The Queen (on the application of Cleansing Service Group Ltd) v Environment Agency
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Sharp LJ,Rafferty LJ |
| Judgment Date | 14 February 2019 |
| Neutral Citation | [2019] EWCA Civ 157 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2017/2059 |
| Date | 14 February 2019 |
[2019] EWCA Civ 157
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Dove
CO/2172/2017
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
Lady Justice Sharp
and
Lord Justice Baker
Case No: C1/2017/2059
Gordon Wignall (instructed by Sharpe Pritchard LLP) for the Appellant
Heather Sargent (instructed by Environment Agency Legal Services) for the Respondent
Hearing dates: 16 January 2019
Approved Judgment
This is an application for judicial review of policy guidance issued by the Environment Agency setting out its interpretation of certain provisions in Schedule 3 to the Environmental Permitting (England and Wales) Regulations 2016. Under the regulations, hereafter referred to as “the EPR”, persons engaged in certain activities involving waste products are required to hold an environmental permit. Schedule 3, however, provides exemptions from this requirement, including, under Chapter 5, Section 2, paragraph 3 of the schedule, an exemption relating to the storage of sludge – the so-called “S3 exemption”. Permission to apply for judicial review was refused on paper by Jeremy Baker J whose decision was upheld at an oral renewal hearing by Dove J. On considering an application by the claimant for permission to appeal, however, Underhill LJ, pursuant to CPR r.52.8(5), gave permission to apply for judicial review and further, pursuant to r.52.8(6), ordered that the application should proceed in this Court.
Background
The following summary is taken from the statement of facts and grounds of challenge filed in support of the application, the witness statement dated 2 May 2017 of Mr Brian Dollen, the claimant's finance director, and the witness statement dated 30 May 2017 of Mr David Womack, a Senior Environment Officer at the Environment Agency.
The claimant is a well-established company with annual sales revenue in the region of £65m and about 500 employees. Its various business activities include the emptying of cess pits and septic tanks. In 2017, the company served over 23,000 customers, of which 84% were residential and the remainder commercial.
A septic tank is an underground two or three chamber tank system located at residential or commercial premises and used for the treatment of sewage when a property is not connected to mains drainage. It has an inflow of sewage from the premises and outflow from the tank. The septic tank allows solid matter to settle and form as sludge at the bottom of the tank where it is naturally broken down. Liquid effluent, described by Mr Wignall on behalf of the claimant as “supernatant liquor”, passes out of the tank via an outlet pipe. Before discharge into the water environment, it requires additional treatment, usually by being spread via a drainage field, a subsurface irrigation area comprising perforated infiltration pipes laid in shingle-filled trenches, where the microorganisms in the soil break down the remaining organic matter so as to prevent any pollution. Settled sludge that is not decomposed in the tank must eventually be removed to avoid overflow and blockages.
Sludge is removed from the septic tank by the claimant's operative viral hose inserted into the top of the tank which, by way of vacuum, transfers the sludge into the claimant's tanker. The sludge removed from the septic tanks in this way is principally used as agricultural fertiliser. This use is governed by European regulation (Directive 86/278/EEC on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture, hereafter “the Sludge Directive”) and the consequential UK regulations (the Sludge (Use in Agriculture) Regulations 1989, hereafter “SUiAR”), both considered in more detail below. There is a code of practice published by the government giving guidance as to the use of sewage sludge on farmland. It is not practicable for sludge to be injected into the ground at certain times of year, particularly if the land is covered in snow or frost, or is waterlogged. For that reason, it is necessary for the claimant's tanker to discharge the sludge into a temporary storage tank on the farmer's property. It is recognised that septic tank sludge stored on farmland in this way represents a low risk to the environment. For that reason, such storage is exempt from the requirement to hold an environmental permit under regulatory provisions set out below.
The claimant has four active S3 exemptions registered in its name for four different farm sites in the West Country and, in addition, delivers septic tank sludge to another five locations that have S3 exemptions registered in the farmer's name. Each of the tanks situated on farmland is fitted with a grid at the inlet to the tank so that gravity allows debris in the sludge to be separated from the sludge itself. It is accepted by the claimant that all septic tank sludge collections contain debris, and further, that the volume of debris has become more problematic in recent years as a result, it is said, of the proliferation of wet wipes. Nonetheless, the claimant's case is that the debris forms only a very small fraction of the sludge – less than 0.04%. The claimant's evidence is that, every time a load is discharged, an operative checks the grid and, if necessary, removes sludge debris and drops it into a chute that feeds into an open skip. It is the claimant's case that there are no pollution risks from this process. Any liquid dripping from the sludge debris or escaping from the skip will drain into the field. The skip is subsequently removed to a permitted or exempt facility for the disposal of the debris.
In July 2016, the Agency's regional office arranged a meeting to discuss the transport, deposit and disposal of sludge. According to the claimant, the Agency's officers stated at the meeting that a permit was not required for the separation of sludge debris, provided it was disposed of correctly and that there were records to prove this had been done. In the next few months, however, the Agency's officers visited a number of sites to inspect activities. One such inspection, conducted by Mr Womack, took place on 7 November 2016 at a site operated by a contractor, Mr Gibbens. It is accepted that the claimant's tankers would regularly deposit sludge at the site. In his statement in these proceedings, Mr Womack described what he found during his inspection and exhibited photographs by way of illustration. He noted that there was no fencing or security to prevent public access to either the tanks, the pumps or any of the associated pipework. An inspection of the pipes and tanks revealed pieces of sewage waste hanging from the side of the storage tank. Sewage collected at the base of the tank on a scale which, in Mr Womack's view, had the potential to cause groundwater pollution. The skip was completely overflowing with wet wipes and sanitary products. The area around the base of the skip was wet with pools of sewage effluent. There was a strong smell of sewage and a proliferation of flies. A number of rats were present.
Following this visit, on 7 November 2016, Mr Womack sent an email to Mr Gibbens stating inter alia
“We noted a crude form of screening …. We must point out that the S3 exemption only allows the storage of sludge. It does not allow any form of treatment on site and this includes screening of the sludge prior to its application to land …. A standard rules … permit is available …. No screening should take place until the permit has been issued.”
According to the claimant, Mr Gibbens closed down his business following receipt of this email. On 23 November 2016, the Agency sent a letter to the claimant stating inter alia:
“Earlier this year the Environment Agency invited liquid waste carriers to a workshop to discuss legislation and good practice around the collection, transport and disposal of liquid waste, predominantly sewage waste.
A number of points were raised and issues identified by the operators who attended which we would like to share with you. This letter highlights the legislative requirements when storing, transporting or disposing of sewage waste which you must adhere to.
We wish to take this opportunity to inform you that the S3 exemption that you have registered with the Environment Agency only authorises the storage of sewage or septic tank sludge at a farm before it is spread on land.
It does not authorise any treatment of sewage sludge or septic tank sludge. Therefore, activities such as screening of waste, without a suitable permit, is an offence. Please find below further explanation of what is permitted by S3 exemptions and the treatment options for sewage sludge, septic tank and cesspit waste.”
The following two pages of the letter contained guidance on a number of matters, of which only the first is relevant to this case. These pages have subsequently been identified by the Agency as “the guidance document”. Under the heading “Screening at Place of Spreading Under an S3 Exemption”, it states:
“Screening of sewage sludge without a suitable permit is an offence. An S3 exemption authorises the storage of waste only and does not include treatment options. The operator should apply for a Standard Rules or bespoke permit.
Note: A Dorset operator was prosecuted in March 2016 for the treatment of sewage sludge, namely screening without a permit amongst other offences. Weymouth Magistrates ordered the Director to pay £10,650 in fines and costs and the company was ordered to pay a total of £31,947 in fines and costs.”
On 7 December 2016, the claimant wrote to the Agency expressing concern that guidance issued by the regional...
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