Edwards, R (on the application of) v Environment Agency & Ors

There has for very many years been a cement-making works on the outskirts of Rugby. In the mid 1990s its owners decided to replace the then-existing works with “state of the art” works embodying more efficient technology. Planning permission for the change was required and was granted by Warwickshire County Council on 23^rd February 1996. The operation of the new works was to be subject to Integrated Pollution Control (“IPC”) and accordingly the works’ owners applied for authorisation in the course of which they satisfied the Environment Agency that the plant represented “BATNEEC” – Best Available Techniques Not Entailing Excessive Cost. IPC authorisation was granted under Part I of the Environmental Protection Act 1990 in 1999 and the new kiln at the works began to operate in February 2000.

As the IPC regime was replaced by the Pollution Prevention and Control (England and Wales) Regulations 2000 the operators of the site, Rugby Ltd, a company at that time within a group headed by Rugby Group Ltd, was required to apply for a PPC permit by 31 August 2001. That Rugby Ltd (“the Site Operators”), did, on 21 August 2001. The application was a very comprehensive document and included a non-technical summary.

In the past the kiln at the works had burned coal and petcoke but the PPC application included a proposal that within specified limits and subject to the satisfactory completion of a trial the kiln would burn chipped tyres – disused or unsuitable vehicle tyres, broken down into pieces about the size of thick chunks of bark. Chipped tyres can make a very efficient fuel if burned at the very high temperatures and in the particular conditions which were proposed for the operation of the single kiln now at the site.

All the proposed requirements as to notice to others and advertisement of the Site Operator’s application were complied with. A number of public meetings were held. The Environment Agency (“the Agency”) asked the Site Operators for more information. The Agency took expert advice from its own “in-house” experts. Eventually, on 12^th August 2003 the Agency granted PPC authority not only for the ordinary continuing operation of the works but, subject to highly specific conditions, gave permission also for a limited trial use of chipped tyres as fuel.

On 28^th October 2003 the Applicant, Mr David Edwards, issued, by his solicitor, a Judicial Review Claim Form against the Agency as First Defendant, the First Secretary of State as Second Defendant and Rugby Group Ltd as Interested Party. It asked for judicial review of the Agency’s decision of 12^th August 2003. The Statement of Facts and Grounds began:-

“The decision impugned is one of [the Agency] permitting the Interested Party to trial burn waste tyres at its plant in Rugby.”

It had not unnaturally been the burning of tyres which, throughout the long course of events between the Site Operator’s application in August 2001 and the grant of permission on 12^th August 2003, had chiefly excited comment and opposition. I say that that was not unnatural as burning rubber is notorious for the noxious smell given off and the dense smoke created and many, unaware of the way in which the chipped tyres would be burned in a modern “state of the art” kiln at temperatures of up to 1400 degrees, would expect and fear the worst.

Mr Edwards’ original Statement of Facts and Grounds sought to impugn the decision of 12^th August 2003 on 3 grounds, the second of which related to “BAT” - “best available techniques” and the third was “BPEO” – “best practicable environmental option”. The first ground was that both the Agency and the Secretary of State had failed in relation to Directive 85/37/EEC (as amended) as to environmental impact assessment – the “EIA Directive”.

On 30^th December 2003 Sullivan J considered Mr Edwards’ application for permission to apply for judicial review. He refused permission. His observations were as follows:-

“1.

For the reasons set out in the Environment Agency’s acknowledgment of service the Claimant does not appear to have a sufficient interest to make this claim.

2.

The BAT ground is wholly unparticularised.

3.

The EIA and BPEO grounds are insufficiently particularised. General statements of principle (even if arguable) are all very well, but how do they relate to the details of this particular proposal and its impact on this particular claimant?”

On 5^th January 2004 Mr Edwards gave notice of a renewal of his claim for permission to apply for judicial review and an oral hearing took place on 19^th March 2004 before Keith J.

The Claimant, Mr Edwards, the Agency, the First Secretary of State and the Site Operator were represented by counsel. In his judgment of 2 April 2004 Keith J adjourned the application for permission to come on with the full hearing if permission were to be granted. The Secretary of State for the Environment, Food and Rural Affairs was directed to be joined as a party and other procedural directions were given. Keith J had ruled that Mr Edwards did have standing to bring the claim and that his claim was not abusive.

On 2^nd November 2004 Mr David Wolfe on behalf of the Claimant lodged a Claimant’s skeleton argument which at paragraph 1 said:-

“The Claimant challenges the Environment Agency’s (EA) decision of 12^th August 2003…granting a PPC permit… which allowed Rugby Ltd…to operate its cement plant… near his home in Rugby using waste tyres as a fuel in the plant on a trial basis…”

Although it is fair to say that the skeleton argument then delivered ranged beyond the burning of tyres, that remained, as it seemed, the principal cause of complaint. Skeleton arguments were also delivered in November 2004 by the Agency and the Site Operator. They, too, took tyre-burning to be the principal, if not the sole, ground of complaint. However, on 4^th March 2005, only shortly before the hearing before me, due to start on 8^th March, a “Supplementary” skeleton argument by Mr Wolfe was delivered. It moved the main focus of complaint away from merely the burning of tyres (which, if it transpired to be prohibited, would nonetheless leave the site able to operate as it had done burning coal and petcoke) and switched to such a form of challenge as would, if ultimately successful, deny altogether the ability of the plant to continue as it was, whether or not burning tyres as fuel. There was, however, no immediate application on Mr Edward’s behalf further to amend his “Statement of facts and grounds” which had already been amended very substantially in March 2004. The hearing before me thus began with there being something of a difference between the nature of the case indicated in Mr Edwards’ Supplementary skeleton argument prepared by Mr Wolfe and the amended statement of facts and grounds.

Mr Elvin QC and Ms K Smith on behalf of the Agency and the Secretaries of State and Mr Tromans for Rugby Group Ltd (and through Rugby Group Ltd, for the Site Operator, Rugby Ltd) did not object to this but did require that the amended Statement of facts and grounds should be further amended and replaced in such a way as to bring the grounds of challenge into line with the proposed argument which Mr Wolfe’s “Supplementary” skeleton argument indicated was intended to be the argument to be addressed to the Court. On 9^th March 2005, the second day of the hearing before me, a document headed “Claimant’s grounds of challenge” was produced by Mr Wolfe which represents, in summary, the final form of the grounds upon which Mr Edwards relies.

Vast tracts of evidence had been adduced in writing on subjects, including BAT and BPEO, which no longer form part of the Claimant’s case and, in turn, there is a good deal of evidence on the Defendants’ and Interested Party’s part which, it being in response to the ways in which the Claimant had earlier put his case, has also become redundant. That, however, goes chiefly to costs and delay which can, of course, be dealt with later. But it is in this way that I have explained that there now comes before me both Mr Edwards’ re-amended application for permission judicially to review and his re-amended application for such a review of the granting of the PPC permit and the accompanying Agency decision document (“the Decision Document”) of 12^th August 2003. Whilst, in point of form, tyre-burning is still complained of, that subject has become rather subsidiary. In very broadest outline, leaving aside for the moment a “transposition” argument, and although each of the 2 headings I shall refer to below will require further sub-division, Mr Edwards’ challenge, as I have understood it, may be divisible into 2 namely:-

Without intending thereby to beg any questions I shall refer to these two very broad headings as respectively “Full information and candour” and “Misunderstanding” and I will look first at the former.

As for the “transposition” argument, this is an argument which, if right, is of wide applicability. Mr Wolfe argues that there has been a failure by our legislature adequately to transpose into domestic legislation the provisions of the EIA and IPPC Directives. There is a category of significant environmental change, he says, which is not considered at the planning stage and yet which should be, but never is, adequately considered either by the Agency. This case, he says, is a good example. But in this case the Site Operator as Applicant provided a wealth of material, the Agency asked for and got yet more, it received (as will appear) its own internal advice and the objectors and consultees took advice and made representations. The failure of “transposition” says Mr Wolfe, has caused an ability to escape from the EIA regime and, in consequence, a failure to ensure there is adequate consideration of environmental proposals. But whilst it would be glib to refer only to the elapse of time, the consideration here given to the issues which I will look at in more detail below, was far from skimpy and was plainly intended, whatever holes can be picked in it, to be comprehensive. It took literally years: from August 2001 to August 2003. The absence of the alleged consequence suggests, in my view, the absence, too, of the alleged cause and I do not accept the “transposition” argument, at any rate so far as concerns issues relevant in this case.

Full Information and Candour

Mr Wolfe argues that under four separate but cumulative sources of obligation the Agency was required, but failed, to make available to consultees, including Mr Edwards, adequate information as to what the effect would be, in relation to emissions into the air, if the Site Operator’s PPC application were to be granted. The first of these four I shall look at is the EIA Directive.

The EIA Directive:

I use that title to refer to 85/337/EC as amended by 97/11/EC. In some cases projects likely to have significant effects on the environment are required to be the subject of an assessment with regard to those effects before consent to them is given – Article 2(1). In some cases that form of assessment is mandatory, in other cases it is not – Article 4. The form of such an assessment – an “EIA” or Environmental Impact Assessment – at any rate where the project “must” be subjected to one, is prescribed by Annex IV to the EIA Directive. I have not understood Mr Elvin to argue that there has been a recent EIA in the full prescribed form as to the Site Operator’s PPC application but he does argue that in fact no EIA was required in relation to that application and, even if one was required, that something so substantially akin to an EIA had been or was undertaken and publicised by the Agency that no real complaint can be made on such a count.

There is no strict requirement for an EIA unless there is a “project”, a term defined by Article 1 as meaning:-

“The execution of construction works or of other installations or schemes, other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;”

Mr Wolfe has two routes to there being a “project” within that meaning. The first is that the Site Operator’s proposals naturally fall within the language of the definition. I cannot accept that. For the continuing operation of the cement works, whatever fuel is burned, no construction works are required to be executed; no “installation” is required to be executed. Quite what is within the contemplation of the execution of a scheme is not entirely clear. However, the reference to “other interventions in the natural surroundings and landscape” and the specific inclusion of interventions involving extraction of mineral resources suggest that some physical work has to be done if a scheme is to be a “project”. But the Site Operator’s proposal is merely, in general, to continue operating the works and plant at the site as before, the need for the application being generated not by any physical change or by there being a material change of use in planning terms but by the regulatory change from IPC to PPC Regulations. Nor can I see that a change in the fuel used in the kiln at the works can be itself a “project”. If a mere change in the fuel consumed was intended to be a project within Article 1 then one might reasonably expect provisions amplifying what sort of degree of change was to be required in order that a “project” should emerge; would a change from part coal, part petcoke to wholly petcoke or a change from coal and petcoke to oil, for example, of itself amount to a “project”? Would it be a “project” if the proportion of one fuel burned to another, where more than one fuel was burned, amounted to a “project”? No such express provisions are to be found, nor can they be implied, in my judgment, on a fair reading of Article 1. A mere continuation of existing operations with a change in fuel does not, in my view, amount to a “project”, thus this first route to there being a “project” fails. The second of Mr Wolfe’s two routes to that end asserts that what is now being done amounts to waste disposal.

Whilst Article 4 (1) of the EIA Directive refers to projects “… listed in Annex I” as to which an environmental impact assessment is to be mandatory, Article 4 (2) describes projects – “listed in Annex II” – as to which an environmental assessment is not obligatory but as to which the Member State should, on either a case by case basis or by reference to thresholds or criteria, determine whether such an assessment should be made.

Annex I at items 9 and 10 refers to installations for the disposal of hazardous waste and large waste disposal installations for the disposal of non-hazardous waste. I have not understood the Claimant’s argument to be that the cement works is an installation within those descriptions.

Annex II includes at item 5 (b) “Installations for the manufacture of cement”. It was, no doubt, on that account that an EIA was required for the creation and operation of the plant in 1996. So long as the existing Installation remains no more than an installation for the manufacture of cement without any relevant change then no further EIA is required for its continued operation. But Mr Wolfe points to item 11 (b) of Annex II – “Installations for the disposal of waste (projects not included in Annex I)”. It is accepted on all sides that chipped tyres are waste within any relevant definition and Mr Wolfe argues that upon the granting of permission for the burning of up to the permitted maximum of 10 tons of chipped tyres per hour (not exceeding 40% thermal substitution) the plant becomes an 11 (b) project and that accordingly the Agency as our domestic authority was required, but failed, to consider whether an EIA should be made, either on a case by case basis or by reference to some threshold or criteria.

There is no evidence that suggests that the Agency turned its mind to whether the plant was or would become a waste disposal installation within that Item 11 (b).

I have not had my attention drawn to any provision such that where it should have been considered whether there should be an EIA but where that was not considered and where the case falls, if anywhere, within the discretionary class of Annex II, that it should be taken, without more, that had the matter been considered there would have been a determination that there should have been an EIA. However, I shall assume that that is part of Mr Wolfe’s argument.

But can it be said that the existing installation for the manufacture of cement (Item 5 (b)), which is not said to cease to be an installation for the manufacture of cement merely upon its choosing to burn tyres as part of its fuel, is, on that account, alternatively or in addition, an installation for the disposal of waste and, as such, a fresh “project”? There are, as it seems to me, a number of answers to that question. Firstly, as I have said, and for the reasons I have given, I cannot see the proposal to burn tyres as a fuel to amount to a “project” within Article 1 (2) to the terms of which I have already made reference.

Secondly, there is, contrary to Mr Wolfe’s argument, no need to accede to his argument in order to avoid abuse; Annex II Item 13, as I shall come on to, deals with changes in existing projects in such a way that any likely abuse can be countered.

Thirdly, Mr Wolfe is here arguing for the need for consideration within Article 4 (2) to have been given irrespective of the “change” provisions of Annex II Item 13 yet the Directive makes no express provision for any such case. One can readily see that where there is a fresh execution of relevant works at, or other activity falling within Article 1 (2) to, an existing Annex II installation then fresh Article 4 (2) consideration needs to be given. Thus if, for example, a project of intensive fish farming (Item 1 (f)) elected to embark on deep drilling for its water supply (Item 2 (d)) or if an existing caravan site (Item 12 (d)) chose to erect a wind farm – (Item 3(i)) in order to produce its electricity then such new works would plainly require such consideration as such “projects” do. But it would be reasonable to expect of the legislation, if something that was neither of itself a fresh project nor an Item 13 change was being embarked upon, that if that alone was intended to lead to a fresh Article 4 (2) consideration, then there would have been some express provision in that behalf. There is none.

Fourthly, there is a observable distinction in Community provisions between waste disposal and waste recovery – see the Waste Framework Directive 75/442/EEC as amended by 91/156/EEC which speaks of waste being “recovered or disposed of” and see also Annex IIA–disposal - and IIB-recovery - of that Directive. The meaning of “recovery” in connection with waste and the Waste Framework Directive was considered by the European Court of Justice in Commission of the European Communities –v- Federal Republic of Germany [2003] ECR I – 1439 where at paragraph 45 the Court said:-

“45.

It follows from Article 3 (1) (b) and the 4th Recital of the Directive that the essential characteristic of a waste recovery operation is that its principal objective is that the wastes serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources (ASA, cited above paragraph 69).

46.

The combustion of waste therefore constitutes a recovery operation where its principal objective is that the waste can fulfil a useful function as means of generating energy, replacing the use of a source of primary energy which would have had to have been used to fulfil that function.”

See also Commission – v - Luxembourg [2003] ECR I – 1553 at paragraph 37.

Fifthly, none of such domestic authorities which I was referred to, although none is wholly in point, does anything to support a view that incineration of waste as fuel (a fortiori when it is not the only or even the principal fuel) is properly to be regarded as waste disposal as opposed to waste recovery – consider R –v- Environment Agency ex parte Gibson [1999] Env LR 73; R –v- Durham CC and Lefarge Redland Aggregates Limited ex parte Elaine Lowther [2002] Env LR 349 CA and Castle Cement –v- Environment Agency [2001] Env LR 813.

For these reasons I do not hold that the proposed use of tyres for burning as fuel by the existing installation for the manufacture of cement amounts to a proposal for such a project by way of being an installation for the disposal of waste as would have required a fresh consideration to be given (within Article 4 (2)) of whether an EIA should be made. Accordingly the Agency is not at fault in not considering that question.

An alternative route which Mr Wolfe has to there having been a need for an EIA before any consent to the Site Operator’s application was given is that tyre-burning represents a change falling within paragraph 13 of Annex II of the EIA Directive. Paragraph 13 provides, so far as material, as follows:-

“Any change or extension of projects listed in Annex I or Annex II, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment.”

Such a change requires there to be an EIA. Installations for the manufacture of cement are projects listed in Annex II at item 5(b) and the works at Rugby had already been authorised under the IPC Regulations as I have explained. If, therefore, the Site Operator’s application proposed any change which might have a significant adverse effect on the environment then it would require an EIA whether or not what was proposed amounted itself to a “project”. But the only change that is proposed is as to the burning of chipped tyres as one of the fuels, the lesser one, to be burned in the kiln. I shall have below to look in more detail at whether the continuing operation of the site, whether or not burning tyres as fuel, has any significant adverse effect on the environment but 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. I thus cannot see the “change” provision as assisting Mr Wolfe in his argument that there needed to be an EIA assessment.

Having considered the three different routes by which it has been argued that an EIA was required, I find none to support the argument that there should have been one. I thus do not hold the Agency as being to any relevant extent, procedurally or otherwise at fault in not conducting a full and formal EIA in response to the Site Operator’s 2001 application.

That being so, it is unnecessary for me to consider at any length whether the steps taken prior to the decision by the Agency can fairly be taken to be something so substantially akin to an EIA that complaint on that ground cannot be made. Had I had to decide, as I do not, I would be likely to have held that Mr Elvin’s argument that there had been something so substantially akin to an EIA as to deny Mr Edward’s complaint that there had been none was a powerful argument, as also was Mr Tromans that, having regard not only to the Site Operator’s PPC application and its components of August 2001 but also the earlier assessments going back to the mid 1990s, there had in fact already been an EIA as full as necessary. I see force in the view (which goes also to the transposition argument) that Mr Edwards’ argument goes merely to form, not to substance.

Mr Tromans mounted a substantial argument that, without needing to descend to determining what was a “project” or a “change” for the purposes so far discussed, the earlier planning consent of 1996 as a development consent and the IPC authorisation rendered this being a case in which there was no need for a further EIA even if (which was denied) there was a “project” or a “change” which otherwise would have required one. He emphasised, too, that it was both far too late to challenge the 1996 planning consent and that, in the absence before me of Warwickshire County Council, the grantor of that consent, any challenge to it was doubly impossible. As I have come to a clear conclusion that there is no real “project” or “change”, I shall leave Mr Tromans' argument to be dealt with in a case in which it is necessary that it be ruled upon and where the appropriate parties are all before the Court.

The application was no application:

The next source of obligation which Mr Edwards asserts is the combined effect of the PPC Regulations and the relevant IPPC Directive.

Paragraph 10(1) of the PPC Regulations requires (so far as here material) that an application for a permit to operate an installation is to be made to the Agency “in accordance with paragraphs 1 to 3 of Part 1 of Schedule 4…”. Schedule 4 Part 1 provides at its para 1(i) that an application for a permit shall be in writing and “shall contain the following information”:-

“(g)

The nature, quantities and sources of foreseeable emissions from the installation…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;

(i)

The proposed measures to be taken to monitor the emissions”.

I do not accept the argument, that I think is raised here too, that the Regulations fail adequately to transpose the requirements of the Directive into domestic law.

The argument is, I believe, this: the Site Operator’s application failed to state all the details falling within Schedule 4 paragraph 1(i), in particular as to the information specified in subparagraphs (g) to (i). The application should thus not have been treated by the Agency as an application at all. Had it thus been rejected no doubt the Site Operator would have reapplied with further and better information and, in turn, the public, including Mr Edwards, would have better seen the shortcomings in the application and would have been better able to raise and pursue complaints, which the Agency would have been obliged to consider, and which might have led to the application failing.

However, the particulars required in (g) to (i) are, as to emissions into the air, the only emissions here relevant, far from absolutes; so many variables require to be considered that different persons, however expert, could well have very different views as to what was foreseeable and what effects were likely and whether those effects were significant or not. There is no requirement, Community or domestic, that the application itself has to include air modelling (although this one did, albeit not ones as to PM10s from LLPS – the meaning of which I will explain below). It is for the Agency as the decision-maker to decide if the totality of the information it is given is adequate to stand as an application; – Reg. on the application of Bedford & Anor –v- London Borough of Islington & Anor [2002] EWHC 2004 (Admin) per Ouseley J, 31 July 2002 para 199. So long as a given Applicant appears to have made a bona fide and informed attempt to compose an application complying with the requirements of the Regulations and the decision-maker is content he has so complied as nearly as may be, I do not see that it would be at all appropriate for the Agency simply to dismiss it out of hand as not even amounting to an application. The very fact that the Regulations enable the Agency to ask for further information suggests that one can have an application, properly to be treated as such, notwithstanding that it is not in every respect already comprehensive and complete. Under paragraph 4, Part 1 of Schedule 4 the Agency:-

“…may, by notice to the applicant, require him to furnish such further information specified in the notice, within the period specified, as the [Agency] may require for the purpose of determining the application and if the applicant fails to furnish the specified information within the period specified the application shall, if the regulator gives notice to the operator that it treats the failure as such, be deemed to have been withdrawn at the end of that period”.

There is thus, obviously, an adequate sanction available to the Agency should there be a persistent failure to give information that is truly needed if the application is to be properly determined.

It has not been said, nor do I think that it could have been said, that the Site Operator’s application was not made bona fide by the Applicant, intending and believing it to be an application properly-so-called. In my judgment it did not fall so short of the regulatory requirements that it could not truly be described as an application. The Agency did, under paragraph 4, ask for further information and it was given. The argument that the Agency acted unlawfully in treating the Site Operator’s application as one duly falling within the Regulations is an argument that in my judgment fails.

Legitimate expectation:

A third source of obligation asserted by Mr Wolfe is that of a legitimate expectation having been created by a press statement made by the Agency on 18 April 2002. The more material parts of that press statement, which was made on the subject of the Site Operator’s PPC application, were as follows:-

“The Agency is now in the process of investigating:

•

Whether the company are using best available technology

•

The impact on health

•

The use of energy

•

The impact on the food chain

•

The impact on the environment

Decisions will be based solely on an assessment of all the information received and the comments from statutory consultees and members of the public.”

As for the earlier part of the citation, there is nothing to suggest that the “process of investigating” which the Agency was said to be “in” was limited to investigation of material which had been supplied to the Agency by the Site Operator or by the Site Operator in the application itself or that it would not include investigation of material gathered by the Agency. As for the latter part of the citation, given the width of the earlier citation, I do not feel able to read the words “the information received” as intended to indicate that material gathered by the Agency itself could not fall within the matter to be assessed. “Received”, in context, was wide enough to include what the right hand of the Agency, so to say, received from the left. I would accept that the press statement indicates that the decision would be based on “all” as opposed to some only of the information received, but, as I shall come on to, whilst Mr Edwards can and does complain that two highly relevant internal reports of the Agency on the subject of the PPC application were not made public nor were clearly referred to in the Decision Document or permit of 12 August 2003, it cannot be argued, in my view, that an assessment of them did not take place nor that such an assessment was not taken into account in the decision-making process. In these circumstances I do not see that the press statement assists Mr Edwards even supposing (as to which I am unpersuaded) that he was aware of it and so closely studied it that his study led to any legitimate expectation at all in his mind.

Disclosure:

I turn then, to the fourth source of obligation, which can be summarised as “fairness” and “all cards on the table”. It is not disputed that the consultation that was required to take place was to be fair and that one of the several and varying components of fairness is the disclosure of relevant material, at any rate where there is no good reason for its non-disclosure. Consultees can expect and require to be told “enough (which may be a good deal) to enable them to make an intelligent response” – Reg –v- North & East Devon Health Authority, ex parte Coughlan [2001] QB 273 at para 119, page 25g CA and see Silber J in Capenhurst infra beginning with the citation from Lord Mustill as follows:-

“Lord Mustill also explained in R –v- Secretary of State, ex parte Doody [1994] 1 AC 531 at 550 that:-

“(5)

Since the person affected cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer”.

In order to determine whether proper consultation in this particular case has taken place, it must not be forgotten that:-

“…the precise demands of consultation…vary according to the circumstances…the extent and method of consultation must depend on the circumstances. Underlying what is required must be the concept of fairness (per Keene J as he then was in R –v- London Borough of Islington, ex parte East [1996] ELR 74 at page 88 relying on a passage in the judgment of Simon Brown LJ in R –v- Devon County Council, ex parte Baker [1995] 1 All ER 73 at 92.”

Here I need to refer in more detail to the Agency’s two internal reports which I have already mentioned.

Within the Agency there are a number of individuals assigned to the Air Quality Modelling and Assessment Unit (“Aqmau”). The witness statement of a member of it, Dr Betty Ng, explains that Aqmau offers independent advice to Waste and Process Industry Regulation colleagues in the Agency on all air quality matters. She adds that Aqmau’s primary rôle is to ensure a consistently high standard of regulatory air quality modelling and assessment across the Agency. She explains that she had been asked to do a “desktop modelling exercise in air dispersion” relating to emissions from the Rugby site. The instructions given to Aqmau have not been seen; they were said by counsel to have been “informal”. Work was done by Aqmau between October 2002 and January 2003 and, she continues, “Aqmau issued a report on its study on 7^th January 2003”. A little later she added:-

“Although the Aqmau is part of the Agency, our advisory work is entirely independent of the decision-making process in relation to individual permit applications.”

That disclosure by Dr Ng was on 9^th November 2004 and was the first indication to Mr Edwards or the public generally of the existence of an Aqmau report of 7^th January 2003. Although Dr Ng’s first witness statement referred to that Aqmau report it did not exhibit it although it was later disclosed, in May 2004, in the course of these proceedings.

Yet later, on 4^th March 2005, the fourth witness statement of Mr David Sheldon, a Process Industries Regional Technical Adviser within the Agency and the person chiefly having the conduct of the Agency’s response to the Site Operator’s PPC application, indicated that there had been what he described as a “draft report” from Aqmau of 21^st November 2002. The existence of that report had not been disclosed to Mr Edwards or the public generally prior to that. As it was the first in time it is convenient to speak of the report of 21^st November 2002 as “Aqmau 1” and that of 7^th January 2003 as “Aqmau 2”.

At this point in the argument I am more concerned with the form than with the content of Aqmau 1 and Aqmau 2, which I shall come to later. Aqmau 1, a document which, with its tables, is of some 85 pages, is headed “Assessment of the impact on air quality of the operations of RMC Group Service’s Ltd cement works at Rugby”. It is headed as “prepared by Bethan Tuckett-Jones, National Air Quality Scientist” and as “checked by Ji Ping Shi, National Air Quality Specialist”. It is marked as “approved by Betty Ng, Technical Manager Air Quality”. It is dated 21^st November 2002. Its first passage is headed “Executive summary” and it indicates that the report models and assesses the air quality impact of the operations of the cement works at Rugby in order to inform the Environment Agency as to whether the air quality objectives it there mentions are likely to be met in the surrounding area. It is nowhere marked as a “draft” nor does its text indicate that it is a draft or that it is tentative or provisional in the way one might expect of a draft. It contains no mention of the steps likely before, or when, a final report will emerge. It appears to be what its own executive summary described it as, an assessment of the air quality impact of the operation of the cement works.

Aqmau 2 is a very much shorter document, occupying, with its tables and maps, only some 17 pages. It, too, begins with an executive summary which says that it assesses the likely air quality impact of the proposed emissions from the Rugby cement works.

I have not understood the Agency to argue that an assessment of Aqmau 1 and Aqmau 2 did not form part of its decision-making process and, indeed, had they not formed part of it, that would have added force to the argument, which I have already dealt with, as to the press statement of 18 April 2002 as tending to create a legitimate expectation that all information received by the Agency would be assessed. Moreover, in a letter to an objector of 31^st January 2003 the Agency had described the modelling as “fundamental to the Agency’s decision making process”. On the basis, then, that Aqmau 1 and Aqmau 2, which are plainly highly relevant and expert material on the subject of emissions to the air, were considered and intended to be considered by the Agency in its decision-making process, should they not have been disclosed to the public in general and to Mr Edwards in particular before the Decision Document and the granting of the PPC authority on 12^th August 2003, as “fairness” would seem to require?

Whilst the question does not require a detailed look at what the two reports said, to which I will return later, 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 – “LLPS”. 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?

As for Aqmau 1, it is said in evidence that it was merely a draft. There is unchallenged evidence to that effect although it was adduced so late that any challenge would in any event have been impracticable. But I see real force in Mr Wolfe’s response that the subject of PM10s as it emerged from Aqmau 1 was, objectively regarded, so important a topic that the fact that Aqmau 1 was only a draft could only excuse its non-production if it was in the Agency’s mind to disclose the report in its final form. The events, as they happened, show that that was not the case. Bearing in mind, too, that in point of form Aqmau 1 was not on its face incomplete, tentative or provisional, I do not see the mere fact, accepting that it was a fact, that it was intended as a draft excused its non-production.

Nor, to deal with a point touched on in the papers but not emphasised by Mr Elvin, do I accept that disclosure of Aqmau 1 or Aqmau 2 would have prejudiced the Agency’s deliberations. It might have delayed the ultimate decision in the sense that, at lowest, disclosure would have been likely to have led to the objectors saying that they required further time in order to consider the important topics then (had they been disclosed), if not emerging, at least given substance by the reports. Disclosure could only truly have prejudiced the decision-making process if the Agency had been resolved, whatever material it had before it, to determine in the Site Operator’s favour. It would be quite wrong to take that view, so I fail to see any relevant prejudice to the Agency’s process.

Nor do I accept Mr Elvin’s initial reaction that Aqmau 1 and Aqmau 2 were doing no more than to test the veracity and check the substance of the material that had been provided in the Site Operator’s application and that also which had been provided by way of supplement to that in response to requests made by the Agency. Had that been the case one would have expected Aqmau 1 or Aqmau 2 to refer to the material contained within the Site Operator’s application in some detail and to have had paragraphs that said that they accepted this, did not accept that and would have wished to qualify the other. Such provisions are not found and I do not regard it as an accurate description of Aqmau 1 or Aqmau 2 that they were merely testing or checking in the way that Mr Elvin had suggested.

The most powerful argument raised by the Agency to justify its non-production of the Aqmau reports is based on a principle said to be derivable from Bushell –v- Secretary of State for the Environment [1981] AC 75. There comes a point in the necessary processes at which consultation ends and, argues Mr Elvin, decision-making begins. But the decision maker is free to advise himself and he is not, in the course of his doing so, obliged to reopen consultation or make available generally such advice as he gives himself. It may not invariably be clear that consultation has ended or that decision-making has begun but here, says Mr Elvin, Aqmau 1 and Aqmau 2 were plainly no more than the Agency advising itself as part of the decision-making process and there was, accordingly, no requirement upon them, in either domestic or European law, to make the Aqmau 1 and Aqmau 2 reports available to objectors.

In Bushell at page 102f Lord Diplock said, of a Minister’s decision on a planning matter after a public enquiry:-

“Once he has reached his decision he must be prepared to disclose his reasons for it, because the Tribunals and Inquiries Act 1971 so requires; 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.”

At page 102 – c-d he had held it to be not possible reasonably to suggest that the minister was “bound to communicate the departmental advice that he received to the promoting authority and the objectors”. Accordingly, one can well see that such passages, coupled with the long passage, the principal passage relied upon by the Agency, between page 95e and page 96a in the same speech, provide a fertile soil in which Mr Elvin’s proposition might be thought to have grown. However the context of Bushell requires closer attention. The relevant complaint by objectors was that the Inspector who had conducted the public inquiry, in connection with a proposed motorway, had based his view on “the red book”, a form of assessing future traffic growth which, after the public inquiry had been completed but before a decision was made, was replaced by a different form of assessment adopted by the Executive, a form which would have more the suited the objectors than had the red book. The objectors asked that the public inquiry should be reopened to hear submissions and evidence on the new form of assessment. The House of Lords refused that. But there are very real distinctions between that case and the one before me.

The first is that it was there held that the form of assessment to be used of future traffic needs was properly to be regarded as a matter of governmental policy. The motorway was a government proposal; it needed to link up with proposals by the government as to other motorways and as to the government’s existing motorways and was going to be paid for by the Government. Lord Diplock at page 100h said:-

“I think that the Inspector was right in saying that the use of the concept of traffic needs in the design year assessed by a particular method as the yardstick by which to determine the order in which particular stretches of the national network of motorways should be constructed was government policy in the relevant sense of being a topic unsuitable for investigation by individual inspectors upon whatever material to be presented to them at local inquiries held throughout the country”.

Thus in Bushell the objectors were pressing for an opportunity for the inquiry to be reopened in order to deal afresh with a subject which was not in any event one proper for a local public inquiry but rather was a subject on which the Minister could be expected to adopt governmental policy, namely the particular red book form of assessment, whether, objectively regarded, it was right or wrong. By contrast, firstly, the emissions of PM10s from LLPS cannot be said in any corresponding way to be exclusively matters of Executive policy nor in any corresponding way can it be said that there is a policy which the Agency is entitled to adopt whether or not, objectively regarded, it, the policy, is right or wrong. In contrast with the position in Bushell, the Agency, considering not an Executive proposal but one that was to be paid for by a company, could reasonably be expected to act on whatever facts were available to it as there was no relevant policy to fall back on. Thus the case for the objectors and the public generally being able to be aware of what facts were likely to influence the decision is quite different in the case before me than it was in Bushell.

At least as great a distinction between Bushell and the case before me is that in Bushell there was no question of material facts not being disclosed by the Executive to the public or the objectors. The revised form of assessment of traffic in Bushell was published before the Inspector reported, and hence also before the Minister, made his decision – page 102g; page 109c. Unlike the case before me, in Bushell there could be no argument that material plainly likely to be relevant to the decision (and in fact - see page 123c-h – taken into account in the decision) had not been available to, or had even been known to exist by, the objectors.

A third distinction is that in Bushell – see page 104c-d – the Minister had expressly indicated, despite having decided that the motorway should go ahead but long before it had begun to be built, that:-

“If your committee wishes to make further representations, such representations can always be considered by the Secretary of State as part of the continuous consideration of any of the Department’s proposals.”

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 objector’s views deriving from Aqmau 1 and Aqmau 2 in the course of any such continuous consideration.

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 – page 95d: what is fair depends on the nature of the subject matter – page 95d. To paraphrase Lord Diplock’s remarks at page 96d 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 a 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.

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 the appearance of discussion and interplay than with real dialogue. 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.

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(i)(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. This shortcoming is the only conduct of the Agency or the Site Operator which to any material degree can, in my view, be described as unreasonable or unlawful under the first of my two broad headings, “Full Information and Candour”. I thus turn to the next.

Misunderstanding

Mr Wolfe argues that the Decision Document, the author of which was Mr David Sheldon, who, as I have mentioned, is a Process Industries Regulation Technical Adviser at the Agency, indicates a misunderstanding of or a failure duly to reflect the air pollution information which the Agency had to hand. Mr Wolfe concentrates his attack on information as to those particulates, very fine dust particles, described, by reference to their size, not exceeding 10 microns in diameter, as PM10s. The complaint is concerned not so much with emissions from the main stack or chimney at the cement works, some 115 metres high, but from what are referred to as the site’s LLPS, low level pollution point sources, the lowness there referring to their relative closeness to the ground level rather than to any potentially polluting content of their emissions being low.

Whatever figure is given for the PM10s per cubic metre of air it is not to be thought that every particle in that volume is thus 10 microns in size; the indicator “PM10” is, rather, a convenient way to indicate that in that volume, whatever lesser size and whatever number of the particles there may be within it, no particle within it exceeds 10 microns.

There is no reason to think that the emission of particulates from LLPS on the site would vary, to any material degree or perhaps at all, depending on whether tyres were being used as fuel, nor that PM10 emissions from the main stack, considered as part of the background of particulates in the air from sources other than the LLPS, would be added to significantly were tyres to be burnt to the permitted levels rather than coal or petcoke. There are, though, a host of factors, even including the shape, size and porosity of buildings, that may need to be taken into account when one seeks to assess the dispersal patterns and practical effects of emissions of particulates from LLPS.

Whilst I am very unlikely to have noticed all of them, it is plain that it will be necessary, in seeking to assess effects, to have in mind many factors, including the periods over which any given source emits, the times of day or night at which it emits, whether, over the period it emits, it emits continuously or spasmodically and whether, whilst it emits, its emissions are constant or not in quality and content (such as the temperature, volume, speed of emissions and the amount and size density of particulate matter within the emission). It will be necessary also to reflect on whether the times of the emissions from one LLPS overlap with the emissions from one or more of the others, unless all emissions are constant, and whether peaks and troughs in one coincide or not with those in others. As the overall effect of particulates in the air will depend also on what is contributed by sources outside and unrelated to the cement works site, peaks and troughs from such extraneous sources may also need to be considered. To such consideration one needs to add all the many meteorological factors such as wind direction, temperature and speed which are likely to affect dispersal of whatever is being emitted.

As one step in order, no doubt, to try to assess such factors in some satisfactory and relatively uniform way, the Agency has developed a “Horizontal Guidance Note H1” to assess whether emissions from an installation are “environmentally significant”, a term which is not to be automatically equated with actual threat to the environment or health but which indicates that emissions are at least at a level that requires consideration of reduction measures. H1 criteria were applied to the emissions both from the main stack and from LLPS. The Decision Document states (para 7.63):-

“The assessments were undertaken on a precautionary, worst case scenario basis. First, it assumed that all emissions would be constantly at the maximum permitted levels the Applicant applied to be set in the permit. This is highly unlikely to be the case during normal operation of the installation.”

There may be some ambiguity about the word “constantly”; does it mean “round the clock, day in and day out” or merely refer to the level of emission, whilst there was any emission, being constantly kept at maximum permitted level? I take the latter to be intended. One of the reasons why emissions of such a kind were unlikely from the main stack was that the conditions imposed by the Permit specified for it maximum permitted levels lower than the Applicant had asked for.

The main stack emissions of particulates were found not to be environmentally significant either viewed in the short-term or over the long-term and Mr Wolfe pursues them no further in this application but LLPS particulate releases were subject to both H1 methodology and air dispersion modelling, the latter being a discipline involving application of one or more differing mathematical approaches to computation of likely dispersal patterns. Whilst “monitoring” consists of the recording of actual levels of pollutants, “modelling” is a tool used in the prediction of what will occur. More than one system is available for modelling and they do not always agree in their predictions and in any event their predictions can be found to disagree with monitoring of what actually occurs.

There were 15 LLPS on the site which Aqmau modelled and, turning in more detail to LLPS and particulates, the Decision Document indicates (para 7.158):-

“…. that their cumulative effect warrants further investigation. The assessment also predicted that the relevant EQS [statutory Environmental Quality Standard] will be breached locally, if all the sources were emitting at the ELV’s [Emission Limit Values] at the same time and all particulate is assumed to be PM10. This is a very conservative approach and is very unlikely to occur in practice.

In addition, there are uncertainties with the modelling used to carry out this particular H1 assessment (although it can with certainty be said to have been very precautionary and to have overestimated the actual impact), because of the physical layout and variability of the emission conditions. The Agency considers that in reality the relevant EQS may not be exceeded.”

So far as concerned the adequacy of the assessment methods that were deployed, the Decision Document stated (para 9.7) that the Agency considered the assessment to have been thorough, detailed and appropriate and its determination as having been made with all the relevant facts (paras 7.46 and 9.7). The results of the assessment were set out in some detail and examined on the basis that an emission was to be taken to warrant further consideration if the maximum predicted environmental concentration, the maximum sum of what was coming from the Installation and from the general background, exceeded 70% of the environmental standard for particulates. The assessment assumed that the installation emitted constantly at the ELVs proposed in Rugby’s application, although, as I have mentioned, there were to be conditions in the Permit that contradicted that assumption as to emissions from the main stack.

Over the short-term that figure of 70% of the environmental standard for particulates was predicted to be exceeded on the assumptions made in the Decision Document – “…but only because of the already high background levels” - para 9.28 - with the contribution from the main stack being “relatively minute”. The Decision Document continued (para 9.28):-

“It should also be noted that the short-term assessment is precautionary, in that the maximum process contribution and the maximum background concentration may be separated both spatially and temporally such that the addition of the “worst case” contribution is unlikely. H1 suggests a more representative view can be obtained by comparing the short-term PC with the long-term background contribution …. and in this case that calculation would amount to 45% of the [statutory Environmental Quality Standard]. The Agency notes that no Air Quality Standard is breached.”

The assessment also assumed, as noted in para 71 above, that it was unlikely that all the sources were emitting at the ELV at the same time and that all the particulates were PM10s, adding, in part in the same language as that of its para 7.158, (para 9.46):-

“The Agency’s view is that this is not a situation that is likely to occur in practice.

In addition, there are uncertainties with the modelling used to carry out the H1 assessment (although it can with certainty be said to have been very precautionary and to have overestimated the actual impact, because of the physical layout and variability of the emission conditions). The Agency considers that it is possible that, in reality, the relevant [statutory Environment Quality Standard] may not be exceeded. As explained above, the current abatement techniques are considered to comply with indicative BAT [best available technique].

However, Condition 9.1.1.13 has been included in the Permit requiring the Applicant to investigate the ground-level concentrations resulting from these combined emissions, which will help to clarify the position and will enable the Agency to consider further whether additional abatement measures might be justified on BAT grounds.”

That reference to Condition 9.1.1.13 is to a condition which provides:-

“The operator shall complete a comprehensive audit of all particulate emissions from the site including point source and fugitive emissions. The audit will then be used to assess the combined impact of the emissions on air quality for both short-term and long-term scenarios. The operator shall develop BAT proposals for any remedial work required. A report outlining the assessment, its conclusions and measures to address any issues raised is to be forwarded to the Agency.”

That was required to be done within 12 months from the issuing of the Permit.

Mr Wolfe attacks those conclusions of the Decision Document especially in relation to the assumptions that are there made. It will have been seen that at various points in its analysis the Agency spoke of the assessment as having assumed (i) that all emissions would be (ii) constant (iii) at the higher maximum permitted levels which the Applicant had applied to be set in the Permit. That was unquestionably conservative (in the sense of tending towards its justifying a complaint that there would be greater or significant pollution) at least in the sense, as I have already mentioned, that the Permit in some cases specified lower permitted levels of emission than the Applicant had sought. At another point in the Decision Document it assumed (i) that all the sources were emitting (ii) at the Emission Limit Values (iii) at the same time and that (iv) all particulates were assumed to be PM10s. As already seen assumptions were also made as to the respective maximum contributions from the cement works and from other background sources being co-incident whilst in fact they may be separated (i) spatially and (ii) temporally.

Mr Wolfe cannot usefully attack the assumptions themselves as unjustified or, as would be even more difficult to do, as so unreasonable that no person charged with writing the Decision Document could reasonably adopt them, as that would require not only further information and detailed expert evidence but, as would be likely, a long and technical cross-examination of respective experts.

For example, Mr Wolfe asserted in argument that to assume that the LLPS particulate emissions were of PM10s was not a conservative assumption as smaller particulates could be or were even more harmful than those having a 10 micron dimension. But there was no evidence of that and, in any event, there was no evidence that any of the particulates actually emitted were or would be significantly smaller than 10 microns. These are exactly the kinds of dispute on which detailed expert evidence would be required if a useful attack were to be made. There was no such evidence drawn to my attention. However, Mr Wolfe is entitled to and does attack a number of assumptions on the basis that Mr Sheldon either misunderstood the air quality information which he was being given or, at a number of points, discounted information as based on assumptions which were too conservative on the very same grounds upon which those who had compiled the Air Quality information which he had received had already made discount. This was referred to as the “double discount” argument.

Looking, then, to the air quality information which Mr Sheldon received and first to Aqmau 1 and the assumptions made therein, its authors were given information as to the installation’s working hours but proceeded in part on the basis that the plant operated 105 hours per week rather than the 100 hours of which they were told. That was “conservative” in the sense in which that word is being used. Other assumptions were made as to operations; a bagging plant (an LLPS) was subjected to the assumption that its filters operated from 0700-1900 whereas the information given to the Agency’s air quality team was that the filters operated for 12 hours out of each 24 (not necessarily, therefore, during those daytime hours). Assumptions also were made as to the operation of another LLPS, a wet scrubber, an assumption described in Aqmau 1 as conservative. Many of the parameters required for modelling had to be estimated. Modelling was conducted on the assumption that the LLPS were emitting continuously. Yet another assumption was made as to the background concentration of PM10s. So far as concerned PM10s, Aqmau 1, referring to milligrammes per cubic metre, concluded:-

“For all statistics, the ambient concentration of PM10 contributes a significant fraction of the relevant Air Quality objective. In fact, the predicted ambient mean annual PM10 concentrations in 2004 in Rugby is 22.5 ….. which is within the annual mean objective for 2004, but exceeds the objective for 2010. The 90.41 percentile of daily mean ambient PM10 concentrations is predicted to be 40 …. which represents 80% of the relevant daily mean objective. There is, therefore, little environmental headroom for particulate emissions.”

I will refer later to there being little headroom. Because PM10 emissions from the main stack were low it followed that LLPS dominated the cement work’s contribution to PM10 ground level concentrations, as to which, said Aqmau 1, there was a significant risk of exceedance. Aqmau 1 continues:-

“This risk is lowest when the plant is operating under “normal” emission conditions. The modelling suggests that the risk of exceedance is significantly increased over normal operating conditions, when the plant is operating at the proposed PM10 limits.

However, …. the specification of the low level particulate source terms is problematic and leads to large uncertainty in modelling their impact. The model results indicate that monitoring of both emission concentrations and flow rates is warranted.”

The Executive Summary with which Aqmau 1 began did not advise that any Air Quality objective was broken or would be but that:-

“The modelling work suggests there is a possibility that some air quality objectives may be exceeded….”

the PM10 objective being one of them. It reported that monitoring of LLPS should be undertaken.

As for Aqmau 2, it began with a view that because of the high background concentration of PM10s, the Air Quality objectives for PM10s were likely to be exceeded and reiterated that view later, thus according with Aqmau 1’s view that some Air Quality objectives might be exceeded. Aqmau 2 identified 15 LLPS in detail and specified their operating hours which, as to the first 5 were given as “weekends and nights to 100 hours per week” and as to the rest were specified as 12 hours per day save for three at 24 hours per day and the wet scrubber at 4 hours per day.

There are, as it seems to me, a number of answers to the double discounting argument. Firstly, it is plain that the assessment of dispersal of PM10s from LLPS, by modelling as opposed to monitoring, can be sought to be done by a number of techniques not necessarily throwing up the same answers. Many assumptions have to be made. It is a subject riddled with variables and uncertainties such that one expert can come to one view and another to another with the differences readily being explained without recourse to any misunderstanding having occurred and without any unreasonable assumptions being made.

Secondly, to look at a particular example, one double discount identified by Mr Wolfe depends, as it seems, on a contrast between what the Decision Document says and what the Site Operator had said. The subject is the size of particulates. Looking at the first limb, so to say, of the alleged double discount, Mr Wolfe says that the Decision Document proceeds on the basis that some particles will be larger than PM10 and he identifies paras 7.155 and 7.158 of the Decision Document as saying so. But the Decision Document does not, at any rate in terms, say that some particles will be larger than PM10; it says that the Agency has in its air modelling used the “conservative assumption that all particulates are the PM10 fraction” and that “all particulate is assumed to be PM10”. I do not understand that necessarily to indicate, at all events to a layman, that some particulates will be larger than PM10s, still less that particulates from LLPS will be larger than PM10s. What is conservative as to one form of potential pollution is not necessarily so for another and to some extent the propriety or not of an assumption as to the size of particulates must depend on what the sizes truly were, a matter not for modelling but for monitoring. Whether those passages do indicate to an expert that it was being assumed that there will be particles larger than PM10, that such assumption was unjustified and what would be the significance of that are exactly the sort of questions which expert evidence would have been needed to resolve. So the first limb of the alleged double discount is, as I read the matter, somewhat shaky. Turning to the other limb, Mr Wolfe says that the Site Operator had said to the Agency that emissions from LLPS were not larger than PM10. But the paper identified as the source of that message says only, of particle sizes, that the specific information was not available “but estimates were that they were no larger than PM10” (my emphasis). That, as it seems to me, falls well short of the message which Mr Wolfe says had been conveyed. I am left with no more, as to this alleged double discount, than that there was possibly some over-conservative approach being taken but not that there necessarily had been one nor how significant the over-conservatism, had there been any, would have been.

Another alleged double discount is said to arise from the passage in the Decision Document that says, as I have already cited:-

“First, it assumes that all emissions would be constantly at the maximum permitted levels the applicant applied to be set in the permit. This is highly unlikely to be the case during the whole operation of the installation”.

As I have mentioned – see para 69 above – as I read that, the word “constantly” did not mean round the clock, day in and day out; rather it meant that emissions, whilst there were any, would constantly be at the maximum permitted level. Thus when the Decision Document says that that was highly unlikely it is not saying that round the clock operation was highly unlikely but merely that that sort of constancy of emission levels was unlikely. There is, as it seems to me, no reason to hold that Mr Sheldon could not reasonably have taken the view that that sort of constancy was unlikely. Nor, as he is not dealing with whether operation would or would not be round the clock or what ordinary working hours would be, is he embarking on a discount of that which had already been discounted. Mr Wolfe’s argument is that para 7.63 of the Decision Document indicates that LLPSs are operating constantly (that is to say, continuously) but, as I have mentioned, a fair reading of it says no such thing. At most, again, there is, as to this topic, a possible discount of what had already been discounted.

Comparison between the Decision Document and Aqmau 1 or Aqmau 2 does not suggest to me that Mr Sheldon, when writing the Decision Document, has to be regarded as having discounted as too conservative to be likely any readings or assumptions which had already been discounted on similar grounds in Aqmau 1 or Aqmau 2. I have not seen anything I can assuredly fasten on as a significant double discount emerging from the papers, a double discount so unreasonable as to undo the conclusions, which I shall come on to, that the works, if operated in line with the imposed conditions of the Permit, would comply with all UK and EU legislation and with PPC Regulations..

Thirdly, there is, in any event, nothing inherently unacceptable in double discounting; it would have been open to Mr Sheldon, as himself an expert in the field, to have thought it right, in an appropriate case, further to discount something already discounted, just as he was free also, within Wednesbury boundaries, to decline to follow the internal advice which the Aqmau reports represented. That he had done so, even if he had, would not of itself be indicative of his having acted unreasonably or of his having misunderstood the Air Quality material that had been put before him, and still less indicative of his misrepresenting its effect, deliberately, dishonestly (which has not been said) or at all.

Fourthly, in the Judicial Review context, where there has been no cross-examination, where particulate emissions moved into the forefront of the argument only at a late stage and where there is, in my view, no manifest error or misunderstanding demonstrable from the papers themselves, the Court is entitled to pay regard to Mr Sheldon’s express conclusion in the Decision Document that the assessment was thorough, detailed and appropriate, made with all the relevant facts, that the Installation could be permitted (subject to the conditions specified) and that, given those conditions and the application of BAT “… no significant pollution will be caused”. His written evidence includes that in exercising his technical expert judgment in the case he was satisfied that any breach of standard was relatively unlikely. These are not conclusions to be swept away by merely possibly vulnerable assumptions in the reasoning.

There are, as Mr Wolfe argues, at a number of points ambiguities or, as Mr Wolfe would prefer to see it, errors in Mr Sheldon’s writings; for example, did he invariably use the word “Installation” to refer to all the sources of the emissions from the cement works or occasionally to refer only to those from the main stack? Did he invariably use the word “constantly” in relation to emissions to mean emissions round the clock, day in and day out, or sometimes to mean emissions constant only during the given operational working hours of the plant (which as to the main stack, were, in any event, round the clock) or constant in the level of the emission? It is difficult to blame Mr Edwards or his advisers, given the lateness with which Aqmau 1 and Aqmau 2 were made known to them, but had the Claimant focused earlier than he did on LLPS emissions rather than tyre-burning as his principal complaint, such questions could, no doubt, have been resolved in further written evidence or correspondence. But as it is, without that and without the benefit of cross-examination, it is impossible to resolve such questions. Mr Wolfe’s complaints remain merely indications of only possible rather than of proven errors of a kind such as could have made Mr Sheldon’s conclusions unreasonable.

Indeed, such are the uncertainties of air modelling techniques and so many are the variables and assumptions that require to be considered, that the Decision Document’s conclusion that in reality the statutory environmental quality standards as to LLPS might not be exceeded cannot be said to have been a conclusion that could not reasonably and honestly have been arrived at. The most pessimistic assertion, in Aqmau 1, that there was little environmental headroom for particulate emissions, plainly suggests there was some headroom.

The same can be said of the Decision Document’s conclusion (para 1.6) that emissions from the Installation, with or without the use of tyres as fuel, would not have an unacceptable impact on human health provided that the imposed conditions were complied with and, on that basis also, as I have mentioned, that it could be ensured (para 1.7) that no significant pollution was caused. The Decision Document summary concluded (para 1.9):-

“The Agency is satisfied that the Installation, operated in line with conditions set out in the permit, employs BAT and will comply with all relevant UK and EU legislation, including the PPC Regulations.”

I am not satisfied that that conclusion last cited was one that could not have been honestly and reasonably arrived at.

I am, of course, not bound to accept, slavishly or at all, what the Agency, by Mr Sheldon, wrote in the Decision Document nor even what he, Mr Sheldon, says in his evidence but I am entitled, in what is, in my judgment, the absence of a clear refutation of the conclusions of his Decision Document, to give real weight to his conclusions in it and to his evidence. I am entitled also, if it is necessary, to extend a “margin of appreciation” to the Agency’s reasoning – see Levy –v- Environment Agency [2003]Env LR 243 at para 23 and its citation from Lord Pearce’s speech in Anisminic [1969] 2 AC 147 at 195f. Absolute perfection is not required. I do not feel able to conclude that the Agency has acted unreasonably or so as to have frustrated the purposes sought to be achieved by the legislation. I reject the double discount argument and reject also such argument as has been put before me that the Decision Document represents a misunderstanding or misrepresentation of the air dispersal material which, at the time of the decision, the Agency had before it. On this part of his case the Claimant, in my view, fails to make good his claim.

Relief

It is not the case that the existence of some material procedural defect – here the failure to disclose Aqmau 1 and Aqmau 2 before the decision was made – must necessarily lead to a quashing of the decision or of any part thereof – see Reg on the application of Capenhurst and Ors –v- Leicester City Council per Silber J, 15^th September 2004,[2004] EWHC 2124 (Admin) at paras 56-58. This is not a case where any Directive or domestic air pollution requirement is broken nor was the Agency’s decision ultra vires; relief thus remains discretionary. Mr Elvin and Mr Tromans drew attention to a number of factors, persuasive they say, of it not being right to quash in this case. I shall refer to a number of factors (although not in any particular order):-

I am reminded of the weakness of Mr Edwards’ personal position in relation to the effect on him of a grant or refusal of the relief sought. Far from being an established campaigner amongst those objecting to the operation at the cement works, he seems to have emerged only at a late stage and as a person so comprehensively without means as likely to attract maximum public funding for the objectors’ cause. There is some, but in my view little, force, in this objection; Keith J, as I have indicated, held that Mr Edwards had sufficient standing to proceed and that it was not abusive for him to do so.

There is no breach of either EC or domestic air requirements indicated in this case. If the works do emit particulates (to focus on them) to any significant and offensive degree, then those in the area will have remedies in public and private nuisance. Rugby Borough Council is already monitoring as to dust emissions under its obligations as to local air quality and has powerful sanctions able to meet any infringements. Aqmau has recommended monitoring. It is far from the case that persons in the area, if the Decision Document and Permit stand, are bereft of environmental protection. Not only has Rugby Borough Council duties as to the air but further Community-based requirements are already framed to come into effect – see the Waste Incineration Directive 2000/76/EC as to co-incineration of tyres and other waste-derived fuels with which the installation will need to comply. It is far from the case, if emissions do prove offensive or unlawful, that it will be impossible for fresh complaint to either halt operations at the works or to procure their amelioration.

The process so far has been very lengthy and, no doubt, very costly; it is through no fault of the Site Operator that consultation was, if I am right, unfair by reason of the Agency’s shortcomings on disclosure and to oblige the plant to be shut down upon its PPC authority being annulled until the Site Operator shall have mounted another application and pursued it to a conclusion, months, or, far more likely, more than a year ahead, would be massively and disproportionately prejudicial to the Site Operator, the contribution from whose works to overall pollution in the area is not significant.

The judicial review process has not been as fair as one would wish to the Site Operator. Its earlier focus, as was everyone’s, was on the burning of tyres as to which, in effect, its case succeeds. Had PM10s been brought forward earlier, whilst one cannot be sure whether the Site Operator’s evidence or practical proposals in response would have been equally successful, it is fair to say that it has not had the full opportunity to bring forward such a response that one could have expected a more timely complaint by the objectors to have generated. I am asked to refuse permission to Mr Edwards to seek judicial review on the PM10 grounds but if I do not accede to that (as is my decision) then I must attach weight to the poor opportunity that the Site Operator has had to respond to those grounds.

It is not as if a failure to make Aqmau 1 and Aqmau 2 public barred Mr Edwards or other objectors from complaining about particulates. They took expert advice of their own and were throughout entirely free to raise such issues as to LLPS and PM10s as they chose.

Even if I am right in my approach to Bushell supra, I am entitled to have in mind that the Agency could bona fide have believed that the case operated to make disclosure of Aqmau 1 and Aqmau 2 unnecessary and contrary to the Executive’s ordinary practice. In turn, I am entitled and, in the absence of any clear contrary case being put, bound to regard what I have described as a shortcoming in the Agency’s disclosure as not having been done as consciously wrong or with any dishonest or abusive intent but rather in what could have been conceived to be the ordinary (although in my view misconceived) practice in such an area.

Taken together these factors persuade me, in my discretion, not to quash the Decision Document or the related Permit nor any part of either of them.

Reference

Mr Wolfe invites me to make a reference to the European Court of Justice under Article 234 of the Treaty. Mr Elvin accepts there is no acte claire. He emphasises, though, that the facts are neither found nor agreed. However, rightly or wrongly, I have not found that a ruling by the ECJ has been necessary to enable me to give this judgment. “Necessary” is the word used in the ECJ’s own guidance on the question. On the approach I have taken there has not been, as it has seemed to me, any unclear Community law issue “critical” to my decision – see R –v- International Stock Exchange, ex parte Else [1993] 1 All ER 420 at page 426 CA. If, after consideration of this judgment by the parties, it can be seen that I ought to have recognised that an ECJ ruling was necessary to enable me duly to decide the issues put in front of me then, of course, it will be open to the person seeking the reference to ask the Court of Appeal itself to make it. Leaving the issue of reference to that stage has the advantage that if any questions are seen to be necessary to be raised before the ECJ, they are likely to be better focused then than they would have been at first instance. I do not accede to Mr Wolfe’s invitation.

Mr Wolfe suggested that I should make a Tomlin order including a stay of these proceedings. But a Tomlin order contemplates the parties having agreed terms in a Schedule. There has been no such agreement.

Conclusion

As for any grant of permission to Mr Edwards to seek a judicial review in the way that he has, it has already been decided by Keith J, as I have mentioned, that Mr Edwards has due standing and that it was not abusive for him to act as he did. That Mr Edwards failed to bring out PM10s earlier is in part at least a consequence of what I have held to have been a failure by the Agency and I am not disposed to deny permission to Mr Edwards on the ground of delay, especially since I can put delay in bringing forward particulates as the chief complaint as one factor amongst several others in the exercise of my discretion as to relief. The arguments Mr Wolfe has addressed on Mr Edwards’ behalf are different to those foreshadowed when the matter was before Keith J but have raised serious issues and I grant Mr Edwards the permission he needs to do as he has done.

As for other relief, for the reasons I have given, I make no reference to the ECJ, I do not quash all or any part of the Decision Document or the Permit of 12^th August 2003 and I do not grant any other substantive relief. I shall need to be addressed by counsel as to the appropriate form of order that I should make.