Blackland Park Exploration Ltd v Environment Agency

A landfill includes an identifiable underground geological formation into which waste is brought for disposal and remains after injection. The definition extends beyond a conventional surface tip. It is immaterial that liquid waste enters through a borehole, mixes with groundwater, or lies within water-bearing strata.

The landfill and groundwater-pollution regimes may overlap. A waste management licence cannot displace an absolute prohibition on accepting liquid waste at a landfill. Technical landfill requirements govern whether a permit may be granted. They do not narrow the statutory definition of landfill.

The appellant operated an on-shore oilfield at Whisby and accepted hazardous liquid industrial waste from third parties for injection through a borehole into deep oil-bearing sandstone and limestone strata. The waste remained within an underground reservoir beneath an impermeable layer.

Blackburne J in the Chancery Division declared that the site and receiving strata constituted a landfill, insofar as imported liquid wastes were discharged there. The appellant appealed. The Court of Appeal also considered whether declaratory proceedings were appropriate before any criminal prosecution. The central issue was whether the injection operation involved the deposit of waste into land for the purposes of the Landfill (England and Wales) Regulations 2002.

Decision

1. Appeal dismissed. Scott Baker LJ, with whom Mummery and Simon Brown LJJ agreed, held that the Whisby site was a landfill when imported liquid waste was injected into the strata. Regulation 9(1) therefore prohibited the appellant from accepting that waste.
2. The domestic definition had to be read, so far as possible, in light of the wording and purpose of the Landfill Directive, consistently with Marleasing S A v La Comercial Internationale de Alimentation S A [1990] ECR I-4135 and Litster and Others v Forth Dry Dock Engineering Co Ltd [1990] 1 AC 546. The Directive was concerned broadly with the removal and disposal of waste, including disposal underground.
3. The waste was transmitted to, and left within, a large identifiable underground area. That was a deposit into land. The presence of substantial quantities of water, and mixing of the waste with that water, did not convert the operation into a discharge outside the landfill regime. Nor did deposit require placement in a controlled medium.
4. The groundwater and landfill regimes were not mutually exclusive. The fact that groundwater legislation could regulate discharges, or that the activity had previously been authorised by a waste management licence, did not prevent the later absolute prohibition on liquid waste at landfill from applying.
5. Technical requirements in Schedule 2 could not determine whether a site fell within the definition of landfill. They operated after classification and were sufficiently flexible to apply to differing sites and hazards. Failure to meet them could prevent a permit, rather than remove the site from the regime.
6. The declaratory proceedings were properly entertained. Applying R (Rushbridger) v Attorney General [2003] 3 WLR 232, the agreed facts, the parties’ genuine interest in a discrete legal issue, and the absence of criminal proceedings made this an exceptional case in which clarification before conduct risking prosecution was in the interests of justice.

• Court of Appeal (Civil Division): Appeal dismissed. The declaration made by Blackburne J was upheld.
• High Court of Justice, Chancery Division: Blackburne J declared that the Whisby site and receiving strata were a landfill under the Landfill (England and Wales) Regulations 2002 insofar as imported liquid waste was discharged into them.