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

An environmental regulator’s consultation must be fair and sufficiently informed. Where internally generated expert material is highly relevant, specialised, potentially influential and not otherwise available, fairness may require its disclosure to consultees. The fact that the material was generated internally, or after consultation had formally ended, does not create an absolute exemption.

A mere continuation of an existing installation with a change of fuel is not necessarily a new project or a material change requiring environmental impact assessment. Burning waste as a useful fuel may constitute recovery rather than disposal. Procedural unfairness does not automatically require a decision to be quashed; relief remains discretionary.

The claimant sought judicial review of the Environment Agency’s decision of 12 August 2003 granting Rugby Ltd a pollution prevention and control permit for a cement works, including a limited trial of chipped tyres as fuel.

The challenge ultimately focused on alleged failures to assess and disclose information concerning particulate emissions from low-level pollution sources, alleged misunderstanding of air-dispersion material, failure to require an environmental impact assessment, and inadequate information in the permit application. Permission had previously been granted on standing and abuse issues, and the Secretary of State for Environment, Food and Rural Affairs had been joined.

The central issues were whether the Agency had acted unlawfully in its assessment and consultation process and, if so, whether the permit and decision document should be quashed.

1. Environmental impact assessment. The continued operation of an existing cement-manufacturing installation, with a change in fuel, was not a new “project” under Article 1 of the EIA Directive. Burning chipped tyres as fuel was not, on the facts, a project for waste disposal. The relevant distinction was between disposal and recovery: the principal objective of using the waste as fuel was to provide useful energy in place of primary fuel. The proposed fuel change was also not a change likely to have significant adverse environmental effects within Annex II, paragraph 13.
2. Permit application. The application was not invalid merely because it did not contain every item of information in Schedule 4, Part 1 of the PPC Regulations in complete form. The Agency was entitled to decide whether the total information was adequate and could require further information. The application had been made bona fide and further information had in fact been requested and supplied.
3. Fair consultation. Fairness required consultees to receive enough information to make an intelligent response. The two Aqmau reports were highly relevant expert assessments of particulate emissions, addressed specialised issues which objectors might not otherwise investigate, and disclosed the principal vulnerability of the application. The Agency should have disclosed Aqmau 2 and Aqmau 1 unless it intended to disclose a final report. Bushell did not establish an absolute rule protecting all internal expert advice from disclosure. Its context was materially different because the relevant assessment there concerned governmental policy and the underlying material had been published.
4. Merits and relief. The claimant failed to establish that the Agency misunderstood the air-quality material or acted irrationally. Air modelling involved substantial variables and uncertainties, and the Agency’s conclusions were reasonably open to it. Although the consultation defect was unlawful, relief was discretionary. The absence of a demonstrated breach of air-quality requirements, available monitoring and enforcement mechanisms, the prejudice to the operator from restarting the process, the late focus on particulate emissions, and the Agency’s good-faith error meant that the permit and decision document should not be quashed.
5. The court refused an ECJ reference because no ruling was necessary to determine an unclear Community-law issue critical to the decision. Permission for the judicial review was granted, but no substantive relief was ordered.

1. High Court (Administrative Court): permission was initially refused by Sullivan J on 30 December 2003. On renewal, Keith J held on 2 April 2004 that the claimant had standing and that the claim was not abusive, adjourned the permission application to the substantive hearing, and directed that the Secretary of State for Environment, Food and Rural Affairs be joined.
2. High Court (Administrative Court): the present court granted permission, refused an ECJ reference, declined to quash the permit or decision document, and granted no other substantive relief.