Edwards & Anor v The Environment Agency & Ors

This is an appeal by Mr David Edwards and Mrs Lillian Pallikaropoulos, the nominal claimants and appellants on behalf of a large number of residents of Rugby, against the refusal by Lindsay J on 19^th April 2005, in the exercise of his discretion, of relief in judicial review proceedings to quash a conditional permit granted by the Environment Agency (“the Agency”), the first Respondent, to Rugby Limited, now Cemex UK Cement Ltd, the Interested Party, pursuant to regulation 10 of the Pollution Prevention and Control (England and Wales) Regulations 2000 (SI 2000/1973) (“the PPC Regulations”) for the continued operation of its cement plant in Rugby, including, as a new proposal, the burning of waste tyres as a partial substitute for conventional fuel in the kiln at the plant. One of the conditions of the permit was that it was to be subject to completion of a successful trial of tyre burning.

In 1996 Warwickshire County Council (“the Council”) granted Rugby Ltd planning permission to build a new cement plant with a single kiln on the edge of Rugby to replace a smaller kiln on the site and others operated by it. As part of the process leading to the grant of that permission Rugby Ltd had also submitted to the Council an environmental statement pursuant to the requirements of the environmental impact assessment regime of the Waste Framework Directive (75/442/EEC), as amended, the adequacy of which was not challenged at the time. It provided information in general terms about likely emissions from the proposed plant, but no detailed assessment of them or of their environmental impact, relying upon the integrated pollution control (“IPC”) regulatory regime then in force under Part I of the Environmental Protection Act 1990 to which it would become subject on seeking and obtaining authorisation to operate the plant when built. In 1999 the Agency authorised Rugby Ltd to operate the plant under that regime and set conditions to ensure the use of best available techniques without excessive cost to prevent or reduce to a minimum the release of prescribed substances into the environment, including emissions of dust from around the site as well as emissions from the main stack (chimney) serving its kiln.

By 2000 Rugby Ltd had built the plant, and in February of that year began to operate it pursuant to the IPC authorisation. However, in the same year a new statutory regime (“the PPC regime”) was introduced by the PPC Regulations in implementation of the EU Integrated Pollution Prevention and Control Directive 96/61/EC (“the IPPC Directive”), introducing stricter substantive and procedural controls than those governing the IPC regime. In order to continue its operation of the cement works, Rugby Ltd had, therefore, to apply now to the Agency for a permit under the new regime. It did so on 21^st August 2001, but also sought permission to continue its operation in one respect in a different way from before and permitted under the IPC authorisation, namely to burn in the plant’s kiln waste tyres in partial substitution for conventional fuels then used.

Pursuant to requirements in the PPC Regulations, to which I shall return, the application included a description of sources of emissions from the main stack from the burning of tyres and conventional fuels. It also included information about emissions of potentially health damaging “particulates” (dust) from low level point sources (referred to as “PM10s” by reference to their maximum diameter of 10 microns and referred to throughout this judgment as “low level emissions of dust”), all the subject of EU and UK environmental control. The application also included incomplete data for and projections of these emissions, and stated that -

“[t]he maximum predicted contribution to ambient concentrations of the particulate matter is insignificant in terms of both the ambient air quality and the assessment criteria.”

The application also contained information on the measures proposed to prevent or minimise the emissions.

As required by the PPC Regulations, there was public consultation on Rugby Ltd’s application, copies of which and its supporting documents were made available to consultees and publicly. In the course of what turned out to be nearly a two year period of consultation, members of the public and various statutory consultees, including local public health bodies, expressed concern about emissions from the plant. The proposal to burn waste tyres as a partial substitute fuel engendered considerable opposition from local Rugby residents, whose concern was directed principally at the likely impact of emissions from the main stack. But there were also a few expressions of concern about the impact of the current emissions of low level dust. The Agency would reflect the main thrust of the public concern in the following passage in paragraph 1.6 of its Decision Document:

“… Almost without exception, the representations received during this consultation focused on the proposed use of tyres as a fuel … much of the emphasis of the consultation related to the potential health effects of the use of tyres at the installation. …”

As a result, the Agency sought further information from Rugby Ltd, as it was empowered to do under the PPC Regulations, about emission points, information that Rugby Ltd provided mainly in relation to the main stack. Rugby Ltd’s response was also made available to consultees and publicly. The Agency made no further formal request to Rugby Ltd in the course of its public consultation process for information about projected emissions.

Because of expressions of concern in the consultation about the likely impact on the environment of the introduction of burning of tyres, and as part of its decision-making exercise, the Agency, in October 2002 asked its Air Quality Monitoring and Assessment Unit (“AQMAU”) to review the projections of Rugby Ltd, upon which it had relied in predicting insignificant environmental effect. AQMAU did that in relation to emissions from the main stack and of low level dust. In the course of its review, AQMAU indicated that, in order to check and/or make predictions as to the environmental impact of the proposal, it needed more information, including data as to the low level emission points and as to Rugby’s projections. The Agency then obtained this, and other, factual information for AQMAU from Rugby Ltd, which was provided at a site visit and in writing. This information - unlike that which it had earlier requested and received from Rugby Ltd - was not made available to the public for comment.

In November 2002 AQMAU produced a report (“AQMAU 1”) on the environmental impact of the proposal to the staff of the Agency. The Agency contended before the Judge and again to this Court that this Report was intended by AQMAU as a draft for what was to be a further Report, “AQMAU 2”. The Judge did not entirely reject that contention, but it is plain from paragraphs 47, 51 and 64 of his judgment, that he regarded it with some scepticism. In addition to the predicted emissions from the main stack, resulting from the new proposal, the tyre burning trial - the main concern of those actively involved in the public consultation process - it dealt with low level emissions of dust from a number of sources at the plant. The Report indicated that there was a risk of emissions from the low level dust sources – not from tyre burning emissions from the main stack – exceeding National Air Quality Objectives. It stated that the low level dust emissions dominated the contribution to dust levels and that the risk of them exceeding the Objectives was significant even when the plant was operating normally. The Report indicated that the environmental impact at ground level of emissions from the main stack would be “small compared to air quality objectives”, but that when the emissions of low level dust were also taken into account, the “predicted ground level concentration levels … [would be] dominated” by the latter rather than emissions from the stack.

The Agency did not seek further information from Rugby Ltd in the light of AQMAU’s revelation to it in AQMAU 1 of the potential significance of the low level emissions of dust. Nor did it make that Report available to the statutory or public consultees. However, the public did have access to the earlier data provided by Rugby Ltd as part of its application and its response to the Agency’s request to it for more information during the consultation period, upon which AQMAU had, in large part, made its predictions of emissions and their environmental effect

In January 2003 AQMAU provided the Agency with AQMAU 2, a much shorter Report. This Report, which was seemingly based on the same information as AQMAU 1, predicted that “within model uncertainty”, the emissions from the main stack, including those from tyre burning, were not likely to exceed the relevant air quality objectives, but that, because of “the high background concentrations” of dust from the low level sources, the air quality objectives for dust were “likely to be exceeded”. On the face of it, AQMAU, in producing that Report, did not rely upon any further factual material not available to the public in the consultation process.

The Agency, following its receipt of AQMAU 2, informed the interested public that it had undertaken a review of Rugby Ltd’s data and projections submitted with its application for the permit, but did not indicate the precise nature or outcome of that review. Indeed, in February 2003, it declined to give details to a member of the public on the grounds that the information was “integral” to the decision it had yet to make and that to release it in advance would be “prejudicial” to its deliberations, a prejudice that the Judge, in paragraphs 52 and 63 of his judgment, rightly did not accept.

On 12^th August 2003 the Agency issued its Decision Document and a conditional PPC permit. The conditions included, as I have indicated, a requirement that the introduction of tyre burning should be subject to a successful trial, the imposition of limits for, among other emissions, those of dust from low level sources, and requirements to take certain precautions and to employ various technologies for minimising emissions, all with a view to securing “best available techniques” for minimising pollution from the plant. These conditions imposed stricter environmental controls than the IPC authorisation they replaced.

In its Decision Document, the Agency concluded that the use of tyres as a partial substitute for conventional fuel in the kiln, in conjunction with low level emissions of dust, would have no significant impact on the environment and would involve no significant risk to human health. It also expressed the view that the new controls it was imposing would, if anything, constitute an environmental improvement, a conclusion which the Judge, on the evidence put before him, appears to have accepted.

The Agency, in its summary of its reasons in the Decision Document for the grant of the conditional permit, stated that it had considered the matter in two stages, first the application to operate the kiln on the existing basis under a PPC permit, and secondly, the issues arising from the proposal to introduce tyre burning following a successful trial. As to the latter, it summarised its conclusion in paragraph 1.7 of the Document:

“… conditions can be included in the Permit that will ensure that the operation of the Installation will be controlled by the application of all appropriate preventative measures, particularly through the application of Best Available Techniques …to ensure that emissions are prevented or, where that is not practicable, that they, and the Installation’s impact on the environment as a whole, are reduced and that no significant pollution is caused.”

The Agency, in paragraph 1.4 of the Document, explained that if, and only if, a trial established that it would cause no net environmental detriment compared with the “baseline” for conventional fuels already in use, Rugby Ltd could proceed to permanent use without further application. In paragraph 1.8 of the Document, it recorded:

“… the Agency has satisfied itself (subject to satisfactory completion of the trial) that the use of tyres in partial substitution for coal and petroleum coke … will not cause any net environmental detriment to the emissions such that the environmental impact of the Installation is materially increased, and the trial may therefore proceed, subject to those additional conditions deemed appropriate by the Agency for the specific circumstances of the trial. Indeed, the Agency anticipates … that any measurable environmental effect of the use of tyres as fuel at the Installation is likely to be positive. …”

The Agency also set out in paragraphs 7.154 – 7.159 of the Decision Document some of the predictions derived from AQMAU’s work of low level emissions of dust and their environmental impact. In those paragraphs the Agency explained that its (i.e. AQMAU’s) predictions were on the assumption that all sources or releases would be emitting dust at the same time, (Footnote: ¹) all emissions would be at the maximum permitted levels and all dust was PM10. The Agency cautioned that the cumulative effect of those emissions warranted further investigation, but expressed the view that the assumptions were conservative, and unlikely in practice to exceed the relevant air control limits.

Mr David Wolfe, on behalf of the appellants, has maintained that the Decision Document, by downplaying, without identifying, the implications of the advice given to it by AQMAU in AQMAU 1 and 2, perpetuated the denial to the public of adequate information to enable it fully to evaluate and understand those Reports.

The application for permission to claim judicial review of the Agency’s grant of the conditional permit was made in October 2003 in the name of the first appellant, acting, as I have said, as nominal claimant on behalf of himself and a large number of Rugby residents opposed to the application for the PPC permit. As a result of developments in the course of the hearing of this appeal - developments that I need not rehearse in this judgment - Mrs Lilian Pallikaropoulos, a leading member of a local pressure group opposing the application, was joined with him as claimant and appellant.

The application for permission to claim judicial review was expressed simply as a challenge to the permit. However, the claimants’ pleading of their case at that stage focused on the part of the application relating to the burning of waste tyres. The statement of facts and grounds accompanying the proposed claim stated, in paragraph 1, “[t]the decision impugned is one of … [the Agency] permitting … [Rugby Ltd] to trial burn waste tyres at its plant in Rugby”. The claimants, the Agency, the other Respondents and Rugby Ltd prepared for trial on that basis.

It was not until May 2004, over six months after the proceedings had begun and some ten months before the hearing before Lindsay J in March 2005, that the Agency disclosed AQMAU 2 as part of its filed evidence. However, it did not disclose the existence of AQMAU 1 until a day or two before the start of the hearing. The more detailed treatment in the latter (draft) Report of the contribution to the risk of environmental harm from the low level emissions of dust, led to a change in the main thrust of the claim from then on.

On the second day of the hearing before Lindsay J the claimants sought and were granted permission to reformulate their grounds of challenge in relation to all emissions from the plant, including low level emissions of dust and the Agency’s alleged failure to make adequate disclosure in its statutory public consultation process as to their predicted effects, in conjunction with those from the main stack, on the environment.

The Judge granted permission for the amendment of the claim, found that the Agency, in withholding AQMAU 1 and 2 from the consultation process, was not in breach of any EU obligation, as had been contended before him, but was in breach of its common law duty of fairness to provide fully informed consultation before making its decision. However, he withheld relief in respect of that breach in the exercise of his discretion.

The evidence at trial satisfied the Judge that such possible environmental problem as was suggested by AQMAU 1 and/or 2 did not arise from predicted tyre burning emissions from the main stack, but from low level emissions of dust. Indeed, in the following passage in paragraph 31 and also elsewhere in his judgment, he found that the emissions from tyre burning in themselves had no significant adverse effect on the environment, a finding that the appellants do not challenge in the appeal:

“… it is plain, as Mr Wolfe’s switch away from tyre burning as the principal ground of complaint hints at, that tyre burning in itself as a fuel has no significant adverse effects on the environment and, indeed, overall may even have beneficial effects on the environment.”

However, on the question of the Agency’s breach of a common law duty to provide sufficient information for public consultation, the Judge was concerned about the apparent lack of frankness on the part of the Agency in not alerting the public much earlier to the implications of the AQMAU Reports for possible contribution to environmental damage from low level emissions of dust. He said, at paragraph 50 of his judgment:

“… it is important to have in mind that it was Aqmau 1 and Aqmau 2 that brought out that for objectors to concentrate only on the burning of chipped tyres was likely to be unrewarding for them and that the area of greatest vulnerability of the PPC application was that of the emission into the air of those small particulates which it is convenient to call PM10 particulates, in particular the emission of them not from the main stack but from sources far closer to the ground …. Objectors, if I may so put it, had a far better tree to bark up than the burning of tyres and had they seen Aqmau 1 or Aqmau 2 before the decision document they would have understood that. If I may switch metaphors, the Aqmau reports could only have been important cards; should they not have been laid face up on the table even before judicial review was sought?”

The matter now comes before this Court with permission of Keene LJ on three questions: 1) whether the Agency was in breach of the Environmental Impact Assessment Directive (Directive 85/337/EEC, as amended by Directive 97/11/EC) (“the EIA Directive”); 2) whether it was in breach of the IPPC/PPC regime (see paragraph 3 above); and 3), if in breach of neither but of a common law duty of fairness, whether the Judge wrongly refused relief in the exercise of his discretion. As to the first two issues going to alleged breaches of EU law, the appellants maintain that, if they are successful in showing that the Judge should have found the Agency in breach of either regime, he would have had no discretionary power to refuse relief. See the distinction drawn by the House of Lords in Berkeley v Secretary of State for the Environment [2001] 2 AC 603, in particular, by Lord Hoffmann at 615C – 616F, contrasting the court’s lack of such discretion in relation to a breach of an obligation imposed by the EIA Directive with the discretion, albeit narrow, when concerned with breach of a purely domestic obligation.

The first issue for determination is whether the PPC permit is unlawful for want of an environmental impact assessment pursuant to the EIA Directive.

The EIA Directive, by Article 1.1, governs:

“… the assessment of the environmental effects of those public and private projects … likely to have significant effects on the environment.”

It is important to have regard to the scope and rigour of the obligation cast on Member States by the EIA Directive. Article 2(1) requires that:

“2.1

Member states shall adopt all measures necessary to ensure that before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature size or location are made subject to the requirements of development consent and an assessment with regard to their effects. These projects are defined in Article 4. ”

The rigorous obligation thus cast on Member States to enforce the Directive, which goes beyond preventing breach of it, but also to nullifying the unlawful consequences of any such breach, has been emphatically underlined by the European Court of Justice in R(Wells) v UK [2004] Env LR 27, at paras 64 and 65. As Mr Wolfe submitted, the obligations on Member States - here through the Agency - to enforce the IPPC Directive, can be no less rigorous.

The “assessment” referred to in Article 2.1 is an environmental impact assessment, which, as Articles 2.2 and 2.2a indicate, may be incorporated in an existing domestic planning control regime or undertaken by Member States as a discrete regulatory procedure.

Whether the EIA Directive was engaged in this case turns on whether Rugby Ltd’s application for a PPC permit was in respect of a “project” within the meaning of that word as used in Article 1.2 and as identified in Annex II, and also whether the permit-granting process of the Agency under the PPC Regulations was one leading to “development consent” within Articles 1 and 2.

The word “project” is defined in Article 1.2 as:

“the execution of construction works or other installations or schemes,

other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources:”

And “development consent” is defined in Article 1.2 as:

“… the decision of the competent authority or authorities which entitles the developer to proceed with the project”

Articles 2.1 and 4.2 provide for non-mandatory assessment of projects listed in Annex II, requiring Member States “to determine through –

“(a)

a case-by-case examination, [and] or

(b)

thresholds or criteria set by the Member State

whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. …”

I shall return later in this judgment to the material requirements in Articles 5 to 10 for an environmental impact assessment.

The appellants’ case on this aspect of the appeal may be summarised as follows:

The Agency’s case, also in summary, is that:

I shall consider those issues in turn.

As I have said, when Rugby Ltd first sought planning permission for the cement works resulting in its grant in 1996 it submitted to the Council as part of that application an environmental statement pursuant to the EIA regime. Its later proposal included in its 2001 application to the Agency for the PPC permit did not, as a matter of domestic law, necessitate a further planning permission because it did not amount to a “material change of use”. Under domestic law at least there was, therefore, no planning requirement or occasion for a fresh environmental statement as to the likely impact of tyre burning in the plant’s kiln. If Rugby Ltd’s proposal to burn waste tyres in its plant in conjunction with operation of the plant for the construction of which it already had planning permission through a process including an environmental statement, fitted the definition of a “project” in Article 1.2, there would still be the question whether it was a project of any of the types listed in Annex II, the only two possible candidates from which are:

The Judge, at paragraph 19 of his judgment, considered that a “project”, as defined purely in Article 1.2, when read with the various activities listed in Annexes I and II, was one to which some physical change or material change of use in planning terms is an integral element, and that, on that account alone, a change in the fuel used in the kiln at the plant could not be a “project” governed by the Directive. However, I doubt whether that is necessarily so, having regard to the broad purpose of the Directive; see Kraaijeveld [1996] ECR I-5403, paras 31 and 39. It is clear when considering the “projects” covered by Article 4 by reference to their inclusion in Annexes I and/or II, that they may include operation of undertakings of various sorts or changes falling short of a material change of use that may have significant adverse effects on the environment, not just the construction of such undertakings. The European Court of Justice has so held, for example when considering the Habitats Directive (Council Directive 92/43/EEC) in relation to mechanical cockle fishing; see Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landboouw, Natuurbeheer en Visserij [2004] ECR 1-7405, para 25, which was not cited to the Judge. See also Commission v Germany [1995] ECR I-2189, paras 34, 35, 41-43 and 45, applying the Directive to significant alterations to an existing coal-fired power station.

More to the point, the Judge held, at paragraphs 20 – 32 of his judgment, that a change in the fuel used in the kiln at the plant could not, in itself, be a “project” “for the disposal of waste” under paragraph 11(b) of Annex II, or a “change or extension” in an “[i]nstallation .. for the manufacture of cement” that might “have significant adverse effects on the environment” within paragraph 13 of Annex II and paragraph 5(b) of Annex I, since, on the evidence and case put to him in support of the claim, the partial change of fuel in itself had no significant adverse effects on the environment. He added that the project, if any, was one for waste recovery rather than waste disposal, a distinction which, though not expressly drawn in the EIA Directive, could be imported into it from other Community provisions, including the Waste Framework Directive and Community and domestic jurisprudence. He, therefore, concluded, in paragraphs 30 and 32 of his judgment, that the Agency had had no obligation to consider whether an environmental impact assessment was required under the Directive.

Mr Wolfe submitted that the effect of the material provisions in the EIA Directive is that, where an existing project undergoes a change, the consent required for that change can “trigger” a need for an environmental impact assessment where the change either falls within paragraph 13 of Annex II or newly brings the project within another paragraph in the Annex. His argument was that a “project” within the meaning of Article 1 of the EIA Directive could be an “[i]nstallation .. for the disposal of waste” within paragraph 11(b) of Annex II or a “change or extension” of a project within paragraph 13 of Annex II, namely an “[i]nstallation .. for the manufacture of cement” that might “have significant adverse effects on the environment”. As to the latter, he maintained that its function is to deal with intensification of an existing authorised use, as it could in the domestic planning regime, rather than change it into a new use within another paragraph. He argued that the effect of this proposal was to turn an installation originally permitted as an installation for the manufacture of cement also into an installation “for the disposal of waste” by incineration, of the waste tyres - a new “project” “for the disposal of waste” within paragraph 11(b). (Footnote: ³) In doing so, he challenged the Judge’s approach, at paragraphs 28-29 of his judgment, in distinguishing between waste “disposal” and waste “recovery” for the purpose of this Directive. He pointed out that the EIA Directive makes no such express distinction, unlike other EU instruments, such as the Waste Framework Directive.

In the result, Mr Wolfe submitted that the Judge erred as a matter of EU law in deciding that the proposal to burn waste tyres in the plant kiln was not a “project” governed by the EIA Directive so as to require public consultation on an adequate environmental (impact) statement covering, inter alia, the low level emissions of dust. He maintained that the Judge should have quashed the permit for breach of the Directive, a breach in respect of which he had no discretion to refuse relief. At the very least, he argues, the Court should exercise its discretion to make a reference to the European Court of Justice on the meaning of “project” in its application to the issues thrown up by this case.

Mr David Elvin QC, on behalf of the Respondents, and Mr Nigel Pleming QC, on behalf of Rugby Ltd, submitted that the PPC application did not engage the EIA Directive, and that, in any event, the Agency would not have been obliged to disclose the AQMAU Reports as part of any environmental assessment process begun by an environmental impact statement. They maintained that the use of tyres as a partial substitute fuel is not a “project” within the Article 1 definition because it does not fall within any of the categories of project listed in Annex I or Annex II of the EIA Directive. It is not, even in part, an installation “for the disposal of waste” within paragraph 11(b) of Annex II or a change of a project amounting to an “[i]nstallation .. for the manufacture of cement” within paragraph 13 of Annex II, still less one that may “have significant adverse effects on the environment” as required for such a change.

As to paragraph 11(b), Mr Elvin and Mr Pleming submitted that the proposal to burn tyres was not a candidate for “an installation for the disposal of waste”, but merely incidental to the purpose of manufacture of cement at the plant. Support for that argument, though not entirely in point as the Judge observed, at paragraph 29 of his judgment, may be seen in R v Environment Agency, ex p Gibson [1999] Env LR 73, per Harrison J at 98, in a judgment later approved by the Court of Appeal in R v Lowther, ex p Durham County Council [2002] Env LR 13, per Lord Phillips MR, as he then was.

Alternatively, Mr Elvin and Mr Pleming submitted, if and to the extent that the proposal might constitute a project separate from that of the manufacture of cement, it was concerned with waste recovery, not waste disposal, a distinction drawn in European environmental law, notably in the Air Framework Directive (84/360/EEC). (Footnote: ⁴)

As to the alternative suggestion that the proposal amounted to a change in the sense of an addition of waste disposal to the cement manufacturing use of the plant so as to bring it within paragraph 13 of Annex II, Mr Elvin and Mr Pleming submitted, consistently with their argument under paragraph 11(b) of Annex II, that the introduction of tyre burning as a partial substitute for conventional fuels could not amount to such a change or, in any event, to a change that might “have significant adverse effects on the environment”.

As a back-drop to the technical arguments occasioned by this issue and the decision of the Judge to refuse relief it is helpful to keep in mind, as Mr Pleming observed when opening his submissions, that the claimants’ case under this head can at best relate only to that part of the Agency’s decision conditionally permitting the burning of waste tyres. If Rugby Ltd’s application had been simply for the continuation of its plant in Rugby under the new PPC regime, there would have been no possible argument of any “project” falling within the scope of the EIA Directive so as to require an environmental impact assessment. Thus, the claimants’ case, as they have acknowledged, is specifically predicated on the burning of waste tyres. Continuation of operation of an existing plant without any additional works or changes could not be such a “project”. Thus, it is difficult to see what, if any, bearing the claimants’ reliance on the EIA Directive could have had on the Judge’s decision in the exercise of his discretion to refuse relief, since the defect in respect of which relief was sought before him, failure to consult adequately as to the low level emissions of dust, did not relate and was not relevant to the Agency’s decision whether to permit the burning of waste tyres, the only possible candidate for engaging the EIA regime.

In my view, even if the introduction of tyre burning in this case could, as a change in the manner of operating an installation, constitute a “project” within Article 1.2 of the EIA Directive, it is plainly not within “Installations for the disposal of waste” under paragraph 11(b) of Annex II or a change or extension of an “installations .. for the manufacture of cement” within paragraph 5(b) of Annex I that may have significant adverse effects on the environment” within paragraph 13 of Annex II, the only two possible candidates for a “project” listed in the Directive.

The tyres used as a partial substitute fuel at the plant are – and are conceded by the Agency and the other Respondents to be - “waste” for the purpose of the Directive. But, as Mr Elvin observed, that use does not, even in part, convert or make the plant, in addition to being an “Installation .. for the manufacture of cement” within paragraph 5(b) of Annex I, also an “Installation ..for the disposal of waste” within paragraph 11(b) of Annex II so as to constitute it a further “project” requiring an environmental impact assessment under the EIA Directive. In my view, the essential purpose and process of the plant were, on the evidence before the Judge, the manufacture of cement, not the disposal by incineration of waste tyres, which was simply ancillary to that purpose and process.

On this issue, though Gibson and Lowther, on their facts and issues, may not be entirely in point, there are passages in the judgments in both cases of general application regardless of the precise formulation of the governing instrument in question.

In Gibson, which concerned the use of a mixture of waste solvents as a support fuel in two manufacturing processes, the manufacture of cement and the manufacture of lime, Harrison J said at 98 that he found “the concept of a single plant being treated as two plants requiring separate authorisations very difficult to accept”, and that, in his view, “on any sensible analysis”, the plants were lime production plants, not plants for the incineration of waste.

And in Lowther, which concerned a similar issue in a planning context, namely whether the burning of waste on a significant scale constituted a separate land use even though it formed an integral part of another process, the Court held that it could do so, but that in the circumstances of the case it did not. (Footnote: ⁵) Lord Phillips, with whom Pill LJ and Sir Martin Nourse agreed, indicated in paragraphs 57 and 58 of his judgment, the fact-sensitive nature of the issue:

“57.

In some circumstances waste may be disposed of in a process which results in an outcome beyond the mere disposal of the waste, but where the disposal of the waste is the paramount object of the exercise. The fact that methane gas is recovered from a waste tip will not necessarily convert the land use from that of waste disposal to that of gas production. The recovery of gas may be no more than incidental or ancillary to the disposal of the waste. In such circumstances the use of the land can properly be described as waste disposal.

58.

In some circumstances an operation may involve a nice balance between the objective of waste disposal and the ultimate objective of the operation. In those circumstances it may be correct to hold that the land is being subjected to two uses, waste disposal and the ultimate objective. The burning of slaughtered cattle in power stations may be an example of such a situation.”

Lord Phillips added that, in the circumstances of that case, to postulate that the designation of the fuel in question as waste resulted in a separate use of land was unreal. As Pill LJ also observed, at paragraphs 92 to 95 of his judgment, whilst waste disposal used as a process to facilitate a manufacturing process may result in two distinct planning uses –

“the mere fact that a fuel used in the manufacturing process is classified as waste … does not of itself necessarily lead to the conclusion that the use of the fuel creates a land use distinct from that of manufacturing”.

He concluded that, in the circumstances of that case, disposal by use as fuel should properly be categorised as “an integral part of the process of lime manufacture”.

It is true that the potential for environmental damage from potentially polluting waste, whether or not categorised as hazardous, is a matter over which EU law prescribes and exerts a particularly rigorous control. The UK, as provided for or contemplated by Article 2.2 and 2.2a of the EIA Directive, has employed its domestic planning procedures as the means of implementing the Directive’s provisions and controls. However, the critical decision in many cases must, as a matter of common sense, turn on the particular nature, manner and extent of the use of waste sought to facilitate the manufacturing process relative to that process itself, and whether and what, if any, significant adverse effects it might have on the environment. In the circumstances of this case, it is now common ground that the only new activity put forward as a “project” so as to engage the EIA Directive is the use of waste tyres as a partial substitute fuel for the manufacture of cement. The conclusion of the Agency and finding of the Judge (both unchallenged in these proceedings) are that tyre burning in itself would have no significant adverse effects on the environment. In the circumstances, in my view, the appellants do not have the beginning of a case that the introduction of tyre burning at the plant takes it beyond an activity ancillary to the manufacture of cement so as to constitute a discrete project “for the disposal of waste” or to change the authorised use/project for the manufacture of cement in a way that might have significant adverse effects on the environment.

As I am firmly of that view, I do not need to express a concluded view on Mr Elvin’s and Mr Pleming’s alternative submission that, in any event, paragraph 11(b) of Annex II is not a candidate for reliance upon the EIA Directive because it is concerned with waste recovery, not waste disposal, a distinction which, as I have noted, is drawn elsewhere in EU environmental law, notably and expressly in the Air Framework Directive. However, it may be of assistance to say that, notwithstanding that that Directive, unlike the EIA Directive, provided separately for cement production plants and waste incineration plants, a commonsense as well as purposive interpretation of the latter points in the same direction, subject to the same or similar reasoning exhibited in Gibson and Lowther as to the relationship and relative significance, one with another, of the uses in question.

If I am right in my view that Rugby Ltd’s proposal to burn waste tyres as partial substitute fuel for its process of manufacturing cement at the plant did not, for the reasons I have given, require the Agency to consider an environmental impact assessment, it is not necessary to consider and rule on the appellants’ complementary contention that the United Kingdom, by leaving to its domestic planning process the machinery for triggering, and the manner of conduct of, environmental impact assessments in waste cases governed by the EIA Directive, has failed properly to implement the Directive.

The EIA Directive has been domestically implemented, so far as material, through the town and country planning regime, first by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (SI 1988/1199) (“the 1988 AEE Regulations”) and then by the Town and Country Planning (Environmental Impact Assessment England and Wales) Regulations 1999 (SI 1999/ 293) (“the 1999 EIA Regulations”). Regulation 4 of the 1988 AEE Regulations and Regulation 3 of the 1999 EIA Regulations and Schedules 1 and 2 to each of the Regulations reproduced broadly the development control provisions in Article 2.1 of and Annexes I and II to Article 4 of the EIA Directive.

Mr Wolfe acknowledged that Rugby Ltd had submitted an environmental statement to the Council pursuant to the EIA regime as part of its 1995 application leading to the grant of the 1996 planning permission and the IPC authorisation of 1999. He also acknowledged that the burning of waste tyres, the subject of the current application, is not, as a matter of domestic law, a material change of use requiring a fresh or amended planning permission or a fresh environmental statement or environmental impact statement. He submitted that the EIA Regulations, confining, as they do, the EIA requirements to the planning process, have not fully implemented the EIA Directive, the direct application of which must be to vitiate the PPC permit granted by the Agency for want of an environmental impact statement, whether or not the proposal in the application amounts to a domestic “material change of use”. Put another way, he maintained that there is or may be a “gap” in our domestic law resulting in a failure fully to implement the Directive, in particular Article 4 of it requiring member states to determine through a case-by-case application, or thresholds or criteria set by them, whether and what environmental impact assessment is required (see paragraph 32 above).

Mr Elvin, whose submissions were adopted by Mr Pleming, maintained that the EIA Directive had been adequately transposed into domestic law for this purpose, through the town and country planning regime prohibiting the grant of planning permission without the environmental information required in both EIA Regulations. Such information included that as to development involving material changes of use falling within Article 4 and Annexes I and II of the Directive.

As I have indicated, Articles 2.2 and/or 2.2a of the EIA Directive specifically leave to Member States the option whether to introduce procedures specifically designed for the purpose of fulfilling their obligation under the Directive to consider the need, on a case-by-case basis or on specific thresholds or criteria established by them, or whether to integrate such a system into its existing domestic procedures. I would hold, as Mr Elvin and Mr Pleming maintained, that our domestic planning system, including its concepts of material change of use and operational development set out in section 55 of the Town and Country Planning Act 1990 (“the 1990 Act”), provide the appropriate procedures for obtaining and regulating development aspects of environmental impact that may engage the EIA Directive. As I have briefly indicated, regulation 1, the interpretation regulation, defines “EIA development” by reference to a large number of potentially environmentally damaging activities listed in Schedules 1 and 2 to the Regulations, all, in my view, capable of being considered in the context of their potential qualification as operational development or material change of use within the 1990 Act. That that was the intention also seems to have been the view of those responsible for Planning Policy Statement 23, Planning and Pollution Control (“PPS 23”) setting out, in paragraph 2, up-to-date Government policy on pollution control and planning as to the relevance of environmental matters as material considerations going to a material change of use, in particular –

“any consideration of the quality of land, air or water and potential impacts arising from development, possibly leading to impacts on health, is capable of being a material planning consideration, in so far as it arises or may arise from or may affect any land use.”

Also relevant in this context are the observations of Lord Phillips in Lowther, at paragraphs 57 and 58 that a change of use of fuel in an existing manufacturing process, depending on the circumstances, may or may not amount to a material change of use.

Thus, in my view, the United Kingdom has in this respect adequately implemented the EIA Directive into its planning system as the appropriate procedure for obtaining and regulating development consent within the meaning of the Directive. Thus too, there is no gap in the transposition of the Directive, since if a change of use of fuel were determined in the circumstances of any case to be an operational development or material change of use requiring planning permission within section 55 of the 1990 Act, the 1999 EIA Regulations implementing the EIA Directive would apply, provided that such a change is capable of amounting to a “project” for the purpose of the Directive. To the extent, if at all, that there is any discrepancy between the two regimes, the Directive, in its highly prescriptive definition of “project” may prove to be the more narrow. In the circumstances of this case – given the “case-by-case” approach contemplated by Article 4 - the Agency’s unchallenged conclusion, as expressed in paragraph 1.8 of its Decision Document (see paragraph 14 above) that there would be no net environmental detriment from the introduction of waste tyres as a partial substitute fuel, rightly ruled out the need for any further assessment on the only candidate for an EIA project, the proposal to burn tyres. Thus, I would also hold, if necessary, that in the circumstances of the case the grant of the PPC permit did not involve the grant of “development consent”, the relevant development consent having been the 1996 planning permission, for which an environmental statement had been provided pursuant to the Directive, by the 1988 AEE Regulations.

In expressing that view, I have in mind - though, in the circumstances I have mentioned, it is not critical to my reasoning - the margin of appreciation allowed by Article 249 EC as to the form and methods by which Member States give effect to Directives. I would, therefore, hold, if it were necessary to do so, that the United Kingdom has not failed properly to implement the Directive so as to import into our domestic law or otherwise enforce independently of its planning control procedures an obligation on the Agency to call for or undertake an environmental impact assessment statement. I add that, in the circumstances of these provisions and of this case, I am not deterred from expressing that view by the fact that there is said to have been a reference of Lowther to the European Court of Justice under Article 234.

However, as I have already indicated, I decide this issue principally on the basis that the only possible candidate for control under the EIA Directive, the Agency’s grant of a conditional permit to Rugby Ltd for the trial and, if successful, permanent introduction of waste tyres as a partial substitute fuel, did not engage the Directive since it was not a “project” as prescribed by Article 4 and Annex II.

Articles 5 and 6 of, and Annex IV to, the EIA Directive, which have been effectively implemented by regulation 10 of, and Schedule 4 to, the PPC Regulations, provide for environmental impact assessments. For those projects which, by virtue of Article 4, require them, they oblige Member States to adopt measures necessary to ensure that developers supply certain minimum information and that such information is made available for public consultation. Article 5.3 requires the following minimum information:

“… - a description of the project comprising information on the site, design and size of the project,

- a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,

- the data required to identify and assess the main effects which the project is likely to have on the environment,

- an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects,

- a non-technical summary of the information mentioned in the previous indents. …”

The material corresponding requirements in the PPC Regulations are set out in paragraph 1(1) of Schedule 4 as follows:

“… (g) the nature, quantities and sources of foreseeable emissions from the installation or mobile plant into each environmental medium, and a description of any foreseeable significant effects of the emissions on the environment.

(h)

the proposed technology and other techniques for preventing or, where that is not practicable, reducing emissions from the installation or mobile plant;

(i)

the proposed measures to be taken to monitor the emissions;

(j)

a description of the measures to be taken for the prevention and recovery of waste generated by the operation of the installation or mobile plant;

…

(p)

a non-technical summary of the information referred to in the previous sub-paragraphs.”

The Agency, in paragraph 10.38 of its Decision Document, having observed that, under UK law an environmental impact statement was not required by the PPC Regulations or planning legislation in relation to the burning of waste tyres, went on to state:

“…in any event the Agency has taken into account, both generally and in relation to the use of tyres, the issues that would generally have been identified by any Environmental Statement, had one been required, so far as is permissible within the PPC regulatory regime.”

In the remainder of that paragraph and in paragraph 10.39, it set out, one by one, those issues or matters and the circumstance amounting, in its view, to compliance with them had an environmental impact statement been required, namely -

It is plain, therefore, that the Agency gave careful thought to the implications of an environmental impact statement had it been required and undertaken in a formal sense. In paragraph 40, it stated:

“The Agency is satisfied that the Application substantially complied with the requirements of Article 5(3) and Annex IV of the EIA Directive.”

The Judge, in response to the Respondents’ alternative case in the event of a finding against them that the application engaged the EIA Directive, added, at paragraph 33 of his judgment, that, if he had had to consider it, he would likely have held that the earlier assessments for the 1996 planning permission and the 1999 IPC authorisation and, as concluded by the Agency, the application for this PPC permit “and its components”, would have amounted to substantial compliance for the purpose.

Mr Elvin and Mr Pleming sought, if necessary, to rely on the Agency’s and the Judge’s conclusion that the information available and provided was a sufficient proxy for an environmental impact assessment had one been required. They relied in particular upon the obligations imposed by the EIA Directive and effectively transposed by PPC Regulations upon a developer to provide information to the decision-maker in the form of an environmental statement available for public consultation, the equivalent of which, they maintained, Rugby Ltd provided to the Agency in its permit application. Mr Elvin referred the Court to a number of authorities indicating that whether such an environmental assessment is required and, if so, whether it is adequate for the purpose is a matter of judgment for the decision-maker, subject only to challenge on Wednesbury grounds.

Mr Wolfe, notwithstanding the Agency’s treatment of the matter in its Decision Document, maintained that the Agency had not purported to exercise a judgment on it, because it had been of the view that no environmental impact statement was necessary. Maybe his submission was predicated on the success of his contention before this Court that Rugby Ltd’s application was a “project” for the purpose of the Directive. Whatever the basis upon which he was putting the appellants’ case on this issue, he submitted that the Agency should have considered, at least, whether the information on the emission and effect of low level emissions of dust provided by Rugby Ltd measured up to the requirements of the Directive. Failure to do so was cause enough, he submitted, to quash the permit. He put at the fore-front of his reasoning on this, and other issues in the appeal, observations of Lord Hoffmann in Berkeley, at 615-616, in particular the following opening passage at 615:

“I said in R v North Yorkshire County Council, Ex p Brown [2000] 1 AC 397, 404 that the purpose of the Directive was ‘to ensure that planning decisions which may affect the environment are made on the basis of full information’. This was a concise statement, adequate in its context, but which needs for present purposes to be filled out. The Directive requires not merely that the planning authority should have the necessary information, but that it should have been obtained by means of a particular procedure, namely that of an EIA. And an essential element in this procedure is that what the Regulations call the ‘environmental statement’ by the developer should have been ‘made available to the public’ and that the public should have been ‘given the opportunity to express an opinion’ in accordance with article 6(2) of the Directive.”

Neither the EIA Directive nor the 1999 EIA Regulations (see regulation 20), nor the PPC Regulations imposed any obligation on the Agency, as the decision-making body, to supplement information provided by a developer for the purpose of public consultation with any workings of its own in the form of an environmental impact assessment such as, for example, the AQMAU Reports. As to the information provided by Rugby Ltd and its conformity with EIA requirements if they had been applicable, the approach of the English courts has been that an environmental statement is sufficient if it contains information to indicate the likely main effects of the project on the environment. Whether it is sufficient for that purpose and, indeed, whether an EIA is required is a matter of judgment for the decision-maker and subject to challenge only on Wednesbury grounds; see e.g. R(Bedford & Clare) v Islington LBC & Arsenal FC [2002] EWHC 2044 Admin, per Ouseley J at para 199-203; R (Blewett) v Derbyshire County Council [2004] Env LR 569, per Sullivan J at paras 41 and 68; and R(Jones) v Mansfield BC [2004] Env LR 21, CA at para 17.

I would hold that it was open to the Agency to conclude, as it did, that if Article 5.3 of, and Annex IV to, the Directive governed this application, there had been substantial compliance with their requirements. It is true that the environmental statement provided by Rugby in the 1995 planning application, upon which Mr Elvin placed some reliance, did not provide, and could not have provided, as Mr Wolfe has pointed out, an assessment of the contribution (not then proposed) of tyre burning to the emissions from the plant and their environmental effect. Nor did it provide an assessment of any other emissions and their impacts. However, the range of information provided by Rugby Ltd in its PPC application closely follows that required by the EIA Directive of an environmental impact statement. And, as I have said, its adequacy for the purpose was a matter for the Agency. All or most of it was, as required by Article 6(2) of the Directive, made available for public consultation.

In the circumstances and for the reasons I have given, I can see no basis for saying that the Agency’s conclusion that there would have been substantial compliance with the requirements of an environmental impact assessment if required was Wednesbury irrational, or to disagree with the Judge’s contingent indication that he too would have been likely to reach the same view.

Accordingly, I would hold that the Judge correctly concluded that the Agency’s decision was not within the scope of the EIA Directive because it did not involve a “project” as listed in Annex I or Annex II. I regard that as sufficiently clear not to require a reference to the European Court of Justice, in accordance with the well-known principles expressed by the European Court itself in Sri CILFIT v Ministry of Health [1982] ECR 3415, at 3427-3432 (Footnote: ⁶), and by the Court of Appeal in R v Stock Exchange, ex p Else [1993] QB 534. Therefore, whatever, if any, uncertainty there may be as to the meaning of the word “project” in Article 1.1 of the Directive before application to it of the activities listed in Annex I or II of the Directive, does not arise for decision or, in the circumstances, a reference. If it had been necessary to decide whether, if the Directive was engaged in relation to the proposal to burn waste tyres, there was a breach of it, I would not interfere with the conclusion of the Agency or the slightly more cautiously expressed view of the Judge that there was substantial compliance.

The PPC Regulations, implementing the IPPC Directive, governing the grant of the permit, introduced, as I have said, stricter substantive and procedural requirements than those applicable under the 1999 IPC authorisation. They require an applicant for a permit to provide information to which publicity must be given and public comment invited and taken into account by the decision-maker in deciding whether to grant a permit and, if so, what conditions to impose. As to the information required from a developer, I have set out the material provisions of paragraph 1(1) of Schedule 4 to the Regulations in paragraph 64 above.

Regulation 10 and paragraph 4 of Schedule 4 empower a decision-maker on such an application to seek further information on the content and details of an application where it considers them deficient or where, say, it has information raising questions on the information given. As I have said, the Agency took this course in seeking further information from Rugby Ltd. Regulation 10 and paragraphs 4 and 5 of Schedule 4 to the Regulations contain the requirements for publicity and public consultation.

The appellants claim, in reliance upon those provisions, that the public were entitled to have an opportunity to comment on, among other matters, the adequacy of information on the predicted emissions of low level dust and an assessment of their significant effects on the environment. As to the predicted emissions, their case is that, although the original application included some information as to predicted emissions, it was insufficient for an assessment of their impact on the environment, as AQMAU pointed out when first considering it. As to impact, the appellants’ case is that the application contained no information at all, the only information about it eventually emerging long after the end of the consultation process in the AQMAU Reports withheld by the Agency from public consultation.

The appellants’ contention was that, as a result of that short-fall of information from Rugby Ltd in what was required by the PPC Regulations, the application did not comply with them. In consequence, they maintained, the Agency was in breach of its EU obligations “to take the necessary measures” to ensure compliance in two respects. First, it failed to ensure that Rugby Ltd provided it with all the information required in the circumstances under para 1(1)(g) of Schedule 4, for example, by seeking further information from it under the Schedule 4 request process. Secondly, it failed to ensure, contrary to paragraphs 4 and 5 of Schedule 4, adequate public consultation.

As to the adequacy of information and the Agency’s failure to ensure that Rugby Ltd provided it, the complaint goes, as I have indicated, both to lack of information as to the foreseeable overall emissions, including low level emissions of dust, and as to their significant effects.

The Judge, in paragraphs 38-39 of his judgment, held that the application for the permit met the requirements of the PPC Regulations, observing that it was for the Agency to decide whether the totality of the information provided was adequate to stand as an application for the purpose, citing Bedford & Clare. He said that, provided that an applicant appears to have made a bona fide and informed attempt to comply with the requirements, the Agency would not be justified in dismissing an application for want of sufficient information, bearing in mind its power under paragraph 4 of Schedule 4 to the Regulations - which it exercised in this case - to seek further information from the applicant. He concluded, on the evidence before him, that this application had been made bona fide and “did not fall so short of the regulatory requirements that it could not truly be described as an application”.

The Judge in paragraph 63 of his judgment, when considering, and finding against the Agency, on its common law duty to consult, observed:

“63.

… The [AQMAU] reports were on subjects to which the Agency could (and, at least arguably should) have required information from the Site Operator as part of or as a supplement to its application and which, had the information been acquired in that way, would have been disclosed. Abuse would obviously be possible if disclosure could be avoided by the simple expedient of the Agency doing that which should have been done by the Applicant…. “

He added, in paragraph 64, that, if the Agency had, in the light of AQMAU 1 and/or 2, sought further information in the form of air modelling from Rugby Ltd on the likely environmental effects of low level emissions of dust, that information would have had to be provided to consultees in accordance with paragraph 1(1)(g) of Schedule 4 to the Regulations. He described the Agency’s failure in that respect as “a real shortcoming”.

Mr Wolfe, whilst not challenging the Judge’s finding as to the good faith of Rugby Ltd in the composition of its application, maintained that he erred in law in ignoring the short-fall of information in it required by paragraph 1(1)(g) of Schedule 4. He complained, in particular, that it did not contain sufficient data or dispersion modelling of low level emissions of dust so as to show their impact on the environment. He maintained that if the Judge was of the mind that the AQMAU Reports revealed that the information previously provided by Rugby Ltd and not put out to public consultation failed to meet the regulatory requirements, he should not have upheld the Agency’s acceptance of the application as falling within the PPC Regulations. (Footnote: ⁷) He also submitted that, in the light of the AQMAU Reports, the Agency should, at the very least, have sought further information from Rugby Ltd and put it in the public domain in accordance with the requirement to consult. The breach was so fundamental to the validity of the permit, Mr Wolfe submitted, that the Judge, if this point as to want of adequate consultation under the Regulations had been taken before him, would have had no alternative, discretionary or otherwise, but to quash it. Alternatively, he submitted that, if the Court is uncertain about such an outcome, it should refer the matter to the European Court of Justice.

The Respondents and Rugby Ltd sought to uphold the Judge’s decision that the application complied with paragraph 1(1)(g) of Schedule 4 to the PPC Regulations. Mr Elvin, whose submissions were again adopted by Mr Pleming, observed that the provision does not require modelling of emissions and that it was a matter for the Agency to determine the adequacy for the purpose of the information provided to it by Rugby Ltd.

As to the associated argument, developed for the first time on appeal by reference to want of consultation, Mr Elvin maintained that there was nothing in the IPPC Directive or in the PPC Regulations requiring the Agency to disclose and put out to public consultation any information provided by Rugby Ltd to AQMAU not already in the public domain or indeed the AQMAU Reports themselves. It was sufficient, he maintained, as he did in relation to the EIA regime and for similar reasons (see paragraph 68 above), for Rugby Ltd to provide the level of information that it did.

In my view, the Judge, for the reasons he gave, rightly held that the Agency was entitled to regard the application as conforming to the requirements of the PPC Regulations. As he indicated in paragraphs 38 and 39 of his judgment, whether the information required by paragraph 1(1) of Schedule 4 is adequate is pre-eminently a matter for the Agency as the competent authority. In particular it is for the Agency to assess, for its task of determining whether and on what conditions to grant a PPC permit, the adequacy of the information required under paragraph 1(1)(g) on “the nature, quantities and sources of foreseeable emissions from the installation” and of the description provided of “any foreseeable significant effects of the emissions on the environment”. As Mr Pleming observed, there can be no absolute standard for the adequacy of such information or for what is “foreseeable” and “significant”. Here, as I have indicated (see paragraph 4 above), the application contained information on emissions of low level dust and on the measures to prevent or minimise them. And the Agency, pursuant to the power given to it by paragraph 4 of Schedule 4, sought and obtained from Rugby Ltd further information to enable it to undertake its own modelling predictions through AQMAU. The fact that, following the consultation process, the Agency and/or AQMAU subsequently obtained further information from Rugby Ltd to enable the latter to undertake its work of advice for the Agency does not, of itself, signify that the information provided before the matter went out to consultation was so inadequate that the application did not comply with the Regulations.

If low level emissions of dust had been at the heart of the expressions of public concern, there might have been some force in Mr Wolfe’s associated point as to want of consultation, namely that there was no or insufficient information from Rugby Ltd, apart from that emerging via the work of AQMAU in its Reports, on the likely or possible environmental impact of the low level dust emissions. However, the only new issue of substance featured in the PPC application was the proposal to trial the burning of waste tyres, and it, not the low level emissions of dust, was the key issue thrown up by the consultation exercise. In the circumstances, I can see no basis in law or in fact for the argument that the Agency failed to comply with its obligations under the PPC Regulations in treating the application as valid, which is what this complaint is about. I should add that I do not consider that the issue of the adequacy of the application for the purpose of the Regulations is apt for a reference to the European Court of Justice.

The Judge found the Agency’s failure to disclose the AQMAU Reports in the consultation process to be in breach of its common law duty to provide consultees with enough information on the proposal to enable them to make an intelligent response, albeit that he went on, in the exercise of his discretion, to refuse relief in respect of that breach. The Respondents, by their Respondents’ Notice, challenge the finding of breach.

I should note again in this context, because it bears on the essential nature of this complaint – unfairness - that, until shortly before trial, the focus of the public opposition to the grant of the PPC permit and of the complaint in the claim for judicial review was the proposed burning of waste tyres and as to the resultant emissions from the main stack. It was only with the disclosure of AQMAU 1 and 2 long after the consultation and the Agency’s decision indicating that there was no significant environmental harm to be feared from the stack emissions, and such problem as there might be stemmed mainly from the low level dust emissions, that the latter became the focus of complaint at trial, leading to the complaint of unfairness arising out of the Agency’s earlier non-disclosure of AQMAU 1 and 2.

Before considering the Judge’s reasoning and the competing submissions on it, I should summarise the requirements of the PPC Regulations for publicity and consultation in relation to applications governed by those Regulations, and refer in outline to domestic jurisprudence of general application requiring fairness by public bodies in their conduct of public consultations as part of their decision-making process.

Schedule 4 to the PPC Regulations requires an applicant: to advertise the application (paragraphs 5 and 6). And it requires the Agency to consider representations of the public within 28 days of the advertisement (paragraph 12(2)(b)) and to determine the application within four months, unless a longer period is agreed with the applicant (paragraph 15(1)). As to what must be disclosed in any such consultation exercise, paragraph 6 requires a brief description in the advertisement of the proposed activities of the installation and a reference to a description in the application of “any foreseeable significant effects of emissions from the installation or mobile plant on the environment” (namely as required in paragraph 1.1, in particular paragraph 1.1(g) of Schedule 4 to the Regulations).

It is an accepted general principle of administrative law that a public body undertaking consultation must do so fairly as required by the circumstances of the case. Lord Woolf MR, as he then was, giving the judgment of this Court in R v North Devon HA, ex p Coughlan [2001] QB 213, at paragraph 112, articulated and stated the limitations of this principle in the following terms:

“… consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.”

Focusing more closely on the issue thrown up by this case, namely whether fairness in decision-making subject to public consultation requires internal workings of a decision-maker also to be disclosed as part of the consultation, the answer given by the House of Lords in Bushell & Anor v Secretary of State for the Environment [1981] AC 75 and in a number of other authorities since, is generally not. In Bushell, Lord Diplock, with the agreement of the majority, expressed the principle in the context of a minister’s decision-making role on his department’s motorway proposal, in which the minister took into account governmental policy as to the method of assessing future traffic growth, unavailable or unpublicised at the material time. He said, at 95E-96A and 102E/F.

“… What is fair procedure is to be judged … in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached. … Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who served the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister’s own knowledge, his own expertise. … This is an integral part of the decision-making process itself; it is not to be equiperated with the minister receiving evidence, expert opinion or advice from sources outside the department after the local inquiry has been closed.

…

… Once he has reached his decision he must be prepared to disclose his reasons for it, … but he is, in my view, under no obligation to disclose to objectors and give them an opportunity of commenting on advice, expert or otherwise, which he receives from his department in the course of making up his mind. If he thinks that to do so will be helpful to him in reaching the right decision in the public interest he may, of course, do so; but if he does not think it will be helpful – and this is for him to decide – failure to do so cannot in my view be treated as a denial of natural justice to the objectors.”

The House of Lords approved and applied those observations in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 - again in the context of a ministerial decision involving considerations of policy as well as judgment on the instant facts in a planning context. However, Lord Clyde, at paragraph 141, expressed an important qualification that parties should be allowed to comment if “some significant factual material of which the parties might not be aware comes to his notice through departmental inquiry”.

Lord Diplock’s rationale in Bushell for internal decision-making not being an apt candidate for disclosure does not, in my view, indicate an intention by him to establish a rule so absolute that it would override in particular circumstances the requirement of fairness, the conceptual setting in which he was considering the disclosability or non-disclosability of internal decision-making. The need expressed by Lord Clyde in Alconbury for a more pragmatic approach when circumstances demand it, were presaged by Lord Diplock himself in his speech in Bushell, at 96D:

“Fairness … also requires that the objectors should be given sufficient information about the reasons relied on by the department as justifying the draft scheme to enable them to challenge the accuracy of any facts and the validity of any arguments on which the departmental reasons are based.”

Thus, if in the course of decision-making a decision-maker becomes aware of a new factor, as in Interbrew SA v Competition Commission [2001] EWHC Admin 367, or some internal material of potential significance to the decision to be made, as in R v Secretary of State for Health, ex p United States Tobacco International Inc [1992] QB, 353, CA, at 370-371 (per Taylor LJ) and 376 (per Morland J), fairness may demand that the party or parties concerned should be given an opportunity to deal with it.

The Judge distinguished Bushell in a number of respects. First, in paragraphs 57 and 58 of his judgment, he contrasted the role of governmental policy in the issue under consideration in that case with the purely factual issue in this case where the material facts in question were likely to influence the Agency’s decision. Secondly, in paragraph 59, he pointed out that in Bushell, unlike here, there was no question of material facts not being disclosed to the objectors. And, thirdly, in paragraphs 60 and 61, he noted that in Bushell the minister had offered in his decision letter a continuing process of consultation on the highway proposal, a feature he considered to be absent in this case –

“There has been no corresponding indication to Mr Edwards or the public generally that there is a continuous consideration of any corresponding kind or that the Agency would be willing to consider objectors’ views deriving from Aqmau 1 and Aqmau 2 in the course of any such continuous consideration.”

With those distinguishing features in mind, the Judge sought, in powerfully and eloquently expressed reasoning in paragraphs 62 and 63 of his judgment, to confine the effect of Bushell to those cases where, on their facts, it would not produce unfairness - on much the same theme as Lord Clyde allowed in the short observation from his speech in Alconbury that I have set out above. He said:

“62.

For these reasons I cannot regard Bushell as supporting any invariably applicable general proposition that a governmental decision-making body, which is under an express or implied duty to act fairly in the course of whatever consultation it is required to conduct in relation to its decision, need never disclose the advice, expert or otherwise, which it receives from those within it in the course of arriving at its decision. Rather Bushell is authority for a view that consultation must be fair to those who have an interest in it …: what is fair depends on the nature of the subject matter… To paraphrase Lord Diplock’s remarks … and translate them to this case, fairness requires that objectors should be given sufficient information to enable them to challenge the accuracy of any facts and the validity of any argument which can be seen by the decision-making body as truly likely to be influential in its decision-making process. Plainly qualifications may need to be added to regulate the disclosure of confidential material, nor need there be disclosure of what is already conveniently available or of that which it is known the objectors already have. But I would not see Bushell as always and indisputably justifying non-disclosure where the only grounds asserted are that the material in question was generated only internally by the decision-maker or that it came to light only after a shift from consultation to decision-making.

“63.

In other words, I do not see Bushell as barring a situation in which the factors against disclosure, including the ones I have mentioned, can, in the surrounding circumstances, be overborne by the broad requirement of fairness and to the intent (as is part of fairness) that consultation shall be on a reasonably informed basis on both sides and not some courtly charade concerned more with appearance of discussion and interplay than with real dialogue. …”

In turning to apply that overriding principle of fairness to the facts of this case, the Judge, in equally powerful reasoning in paragraphs 63 and 64, concluded that, in the circumstances of this case, the withheld material in the form of the AQMAU Reports was potentially critical to the Agency’s decision and that the conclusions in those Reports were not so “incontestably correct” that the public could in fairness be deprived of an opportunity of testing for themselves. This is what he said:

“63.

… Here the Aqmau reports (as I think I can infer) were commissioned with a view to at least the second being assessed by the Agency as part of its consideration of the Site Operator’s application; they were on subjects – various classes of air modelling – which were highly specialised in their nature, so specialised that the Agency called in its own specialist team to deal with the subject. The reports broke new ground; they were not merely verifying or testing material in the application itself or material already received from consultees, objectors or the public generally. Were they not to be disclosed others would not know either that they existed or that they or either of them were to be taken into account by the Agency. They raised subjects important to an adequate assessment of the application and which, unprompted by either the knowledge that the Agency was investigating the subjects or of what the reports said, were subjects which the consultees and objectors could well fail to examine for themselves, deterred, perhaps, by the probable expense of themselves investigating them. Nor were the conclusions in the Reports so clear and categoric, so incontestably right, that consulting upon the reports was plainly redundant in the sense that consultation could usefully add nothing to them nor subtract anything from them. Moreover, apart from added delay to a process that was already extensive, it is difficult to see what prejudice could be suffered by the Agency or (delay apart) by the Site Operator were there to be disclosure. The reports were on subjects as to which the Agency could (and, at least, arguably should) have required information from the Site Operator as part of or as a supplement to its application and which, had the information been acquired in that way, would have been disclosed. Abuse would obviously be possible if disclosure could be avoided by the simple expedient of the Agency doing that which should have been done by the Applicant. On the footing that the first report was, indeed, merely a draft, in these circumstances the arguments against disclosure are, in my judgment, overborne; it should have been indicated by the Agency that the second report existed and, broadly, what it said, and had a sight of it then been requested (as undoubtedly would have been the case), then it should have been disclosed to such consultees or objectors as required it.

64.

In my judgment, firstly, Aqmau 1 should have been disclosed unless (as there was not) there was an intention to disclose a final report; and, secondly, Aqmau 2 should have been disclosed. After all, as I have touched on already, if the Agency, as it could and at least arguably should have done once it had received Aqmau 1 and had thus seen the vulnerability of the application on PM10 grounds, had requested the Site Operator as Applicant to conduct LLPS air modelling, the result would have had to be made known to consultees – see Directive 96/61/EC Article 6, 5^th bullet point and the PPC Regulations 2000 Schedule 4, Part 1, para 1(1)(g). To this extent there was, in my judgment, a real shortcoming in the Agency’s conduct; what the consequences of that might be I shall need to consider under the heading of “Relief”, which I shall come on to below.”

Mr Elvin, whose submissions were again adopted by Mr Pleming, put before the Court three main reasons for submitting that the Agency did not breach its common law duty of fairness in not putting AQMAU 1 and/or AQMAU 2 out to public consultation. First, in reliance upon what might be described as the unqualified Bushell principle, which he maintained was not confined to questions of governmental policy, the AQMAU Reports were internal advice - part of its own decision-making process which fairness did not require the Agency to disclose. Secondly, AQMAU 1 was only a draft of AQMAU 2 (a characterisation of which, as I have said, the Judge was sceptical), and there is, in any event, no obligation derived from the principle of fairness as stated in Bushell or other domestic jurisprudence to disclose drafts. And, thirdly, it was not unfair for the Agency to withhold those Reports in the circumstances, since the modelling and environmental impact of low level emissions of dust had not been the focus of concern of the public in the consultation.

As to the first of those points, the ambit of the Bushell principle, Mr Elvin argued both for its breadth and unqualified nature. He submitted that it is as applicable, as Lord Diplock put it, to “administrative decisions involving forming judgments based on technical considerations” - such as those of the Agency in the light of the AQMAU material - as it is to such decisions where they involve consideration of matters of governmental policy.

Mr Elvin added that if and to the extent there is any principle in the Judge’s distinction of Bushell on the basis that it did not involve non-disclosure of material facts, the factual distinction is not apt here since: 1) the data on which the AQMAU Reports were based was substantially already in the public domain in the form of the emission limit values proposed in Rugby Ltd’s application - all that was withheld was the Agency’s internal expert assessment of it; 2) the Agency’s consultation process had been extensive and fair and had generated public interest almost exclusively on the projected emissions from the main stack from the proposed burning of waste tyres, when, as the AQMAU Reports showed, it was only when those emissions were considered together with the low level emissions of dust that there was a risk, on certain “conservative” and cumulative assumptions, of exceeding the relevant limits; 3) the Agency concluded that the realisation of all those assumptions was unlikely (borne out by recent monitoring showing no breach of the limits), a conclusion that could not be said to be Wednesbury unreasonable; and 4) in any event, the so-far unrealised possibility of exceeding the limits would have been and was revealed in the Agency’s Decision Document, and met by the conditions to the permit imposing achievable (and achieved) emission limits through techniques already in use by Rugby Ltd at the plant.

Mr Wolfe relied heavily on the following points in and emerging from the Judge’s analysis - also relevant, he maintained, to the proper exercise of his discretion whether to grant relief: 1) the Judge’s recognition that the conclusions in AQMAU 1 and 2 were “not so incontestably right” that consultation would have made no difference; 2) even if the AQMAU conclusions were right, the Agency did not give effect to them in its decision, in particular in downplaying them in its Decision Document; and 3) the withholding by the Agency of the AQMAU Reports also denied full consultation as to the nature and adequacy of the conditions to which the permit should be subject.

In my view, the reasoning of Lord Diplock in Bushell is plainly of general application to holders of public office or public bodies such as the Agency, charged with making administrative decisions in which the public have an interest and an entitlement to be consulted. Many or most of such public officer holders or bodies have their own internal expertise and staff to turn to for advice and guidance in reaching their decisions. The decision when made, just like that of a government minister, may be the product of contribution from a number of members of staff working to the decision-maker or the corporate body.

In general, in a statutory decision-making process, once public consultation has taken place, the rules of natural justice do not, for the reasons given by Lord Diplock in Bushell, require a decision-maker to disclose its own thought processes for criticism before reaching its decision. However, if, as in United States Tobacco (see per Taylor LJ, as he then was, at 370-371, and at 376, per Morland J), and in Interbrew (see per Moses J at pp 33-35 of the transcript), a decision-maker, in the course of decision-making, becomes aware of some internal material or a factor of potential significance to the decision to be made, fairness may demand that the party or parties concerned should be given an opportunity to deal with it. See also the remarks of Schiemann J in R v Shropshire Health Authority, ex p Duffus [1990] 1 Med LR 119, at 223 as to the changing scene that a consultation process may engender and the consideration by Silber J in R(Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640, at 39-44, of the possible need, depending on the circumstances, for further consultation on matters and issues that the initial consultation may have thrown up.

The facts of this case do not, in my view, fall within the general approach indicated by Lord Diplock in Bushell. With respect to the submissions of Mr Elvin and Mr Pleming that AQMAU 1 and 2 introduced no new basic facts or criteria, they are only partly correct as to basic facts. They also overlook the powerful reasoning of the Judge as to AQMAU’s contribution to the Agency’s decision on what was - potentially at any rate - a material matter for disclosure, especially having regard to the Agency’s concern in its Decision Document to distance itself from AQMAU’s conclusions on the likely impact of the low level emissions of dust when considered with the main stack emissions. It is, in my view, an over-simplification to submit, as they did, that the way in which the Agency, in the light of those Reports, predicted the environmental impact of the low level emissions of dust in conjunction with the tyre burning was a matter for it, and that, on that account, it had no obligation to consult on the decision it was formulating.

In my view, on this issue of consultation there is force in the two points relied upon by Mr Wolfe, principally in relation to the claim that the application did not comply with the PPC Regulations, and taken up by the Judge in this context in paragraph 63 of his judgment (see paragraphs 96 and 97 above). First, AQMAU, in conducting its modelling, did so only in relation to the predicted emissions from the burning of waste tyres and, for the purpose, obtained additional information from Rugby Ltd going to the predicted environmental impact of the proposals, which was not put in the public domain until the Agency issued its Decision Document. Secondly, for the reasons given by the Judge in that paragraph, the highly technical nature of AQMAU’s predictions and the possible significance of their conclusions were such that their non-disclosure in the consultation process cannot be dismissed as unimportant. For one thing, as Mr Wolfe emphasised, the Agency, in its Decision Document, distanced itself from AQMAU’s predictions. Morever, those predictions were, as the Judge described them, highly specialised, breaking new ground and going beyond merely testing or verifying material in the application and in the public domain. They clearly raised subjects potentially – I stress the word “potentially” - important to an adequate assessment of the proposal of which interested members of the public were unaware and might well fail to examine for themselves. The fact that no environmental damage has, as yet, resulted from the proposal is, it seems to me, no more of an answer to a finding of a breach of a common law obligation in such a context than it is to a breach of a legislative obligation; cf. Thornby Farms v Daventry DC [2003] QB 503, CA, per Pill LJ at para 60.

In short, the non-disclosure of the AQMAU Reports left the public in ignorance, until the Agency’s grant of the permit, of the only full information as to the extent of the low level emissions of dust and the only information at all on their possible impact on the environment. I agree with the Judge that such information was potentially material to the Agency’s decision and to the members of the public who were seeking to influence it, and that failure by the Agency to disclose it at the time was a breach of its common law duty of fairness to disclose it. It does not follow, however, that they were thereby “clearly and materially disadvantaged” as Mr Wolfe maintained.

The Respondents’ case is that, even if the Agency did breach its common law duty to provide fair consultation in respect of AQMAU 1 and/or AQMAU 2, the Court should not interfere with the Judge’s decision in the exercise of his discretion to refuse relief, unless he exercised it on a flawed basis.

The Judge, in paragraphs 93 and 94 of his judgment, gave the following reasons which, “[t]aken together” persuaded him to refuse relief:

Before I turn to the submissions of the parties, I should note that it is common ground in the appeal that the Judge’s reliance, in the second and third of those reasons, respectively the ability of the Rugby Borough Council to police compliance by Rugby Ltd of the relevant air requirements and that a quashing order would have the effect of shutting down the plant, was misconceived. However, it does not follow from those misconceptions and from his reliance on all his reasons “taken together” that the propriety of his discretionary decision would be damaged if one or more proved, as is the case, to have been invalid. What matters is the weight overall of the matters upon which he properly did rely, and could have relied, as against those tending to favour the grant of relief.

As to policing compliance, the Judge presumably had in mind the Borough Council’s general powers of control of statutory nuisance under section 9 of the Environmental Protection Act 1990. However, section 79(10) of the Act specifically excludes such powers in respect of emissions regulated under a PPC permit, leaving control to the Agency under the PPC Regulations. Had the Judge been invited to focus more closely in this context on the extensive powers of the Agency to regulate and monitor both the adequacy of the controls it had imposed in the conditions attached to the permit and Rugby Ltd’s compliance with them, he would still have been able to conclude, as he did, that “if the Decision Document and Permit stand”, persons in the area would not be “bereft of environmental protection”.

As to shutting down the plant, a quashing order would not have that effect because, if, as would have been likely if he had granted relief, the Judge would have remitted the matter to the Agency for its reconsideration, the PPC Regulations would not prohibit Rugby Ltd from operating the plant without a permit in the period between the making of such an order and the Agency making a fresh decision. It would simply have had the effect of reverting to the less rigorous 1999 IPC authorisation until replaced by a PPC permit or such permit were refused. (Footnote: ⁸) Given that circumstance, Mr Wolfe, while maintaining the appellants’ entitlement to relief in the form of a quashing order, put to the Court on the last day of the hearing of the appeal various possible alternative forms of relief. These include a declaration that the permit and decision are unlawful, but not quashing them, or an order that the Agency should undertake a full review of the permit conditions under regulation 15 of the PPC Regulations and consider its powers under regulations 17 and 21 respectively to vary them or revoke the permit, and make certain consequential orders as to the conduct of such review. In addition, Mr Wolfe referred to the ability of the Secretary of State to consider, in the light of the Court’s order, whatever that might be, his power under section 53 of the Environment Act 1995 to appoint an independent inspector to hold a public inquiry to consider and direct the Agency how to exercise its powers of review.

Mr Wolfe prefaced his submissions as to the Judge’s exercise of discretion to refuse relief by making two points. The first was as to the narrowness of the discretion even where the breach is one of domestic law, as this was, which he read across from the strictness of the approach adopted by the House of Lords to breaches of EU law in protection of the environment. The second was that it is not necessary for a claimant to show that there would have been a different result, or even that it is likely that there would have been a different result if the consultation had not been wanting in the respects established. He submitted that it is enough, as Keene LJ indicated in W v SENDIST and Devon, CA (C2/2000/3090), at para 23, that “a different result might realistically [have] followed from a consideration of … overlooked material”. However, the second goes in the first instance to the question whether there has been a breach of an obligation to provide adequate consultation, and secondarily, where there has been a finding of such breach, whether to grant relief.

Mr Wolfe, in addition to his criticisms of the Judge’s reasons as to policing compliance with the relevant emissions levels and the shutting down of the plant, attacked all the other of his reasons going to the refusal of relief. He submitted that almost all of them were legally erroneous and that, whether considered individually or together, do not justify his decision.

First, he maintained that the Judge was disabled from concluding, as he did, that there had been, and was likely to be, no breach by Rugby Ltd of EU or domestic air requirements, because of the possible shortcomings of the AQMAU Reports which, in any event, the Agency did not correctly represent in reaching its decision.

Secondly, Mr Wolfe challenged the Judge’s finding that Rugby Ltd had not been at fault in relation to the Agency’s shortcomings in disclosure in the consultation process. He maintained that it had contributed to what occurred by its failure to include in its application adequate information as to the predicted impact on the environment of the low level emissions of dust, information which, if provided at that stage, would have reduced, for the purpose of the consultation exercise, the information gap to the public created by the Agency’s withholding of the AQMAU Reports.

Thirdly, Mr Wolfe challenged the Judge’s finding of the insignificance of the contribution from the plant to overall pollution in the area. He maintained that, on the evidence before the Judge, in particular AQMAU 2, this applied only to emissions from the main stack, not to emissions from the works over-all, that is, including the low level emissions of dust.

Fourthly, Mr Wolfe submitted that the Judge wrongly relied on the public’s ability to rely on their own expert advice in the consultation process about the low level emissions of dust. He contended that such ability cannot in itself be an answer to a challenge based on a failure properly to inform in this consultation exercise, since until the disclosure of the AQMAU Reports post-consultation, the public’s attention had not been drawn to the potential significance of those emissions.

And fifthly, Mr Wolfe asserted the irrelevance of the Judge’s reliance on his finding that the Agency had acted in good faith in the belief that Bushell made disclosure of AQMAU 1 and 2 unnecessary and that it was contrary to its ordinary practice. He submitted that: 1) such an absence of finding of bad faith cannot amount to a positive factor against the grant of relief, which is how, Mr Wolfe submitted, the Judge treated it; 2) in any event, there was no evidence before the Judge that the Agency’s staff considered Bushell or its “ordinary practice”; and 3) it was contrary to the explanation it gave at the time, namely that disclosure would “prejudice” its decision-making, a reason that Judge had expressly rejected as not a proper basis for withholding disclosure.

Mr Elvin submitted that, with the two exceptions to which I have referred, the Judge was entitled to rely, in deciding to withhold relief, on the various matters he mentioned in paragraph 93 of his judgment. Mr Elvin referred, in particular, to his reliance on his findings that there had and has been no breach by Rugby Ltd of the relevant air requirements or any significant contribution by the plant to overall pollution in the area, and no likelihood of any breach, given the post-decision monitoring that has taken place and will take place. He also emphasised the ability of the interested public on the information available to them in the consultation process to explore the potential significance for the environment of low level emissions of dust, an opportunity not taken because of their mistaken concentration on emissions from the main stack as a source of environmental damage.

Mr Elvin submitted in addition, and with some emphasis, that quashing the decision to permit the burning of waste tyres as a partial substitute for conventional fuel in the kiln would not necessarily lead to any beneficial results for the environment, since the main concern now is no longer the emissions from the main stack, but only and peripherally as to their effect when considered cumulatively with the potentially more significant effect, in environmental terms, of the emissions of low level dust. In such circumstances, to quash the decision to permit tyre burning would, he submitted, be pointless. As to quashing the permit as a whole and remitting the application to the Agency for reconsideration, he submitted that it would be disproportionate, even though it would not shut down the plant, and would bear no relation to the concerns that engendered these proceedings, emissions from tyre burning.

As the Judge observed at paragraph 93 of his judgment, a domestic law procedural defect, not contravening EU law or rendering the ensuing decision ultra vires – here the Agency’s failure to disclose the AQMAU Reports before making its decision – does not necessarily lead to the quashing of a decision. It was for him, looking at all the material facts of the case before him, to determine in the exercise of his discretion whether it was “necessary or desirable for him to do so in the interests of justice”; see per Lord Woolf MR, as he then was, in R v Inner London South District Coroner, ex p Douglas-Williams [1999] 1 All ER 344, at 347d-f. Whilst the House of Lords have held in Berkeley that there are limitations on that discretion where there has been a breach of EU law, on the Judge’s rulings, which I would uphold, there was no such breach in this case. In any event, as Richards J, (as he then was) reasoned in R (Gavin) v Harringey LBC [2004] 2 P & CR 13, at paras 40 – 41, EIA principles are not necessarily offended by the application of section 31(6) of the Supreme Court Act 1981, giving the court a discretion in the event of delay in seeking judicial review to refuse to grant permission for the making of a claim or for any relief sought in such a claim.

More to the point, given the common law context in which the question of relief arises, is the range of factors which may or may not properly bear on such a decision, to some of which Richards J also drew attention in Gavin. These include: the prejudice or absence of prejudice to a claimant in being deprived of an opportunity to make informed representations; whether a claimant acted with all reasonable speed in raising the grounds on which he relies; the conduct of the interested party; and whether it would be in the interests of good public administration to quash, leaving the parties to re-start the process. Depending on the relative weight of relevant factors one way or the other in any particular case, no single one of them is necessarily decisive. Thus, Keene LJ’s proposition in SENDIST, at paragraph 23, that a court “will” quash a decision “[i]f a different result might realistically have followed from a consideration of overlooked material”, should not be read to mean that that consideration on its own trumps all other considerations when the court is considering whether to grant relief.

Of particular importance, as Mr Elvin submitted, was the Judge’s clear acceptance, on the evidence before him, in paragraphs 31 and 93 respectively of his judgment, that tyre burning emissions from the main stack, on their own, would have no significant adverse effects on the environment, and that emissions from the plant as a whole would not contribute significantly to pollution in the area. In the circumstances, he clearly regarded as remote or fanciful the possibility that the Agency would or might have made a different decision if it had consulted members of the public on the advice given in the AQMAU Reports, whatever his views about the importance of their non-disclosure as a matter of due process on the issue of fairness.

In my view, all the matters to which the Judge referred, with the exceptions of the ability of the Council to police the future operation of the plant and the assumption that quashing the permit would have the effect of shutting down the plant, were matters he was entitled to take into account in the exercise of his discretion. As I have remarked, the former is only an exception in the sense that he failed to identify the Agency as the public authority responsible for and with the statutory tools to ensure that the plant would not breach the relevant environmental safety limits. This protection, through the medium of the continuing and dynamic regulatory role provided by the PPC Regulations, requires and enables the Agency, continuously to monitor post-permit the plant’s operations so as to ensure maintenance and improvement of the environmental safeguards secured by the use of “best available techniques” and the conditions of the permit.

In addition, if those statutory obligations and powers prove to be insufficient, the Agency has power to review and vary the conditions under regulations 15 and 17 or, in the last resort, to revoke the permit under regulation 21 of the PPC Regulations. In the event of the Agency seeking substantially to vary any conditions pursuant to regulation 17(5), it is required by paragraph 4 of Schedule 7 to the PPC Regulations, (Footnote: ⁹) to put the proposed variation and supporting information out to public consultation. The fact that there is no express requirement in the PPC Regulations to enable the public to require the Agency to exercise any of those powers or to entitle them to consultation on the question of whether to consider exercising them – as distinct from entitlement to consultation if it does – is relevant, but not determinative. So also are the obligations imposed on the Agency by regulations 15 and 17 of the PPC Regulations periodically to review permit conditions and, if necessary as a result of such review, to vary them and the corresponding obligation imposed by regulation 29(1) of, and paragraphs (r) and (t) of Schedule 9 to the PPC Regulations, to put “all particulars of any monitoring information relating to the operation of the” plant on the public register.

So, as Rix LJ observed in the course of Mr Elvin’s submissions, whatever the case as to the Agency’s non-disclosure of AQMAU 1 and 2 in the consultation process, it is now “water under the bridge”. Put more prosaically, given the Judge’s finding on the evidence before him of no environmental harm from the plant and the continuous and dynamic nature of the PPC regulatory system enabling assessments to be made on what is known rather than predicted by AQMAU over three years ago, it would be pointless to quash the permit simply to enable the public to be consulted on out-of-date data. And, as I have said, if consultation on fresh data is what is sought, this is publicly available in the review process for which the PPC Regulations provide, requiring all particulars of monitoring information obtained by the Agency as to compliance or otherwise with conditions of the permit or various notices, in particular as to variation of conditions, to be put on the public register.

For those and, with the exceptions to which I have referred, the other reasons given by the Judge, I would not interfere with the exercise of his discretion to refuse relief; indeed, if that discretionary exercise fell to me, I would exercise it in the same way.

In the circumstances, it seems to me that the Court need not consider additional matters upon which Mr Elvin also sought to rely, including delay by the claimants in presenting their true challenge to the permit and the interests of good administration in maintaining it in force after all that has happened. There is no indication that the Agency considered these matters at the time, and the Judge did not explicitly rely upon them on this issue.

As to the various alternative forms of relief suggested by Mr Wolfe, none of them, in my view, is necessary or desirable or, indeed, practicable, largely for the reasons that militate against the grant of relief in the form of a quashing order.

First, as to the strange notion of a declaration of unlawfulness of the decision and the permit, but leaving both in force, I consider that it would be pointless and of no practical effect. It would also be capable of causing much uncertainty and confusion in the conduct by the Agency of its regulatory responsibilities in relation to the plant. It could result in stultifying challenges to any regulatory action, for example, for the enforcement of conditions in the permit, on the claimed basis of its unlawfulness. Similarly, Rugby Ltd’s continued operation of the plant pursuant to a permit declared to be “unlawful” could expose it to unmeritorious or vexatious legal challenges by third parties. As Mr Elvin put it, this would be the worst of all outcomes.

As to the suggested further alternative of the Court ordering the Agency to undertake a review of the conditions of the permit pursuant to and in accordance with its powers given and the discretion allowed by regulation 15 of the PPC Regulations, I cannot see what power the Court has to direct such a review or, if it has, to direct the Agency how to conduct it by making the various orders suggested. All of them are matters well within the Agency’s own discretion when it next undertakes a periodic or other review, and some of them are already prescribed by the Regulations themselves.

As to Mr Wolfe’s reference to the Secretary of State’s power in section 53 of the Environment Act 1995 to appoint an independent inspector to hold a public inquiry to consider how the Agency should exercise its powers, there is no claim for such relief against the Secretary of State, and, in any event, it would not be open to the Court to direct him to exercise a statutory discretionary power of that sort. Section 53 provides that he “may cause an inquiry or other hearing to be held if it appears to him expedient to do so”.

Accordingly, for the reasons I have given, I would: 1) not refer any of the EU issues raised by the appeal to the European Court of Justice under Article 234 of the Treaty; 2) dismiss the appellants’ appeal against the Judge’s rulings that the Respondents were not in breach of the EIA Directive or the PPC Regulations; 3) dismiss the appellant’s appeal against the refusal of the Judge, in the exercise of his discretion, to grant relief; and 4) dismiss the Respondents’ appeal on the Respondents’ Notice against the Judge’s ruling that that the Agency was in breach of its common law duty of fairness in the late disclosure of the AQMAU Reports.

I should note that, since the hearing of the appeal, the solicitors for the appellants have submitted further material to the Court challenging the correctness of various factual assertions, evidential and otherwise, of the Respondents made prior to and in the course of the hearing of the appeal. In our view, none of this material was of assistance to the Court in the determination of the appeal, and we have not, therefore sought representations from the Respondents on it.

I agree.

I also agree.