Lewis, R (on the application of) v Environmental Agency & Anor

The Landfill Directive does not prohibit sub-water-table landfills. The requirement to prevent groundwater entering landfilled waste means preventing it to the extent reasonably achievable through the prescribed engineering measures, rather than making entry physically impossible. The Groundwater Directive is directed to preventing list I substances entering groundwater. Hydraulic containment, including pumping and a clay liner, may be used as technical precautions to achieve that result. A landfill permit may require the precise leachate-treatment arrangements to be identified after operations begin, provided the regulator is satisfied that appropriate measures can and will be taken. Adequate financial provision may be calculated by detailed long-term estimates supplemented by a contingency fund for periods where precise forecasting is impracticable.

The claimant sought judicial review of the Environmental Agency’s grant of a permit under regulation 10 of the Pollution Prevention and Control (England and Wales) Regulations 2000 for a proposed hydraulic-containment landfill operated by Onyx. The landfill would occupy a former opencast mining void, part of which lay below the surrounding groundwater level.

Four grounds alleged breaches of the Landfill Directive and Groundwater Directive, inadequate financial provision, and failure to specify leachate-treatment measures before granting the permit. Permission had initially been granted only on grounds (1) and (3), but the court granted permission on grounds (2) and (4) after hearing the renewed application. The central questions concerned the meaning of preventing groundwater entry, the permissibility of technical precautions, the timing of leachate-treatment decisions, and the adequacy of financial security.

1. Disposition. Permission to apply for judicial review was granted on grounds (2) and (4), but the substantive application was dismissed on all four grounds.
2. Landfill Directive. Annex I paragraph 2 had to be read with the Directive as a whole, including its objective of preventing pollution from leachate. “Prevent” did not mean making groundwater entry physically impossible. It required groundwater to be stopped to the extent possible through engineering techniques of the kind required by Annex I paragraph 3. The clay liner and hydraulic-containment system therefore satisfied the requirement, and the Directive did not impose an absolute prohibition on sub-water-table landfills.
3. Groundwater Directive. The Directive was concerned with the discharge of list I substances into groundwater. Water percolating through the engineered clay liner into the landfill was not thereby a direct discharge into groundwater. The clay liner was distinct from the natural ground or subsoil and served to make outward pollutant migration more difficult. The decision in R v Vale of Glamorgan BC and Associated British Ports ex p James, [1996] Env LR 102, and the Court of Appeal’s refusal of leave, (1997) Env LR 195, supported that conclusion.
4. Technical precautions. Article 4 did not prevent the use of pumping or other technical precautions to prevent direct discharge. The operative requirement was that list I substances be prevented from entering groundwater. Commission v Germany, [1991] ECR I-00825, concerned a different argument and did not require a different result.
5. Leachate treatment and financial security. The Agency could defer identification of the precise treatment option until actual leachate data became available, provided it was satisfied before granting the permit that appropriate collection and treatment measures could and would be taken. Its calculation of financial security, based on detailed assessment for 60 years and an indexed contingency sum thereafter, fell within its discretion and constituted adequate provision.