Edwards & Anor v The Environment Agency & Ors

A statutory consultation must be conducted fairly. A decision-maker generally need not disclose its internal advice or thought processes. Fairness may nevertheless require disclosure where new, specialised internal material is potentially significant to the decision and consultees need it to make an intelligent response.

A domestic procedural breach does not automatically invalidate the resulting decision. The court retains a discretion to refuse relief in the interests of justice. Relevant considerations include prejudice, the realistic prospect of a different decision, the parties’ conduct, good administration and the practical value of relief.

Using waste as an ancillary fuel in a manufacturing process does not by itself create a separate waste-disposal project for environmental impact assessment purposes. The nature, extent, purpose and environmental effects of the use must be assessed in context.

The Environment Agency granted a conditional permit under the Pollution Prevention and Control (England and Wales) Regulations 2000 for the continued operation of a cement plant and the trial burning of waste tyres as a partial substitute fuel. During its assessment, the Agency obtained specialist internal reports indicating a possible risk from low-level dust emissions. It did not disclose those reports during the public consultation.

Residents sought judicial review. Lindsay J held that the Agency had breached its common law duty of fair consultation but had breached neither the environmental impact assessment regime nor the pollution prevention and control regime. He exercised his discretion to refuse relief.

The residents appealed on the European Union and relief issues. The Agency challenged the finding of common law unfairness by a Respondents’ Notice. The central questions were whether the permit process engaged the environmental impact assessment regime, whether the permit application complied with the pollution control regime, whether non-disclosure was unfair and whether relief should have been granted.

1. Appeal dismissed; Respondents’ Notice dismissed. The permit did not concern a “project” listed in the relevant annexes to the Environmental Impact Assessment Directive. Burning waste tyres as a partial substitute fuel remained ancillary to the manufacture of cement. It did not convert the cement plant into an installation for waste disposal. Nor was it a change to the cement-manufacturing project which might have significant adverse environmental effects. No reference to the European Court of Justice was required.

2. The United Kingdom’s planning system adequately implemented the Directive for the matters in issue. Its concepts of operational development and material change of use provided an appropriate mechanism for determining when development consent and an environmental impact assessment were required. If an assessment had been required, the Agency was entitled to find substantial compliance. The adequacy of environmental information was primarily a matter for the competent decision-maker, reviewable on Wednesbury grounds.

3. The Agency was entitled to treat the permit application as complying with the Pollution Prevention and Control (England and Wales) Regulations 2000. The adequacy of information about foreseeable emissions and significant environmental effects was pre-eminently for the Agency. Its later acquisition of further information for specialist modelling did not establish that the original application was legally inadequate.

4. The Agency nevertheless breached its common law duty of fair consultation. A public decision-maker ordinarily need not disclose internal advice or its developing thought processes. Fairness may require disclosure where the decision-maker discovers new internal material of potential significance. The specialist reports broke new ground, contained the only full information about low-level dust emissions and their possible environmental impact, and concerned matters which consultees could not reasonably be expected to investigate unaided. Their non-disclosure prevented an adequately informed response.

5. The procedural breach did not require the permit to be quashed. Relief for a domestic-law defect remained discretionary and depended on the interests of justice. The prospect of a different decision was remote, the plant was not making a significant contribution to local pollution, and the continuing regulatory regime enabled monitoring, review, variation and, if necessary, revocation. Consultation on outdated predictions would have served no practical purpose. Declaratory and mandatory alternatives were also refused.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 877, dismissed the residents’ appeal against the findings of no breach of the European Union regimes and against the discretionary refusal of relief. It also dismissed the Agency’s Respondents’ Notice challenging the finding of common law unfairness.
• High Court, Administrative Court: Lindsay J held that withholding the specialist reports breached the common law duty of fair consultation, but found no breach of the environmental impact assessment or pollution prevention and control regimes and refused relief in the exercise of his discretion. No citation is stated in the judgment.