Environment Agency v Anti-Waste Ltd, R (On the application of)

This is an appeal against a judgment of Collins J dated 4 April 2007 whereby he granted to Anti-Waste Limited (“the appellants”) declarations that:

The Environment Agency (“the Agency”) appeal against the first declaration. That became known as the “installation issue”. The appellants appeal against the second declaration, claiming that a different declaration should have been made. That issue became known as “the groundwater issue”. The Secretary of State for the Environment, Food and Rural Affairs (“the Secretary of State”) has not sought to be heard on these appeals.

The appellants are a waste management company, a subsidiary of Waste Recycling Group Limited, one of the main waste management companies in the country. The agency is a statutory body created under the Environment Act 1995 (“the 1995 Act”) charged with responsibilities for the protection of the environment, including the issue of permits for landfills.

These proceedings began with an attempt by the appellants to quash two decisions of the Agency declining to issue permits for landfills in Norfolk. Declarations were also sought. In relation to the specific sites the appellants agreed to pursue a statutory appeal to the Secretary of State against the refusals. That would enable factual and technical matters to be dealt with before a specialist tribunal. The appellants pursued the claim for declarations so that the statutory appeals could be heard in the light of them.

Depositing waste in landfill sites has been the major method of disposal in this country. EU Directives have promoted other methods aimed at recycling, and landfill is now the option of last resort. The Directives require member states to put in place controls to ensure compliance with pollution requirements.

The waste with which this case is concerned degrades over a period of time to produce a residual waste mass, landfill gases (mainly methane) and a liquid known as leachate which often comes from the action of rainfall over the site. Leachates will contain substances harmful to the environment and which may be hazardous to humans if they enter the groundwater.

Collins J described the background to the present dispute:

Specific legislative control of landfilling arose under the Control of Pollution Act 1974. Waste Disposal Licences needed to be obtained but, once the filling permitted by the licence was completed, the operator could relinquish the licence and would have no continuing obligation to manage the landfill. The Environmental Protection Act 1990 amended the regime by, among other matters, preventing the relinquishing of what were called Waste Management Licences (WML) without the regulator's permission. In 1990 the regulator was the Waste Regulation Authority but in 1996 it became and has since remained the [Agency]. WMLs could not be relinquished until the operator demonstrated that the landfill no longer posed any unacceptable threat to the environment or to human health. Thus there was a continuing obligation to manage a landfill even though waste was no longer being deposited in it. The Landfill (England and Wales) Regulations 2002 (“The Landfill Regulations”), made under the Pollution Prevention and Control Act 1999, which came into force on 15 June 2002, now require an operator to obtain a landfill permit. Regulation 15 provides that a permit must require the defendant to approve any closure and obliges the operator to remain responsible for the maintenance, monitoring and control of the landfill for as long as the defendant reasonably determines that the landfill is likely to cause a hazard to the environment. In particular, the operator must monitor and control any leachate so as to stop it harming the environment or humans”.

The court has been referred to several Directives and sets of Regulations but, since in my view the case turns on short points, I will not set them out in full. Mr Turner QC, for the Agency, stresses that landfill regulations should be considered in the context of the entire waste management regime inaugurated by the Directives. Council Directive 96/61/EC of 24 September 1996, the Integrated Pollution Prevention and Control Directive, deals with pollution caused by many categories of industrial process, including waste disposal. Recital 8 reads:

Article 1 of the Directive provides that the activities in Annex 1 must be controlled so as to avoid pollution. The activities include, under the heading “Waste Management”: “Landfills receiving more than ten tonnes per day or with a total capacity exceeding 25,000 tonnes, excluding landfills of inert waste". Article 4 requires Member States to take the necessary measures "to ensure that no new installation is operated without a permit issued in accordance with this Directive." Installation is defined in Article 2(3):

The Pollution Prevention and Control (England and Wales) Regulations 2000, as amended (“the Pollution Control Regulations”), and the Landfill (England and Wales) Regulations 2002, as amended (“the Landfill Regulations”), implement the Directives. It is accepted, for present purposes, that in all material respects the Regulations are consistent with the Directives.

The judge identified, at paragraph 6, the two issues before the court:

If a permit must relate to the whole site, namely the proposed landfill together with the closed cell, is the defendant required to refuse to grant a permit where the existing deposits (i.e. those in the closed cell) are responsible for harmful discharges to groundwater and where the landfills as a whole cannot be made to comply with the technical requirements of the Landfill Directives?

“Installation” is defined in Regulation 2 of the Pollution Control Regulations to mean:

On the installation issue, the Agency took two points before the judge:

The judge held that a landfill permit does not have to refer to the whole site, including the old cell. A new deposit in a defined area which excluded an old cell was capable of qualifying as a “stationary technical unit” so that a landfill permit did not have to refer to the whole of the site including an old cell and could be granted for the operation of a separate landfill which overlays a closed cell containing previously deposited waste.

The judge stated:

The judge considered submissions about the practical difficulties inherent in piggybacking including identifying the culprits if pollution follows it. He stated that such technical difficulties do not establish that a permit cannot be granted as a matter of law.

The judge added this cautionary note at paragraph 24:

Mr Turner, for the Agency, accepts that the relevant activity, “disposal of waste in a landfill” on the required scale comes within the expression “one or more activities” in the definition of installation in Regulation 2(1) of the Pollution Control Regulations. It appears in Section 5.2 of Part 1 of Schedule 1. Nothing turns, in this case, on the presence of the word “stationary” in the definition. Mr Turner’s submission is that the test of what is a “technical unit” must be objective. Where, for technical reasons, the old and new cells need to be managed and regulated in an integrated way, as a single installation, for environmental reasons, the piggybacking cell is not a technical unit. When making an application for a permit, it is not open to an applicant at will to exclude closed cells from the application.

There are technical reasons why the old cell and the piggybacking cell are inter-dependent, it is submitted. The piggybacking cell is likely to cause compression of the underlying cell, sideways pressure and differential settlement. In addition, there will be difficulty in monitoring pollution from the closed unit. The perceived technical problems are set out in the decision documents refusing licences in the present cases.

Mr Turner first submitted that the Agency must be allowed to form the view, in a particular case, that unless the old cell is included within the application for a permit, the application does not cover a technical unit and is not “duly made” under Regulation 10. It is for the Agency to make their expert assessment of that and, subject to rationality, its view prevails. Mr Turner later accepted that the Agency’s finding on “technical unit” was subject to appeal to the Secretary of State. The court should construe “technical unit” in the context of the Directives and Regulations, which require a high level of environmental protection and an integrated approach to it. For technical reasons, the piggybacking cell and the closed cell are inter-dependent and the piggybacking cell does not constitute a technical unit. It is operationally necessary for the cells to be managed and regulated in an integrated manner. There is what Mr Turner describes as a functional inter-dependence between them which means that together they constitute a technical unit but the piggybacking cell alone does not.

Reliance is placed, as it was before the judge, on Government Guidance as to the working of the scheme. Like the judge, I consider that the Guidance is primarily concerned with the important technical issues that arise when considering whether a permit should be granted and not with the definition of “technical unit”. The Guidance may assist in understanding the Regulations but it is, of course, for the court to construe the Regulations.

For the appellants, Mr. Fordham QC submits that the test of what is a technical unit is whether it is a unit on which a relevant activity can be carried out independently. It is a technical unit if it is functionally self-contained. Mr Fordham accepts that technical matters are highly relevant but in the proper place, that is when the environmental effects of what is proposed are considered by the Agency, or on appeal by the Secretary of State. They may provide good reason for refusing a permit but do not go to the definition of technical unit. Schedule 2 to the Landfill Regulations imposes detailed requirements before a permit can be granted. It may be issued only if the proposal “does not pose a serious environmental risk”. Provided the application site is one where relevant activities can be carried on as a separate operation, the test is satisfied. Mr Fordham also refers to the apparent acceptance, in at least one of the notices refusing permits in this case, that the proposal complied with the definition of technical unit.

Before expressing my conclusion on the issue between the parties, I refer to a construction of the definition of “installation” put to the parties by the court and roundly rejected by each of them. It turns upon the construction of sub-paragraph (ii) of Regulation 2 of the Pollution Control Regulations and whether the closed unit prospectively subject to piggybacking comes within the definition “any other location” in the sub-paragraph and thereby becomes part of the technical unit. It is accepted that what goes on in the closed unit is an “activity” within the meaning of the Regulation. “Directly associated activities” are defined in the same Regulation as “any directly associated activity which has a technical connection with the activity carried on in the stationary technical unit and which could have an effect on pollution”. The test put was that, if the piggybacking cell would have a technical impact upon the closed cell, that unit has a “technical connection” with the activity on the piggybacking cell.

Mr Fordham submits that “directly associated activities” means activities conducted for the purposes of the activities on the land subject to the application for a permit. While the closed cell may be the host of relevant “activities” these are not “directly associated” with it and do not have a “technical connection” with it. The definition does not cover the closed cell which perchance adjoins the piggybacking cell.

Mr Fordham refers to DEFRA Guidance of June 2002 in which the definition is considered, and the formulation in the Guidance is adopted on behalf of the appellants. Dealing with the criterion that the activity must be directly associated with the stationary technical unit, the Guidance “requires that the activity is carried out on the same site as the stationary technical unit and that the activity serves the stationary technical unit (i.e. there is an asymmetrical relationship whereby the activity serves the stationary technical unit but not vice versa)”. Moreover, examples given in the Guidance of activities with “a technical connection with the technical unit” are quite different from the mere presence of a closed unit.

While the point, in my view, merits consideration, I have concluded that the parties are correct in rejecting it. Sub-paragraph (ii) contemplates an activity “serving” the technical unit, the word used twice in the relevant part of the Guidance. That does not apply to a closed unit, the presence of which may be relevant for other purposes, but activity on it is not directly associated with the proposed activity, within the meaning of the Regulation.

On the disputed issue, I agree with the submissions of Mr Fordham and the reasoning of the judge. The technical and environmental considerations which arise from the presence close to the area subject to the application of the closed unit do not bear upon the definition of technical unit. Application is made for a permit for an installation, which involves identifying a stationary technical unit. That can be done by identifying a space in which the scheduled activity can be carried out independently as a functionally self-contained operation. It does not fail to meet that requirement because of the likely impact on other areas, including closed cells. That impact is very relevant to whether a permit should be granted but there is no requirement to demonstrate an absence of such impact before an application for a permit can be considered.

I reject the submission first made that the Agency can impose a threshold requirement that an application for a permit cannot be considered unless it is first established that there will not be such impact. Further, the need for an integrated approach to pollution control does not require an applicant to include within his area of application any closed cell on which the new activity might have an impact. That impact, if any, can be considered during the application procedure and does not place a bar upon an application.

The groundwater issue turns on the construction of the word “permit” in Regulation 4 of the Groundwater Regulations 1998. Those Regulations are derived from Directive 80/68/EEC, the Groundwater Directive. Noxious substances are listed in a Schedule to the Regulations in two lists numbered I and II, reflecting an Annex to the Directive in similar form.

Recital 7 of the Directive, provides:

Article 11 provides that the authorisations referred to in articles 4 and 5 may be granted for a limited period only, and will be reviewed at least every 4 years.

Regulation 4(1) of the Groundwater Regulations provides that “an authorisation shall not be granted if it would permit the direct discharge of any substance in List I”. Regulation 4(2) makes provision for protection against indirect discharges which must be subjected to prior investigation. Regulation 4(3) provides:

Regulation 13 provides: “The application of the measures taken pursuant to these Regulations may on no account lead, either directly or indirectly, to pollution of groundwater”. That reflects Article 18 of the Directive.

The potential practical importance of the issue is that anticipated by the judge in the declaration he made. Can a permit be granted for new landfill without a requirement that the applicant stop an already occurring discharge from a closed cell? The judge found:

The practical problem posed could arise even if the piggybacking cell is, as both the judge and I have found it can be, a stationary technical unit. It could arise in a situation in which an already occurring discharge from a closed cell could not be ended by a permit holder for a new cell, piggybacking or not.

I have found, as did the judge, that an installation need not be regarded in law as including an existing closed cell. The parties have asked the court to rule on the groundwater issue, whichever way it decides the installation issue, because it could be relevant on other facts. It is not easy to predict situations in which the issue will arise and, in the absence of specific facts on the basis of which to consider the issue, I express my view with some hesitation.

Mr Turner submits that the Regulations require the applicant for a fresh permit to prevent pollution from the whole landfill. A failure to achieve that amounts to a “permission” of discharge within the meaning of Regulation 4. Even if it is impossible to prevent an already occurring emission, the permit must still be refused.

Mr Turner submits that a new permit cannot be granted unless the applicant is able to terminate a discharge from an old cell within the landfill, for which he may not have been responsible. A failure to prevent the old discharge amounts to permitting it within the meaning of Regulation 4.

The appellants seek to challenge the propositions advanced by the judge in paragraphs 33 and 34 of his judgment and a short point of statutory construction arises. Mr Fordham submits that, if the old discharge is not caused or exacerbated by the new development, the authorisation is not permitting discharge within the meaning of Regulation 4. The discharge would be present whether or not the new permission is granted. A refusal would not end it. (Mr Fordham mentions the possibility and opportunity of mitigating measures associated with the new development having a beneficial effect on the old which would not otherwise be achieved).

It is not the permission which is “leading” to pollution within the meaning of Regulation 13, or which “permits” it within the meaning of Regulation 4, it is submitted. The obligations on Member States in, for example, Article 14 of the Directive, may mean that the state is in default for having failed to end an old discharge but the permit system cannot be used as a means of requiring a new applicant to end an existing breach, which may be of very long standing. Mr Fordham also relies on the practicability test present in Article 1 of the Directive by the introduction of the words “as far as possible” when the elimination of the consequence of past pollution is considered.

On the point of statutory construction, I agree with the appellants. A permit which does not require the ending and preventing of an old discharge does not “permit” that discharge within the meaning of Regulation 4 of the Groundwater Regulations. The Regulations contemplate a discharge, direct or indirect, which results from the activity to be authorised and its consequences but not a discharge extraneous in the sense that it is unrelated to the new activity.

Whether that conclusion has any practical value for applicants for permission, I do not know. Issues arising from the impact of the piggybacking cell on the closed cell, considered in this judgment in relation to the groundwater issue, will arise when application is made, as will the possibility that the new development may make it more difficult to end the old discharge, whether or not it is part of the stationary technical unit for which permission is sought. The regulatory powers are broad.

I would allow the appellant’s appeal to the extent of quashing declaration 2. I would not replace it with a separate declaration, the necessary guidance having been given in the judgments in this court.

I understand the concern of Sedley LJ, whose judgment I have read in draft, about declaration 1. I am accordingly content to rest on the contents of this judgment as dealing with the installation issue and to quash the declaration. The appeal on the installation issue fails in substance but succeeds to that extent.

This case began life in the Administrative Court as an application to quash the Environment Agency’s refusal to grant permits to deposit waste into two landfill sites in Norfolk. It also sought seven detailed declarations which it would be otiose now to set out. Sullivan J granted permission limited to the installation issue and the groundwater issue.

By the time the case came on before Collins J, AWL had recognised that its proper course in relation to the refusal of permits was to appeal to the Secretary of State pursuant to Part IV of the Pollution Control Regulations. But it pursued its claim for two declarations. The content of the declarations that were made following trial was agreed between counsel in the light of the judgment.

In my view neither the declarations which were made nor any of the expanded versions put, at our invitation, before this court is a proper use of the court’s declaratory function. The pursuit of them in advance of the statutory appeal to the Secretary of State is an inappropriate endeavour to anticipate part of that appeal. To do so without addressing the technical facts is to seek declarations of Delphic generality; to tie a declaration to ascertained facts is an impossibility if the court is not to take on the role of the Secretary of State; and to tie it to assumed or hypothetical facts is a waste of time.

The Environment Agency, however, has not taken this stance. It has thrown itself into the contest over the wording of the declarations, seeking to keep them as general as possible. The competing versions illustrate the resulting problem. The first declaration made by Collins J reads:

Each of the competing drafts of additional matter, designed to make the declaration more relevant, selects the qualifications most useful to the position in the pending appeal of the party tendering it. But the fact is that neither the first declaration as granted nor either of the revised versions of it now before us adds anything of any value to Regulation 10(2) itself. To give a comprehensive account of the qualifications which attend it would turn it into an essay. But the declaration as made tells the reader little of any utility, not least because it replaces the mandatory requirement of Regulation 10(2) that once an application is made a permit “shall” be either granted or refused with the porous verb “may”. The reason for this, no doubt, is that the obligation of the Agency to grant a permit is conditional - first on there being a duly made application and secondly on there being no good reason for refusing it - but it is not discretionary. That it is conditional is true but uninteresting, and simply to say so is not a useful or apt use of the court’s declaratory function.

The value of Collins J’s judgment, as distinct from the agreed first declaration, is that it provides a reasoned determination – with which I also respectfully agree – that a piggybacking management of cells is not necessarily disqualified from the grant of a permit. Mr Turner now accepts as much without, however, abandoning the Agency’s view that for a variety of technical reasons it is extremely unlikely in practice ever to qualify. Why in this situation the declaration has been fought over at all is incomprehensible.

I agree with Lord Justice Pill’s reasons for quashing and not replacing the second declaration. For the reasons I have given I would do the same with the first.

I agree with both judgments, which I have had the advantage of reading in draft.