008 |
| Court | House of Lords |
(on the application of Edwards and another (Appellant))
and others
[2008] UKHL 22
Appellate Committee
Lord Hoffmann
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
Lord Mance
HOUSE OF LORDS
Appellants:
David Wolfe
Tessa Hetherington
(Instructed by Richard Buxton)
Respondents:
David Elvin QC
Kassie Smith
(Instructed by Environment Agency; Treasury Solicitor)
Interveners Counsel
Stephen Tromans
Colin Thomann
(Instructed by Cemex UK Cement Limited)
My Lords,
This appeal arises out of an application to quash a permit issued on 12 August 2003 by the Environment Agency ("the Agency") to Rugby Ltd for the operation of a cement works in Lawford Road, Rugby. The chief grounds are that the Agency did not disclose enough information about the environmental impact of the plant to satisfy its statutory and common law duties of public consultation. Rugby Ltd has since been taken over by the Mexican multinational Cemex and is called Cemex UK Cement Ltd, but I shall for convenience refer to it as "the company".
The PPC Regulations
Cement has been made at Rugby since the time of Dr Arnold. But the Lawford Road plant was built less than 10 years ago. It represents the latest technology in cement making. When it was built, the manufacture of cement required authorisation under Part I of the Environmental Protection Act 1990. Authorisation was granted in 1999 and the plant began commissioning in the following year. In 2000 a new system of pollution control was introduced by the Pollution Prevention and Control (England and Wales) Regulations SI 2000/1973 ("the Regulations"). These Regulations were made under the Pollution Prevention and Control Act 1999, mainly to enable the UK to give effect to the European Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control ("the IPPC Directive") but in some respects going further than the directive required.
Principles of pollution control
The Regulations provide that anyone operating a cement plant must obtain a permit from the Agency. No distinction is made between plants already in operation and new plants. Part II of the Regulations sets out the principles upon which the Agency must act in deciding whether to grant a permit. They are quite complicated and involve a lot of acronyms (there is a glossary at the end of the printed version of my speech), but I shall try to explain them as briefly as the subject will allow, because some knowledge of the general scheme is necessary to understand this case.
The Regulations use, broadly speaking, two approaches to the control of pollution. The first is based upon the IPPC Directive. It is to impose limits ("emission limit values" or ELVs) on the quantities of polluting matter which a given activity may emit; e.g. requiring that a plant may not emit more than so much nitrogen dioxide: see regulation 12(2) and (6). That approach is helpful so far as it goes, but does not prevent excessive pollution caused by there being simply too many sources of nitrogen dioxide in the area. The other method is based upon the Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management (the "Air Quality Directive"), which provides a framework for specific directives imposing quantitative limits (environmental quality standards or "EQS") on the extent to which the environment may be polluted. Relevantly in the present case, Council Directive of 22 April 1999 (1999/30/EC) imposed limits on concentrations of sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air. The application of an EQS may in some cases be unfair to an applicant whose plant appears likely to breach the limit but will actually emit very little pollutant compared with other existing sources. He may be refused a permit because he happens to be at the end of the queue.
The Regulations use, as I say, a combination of these techniques. Regulation 11(2) says that the object of regulation is to ensure that —
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(a) all the appropriate preventative measures are taken against pollution, in particular through application of the best available techniques; and
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(b) no significant pollution is caused.
To give effect to (a), the Agency requires applicants to satisfy them that they are using the best available techniques ("BAT") calculated to prevent, or at least to minimise, the emission of polluting matter. BAT are required irrespective of whether the emission would cause a breach of an overall pollution limit: as the Agency says in its Sector Guidance Note for the Cement and Lime Industry (IPPC S3.01) Version 1, April 2001, at p. 1, the regulations "[require] us not to consider the environment as a recipient of pollutants and waste, which can be filled up to a given level, but to do all that is practicable to minimise the impact of industrial activities." (To similar effect, Buxton LJ in R. (Rockware Glass Ltd) v Chester City Council [2007] Env LR 3, paras 33-39). Sector Guidance Notes, such as that to which I have referred, contain "indicative" standards of what the Agency considers to be BAT for activities in that industry. They take the form of a description of the technology which should be used and a "benchmark" of the emission limits which should be achieved. An applicant has to justify any departure from these indicative standards. Regulation 12 (6) requires that the permit, when granted, should contain conditions imposing ELVs based upon what BAT should be able to achieve.
The second principle is that the activity shall not cause "significant pollution" (regulation 11(2)(b)), whether it is using BAT or not. If BAT cannot prevent significant pollution, the activity should not be licensed at all. But what is significant pollution? For the purposes of the regulations, it is pollution which causes a breach of an EQS. Regulation 12(7) provides:
"Where an environmental quality standard requires stricter emission limit values than those that would be imposed pursuant to paragraph (6), paragraph (2) shall require those stricter emission limit values; and for the purpose of this paragraph 'environmental quality standard' means the set of requirements which must be fulfilled at a given time by a given environment or particular part thereof, as set out in Community legislation."
As I have already mentioned, a crude application of regulation 12(7) could be unfair when an applicant will cause very little pollution but the air is already close to breaching an EQS because of pollution from other sources. Guidance on the question of whether a European EQS will "require" stricter ELVs is contained in Integrated Pollution Prevention and Control: A Practical Guide, Edition 4 issued by DEFRA in June 2005:
"10.1…[T]he main basis for setting ELVs under the PPC Regulations will be the application of BAT. However, ELVs must also satisfy regulation 12(7), among other provisions. Regulation 12(7) states that where an environmental quality standard (EQS) as set out in Community legislation requires stricter ELVs than those achievable under BAT, the regulator must impose those stricter limits….
10.7 Where an existing installation is the main or only cause of a breach of a Community EQS the regulator must set ELVs accordingly. If those are not viably achievable, the regulator should refuse the permit…
10.8 Where an existing installation is a significant contributor to a breach of a Community EQS, but other sources such as traffic also make major contributions, regulators should explore all options for securing compliance with that EQS. It may be right for them to restrict releases from the other sources rather than tighten the IPPC limits. How far a regulator can do this will depend on its powers to control the other sources. Alternatively, the regulator may find that there are other things it can do to rectify the breach, such as draw up an action plan for an air quality management area (AQMA) under Part IV of the Environment Act 1995. However, if the regulator does not have powers to control the other sources, and does not believe that other means will bring about compliance with the EQS, it must impose stricter permit conditions, but it should involve the operator in that consideration so that the operator has the opportunity to suggest solutions. A combination of controls on all sources must ensure that Community EQSs are met.
10.9 Where an existing installation makes only a minor contribution to a breach of a Community EQS caused mainly by other, non-IPPC sources, ELVs for the installation should reflect that and would generally be expected not to differ significantly from those which would apply regardless of the applicability of the Community EQS. It will be much more important for the regulator to use whatever other powers it has to control the main sources of the breach.
10.10 A breach of a Community EQS could result from the combined effects of a number of installations. This could occur in an industrial area with elevated concentrations of air pollutants, or in an estuary where high levels of pollutants have accumulated due to releases up-river. In such cases it may be appropriate to review several permits in the area to set slightly stricter ELVs for each installation rather than simply imposing the entire burden of compliance on the last applicant."
The permit application
My Lords, against that regulatory background I can explain how the dispute in this case arose. The company applied for a permit on 21 August 2001. Paragraph 1 of Schedule 4 of the Regulations requires an application to provide information as to a large number of matters, including:
"(g) the nature, quantities and sources of foreseeable...
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