Rockware Glass Ltd., R (on the application of) v Quinn Glass Ltd & Anor

Under the IPPC Directive, compliance with ambient air-quality standards does not exhaust the regulator’s duties. Environmental quality standards are minimum requirements. A regulator must apply plant-specific controls and assess best available techniques, including alternative size, configuration, design and process, rather than treating the applicant’s proposal as fixed. Sector guidance supplies a baseline for BAT; departure requires reasons, particularly where the recommended emission level is achievable with available techniques. A delegation for matters involving no real discretion does not authorise a permit decision requiring evaluative judgment. An unlawful permit must be quashed, but its effect may be deferred briefly where environmental protection is substantially secured and a fresh permit is being determined.

Quinn Glass developed a major glass-manufacturing installation requiring an IPPC permit from Chester City Council. Rockware challenged the permit’s limits for oxides of nitrogen. The Administrative Court, in [2005] EWHC 2250 Admin, quashed the permit, made declarations concerning BAT and alternative installation configurations, suspended the quashing order pending appeal, and granted limited permission to appeal.

Quinn challenged the declarations and sought wider permission. The central issues were whether the regulator had to consider alternative designs and processes, whether compliance with ambient environmental quality standards was sufficient, whether the decision had been lawfully delegated, and whether the quashing order should take immediate effect.

1. Disposition. Buxton LJ delivered the judgment, with Richards LJ and Sir Christopher Staughton agreeing. The appeal was dismissed, the applications for permission to appeal were refused, and the relief granted by the Administrative Court was upheld.
2. Ambient standards. The IPPC Directive establishes plant-specific pollution controls directed to prevention or reduction at source. Ambient environmental quality standards are minimum requirements, not a complete measure of compliance. Meeting the local EQS therefore did not relieve the regulator from assessing BAT and imposing appropriate emission limits. Article 10 dealt with the exceptional case in which an EQS required conditions stricter than those achievable through BAT.
3. BAT and alternative configurations. BAT was not confined to the installation proposed by the applicant. The definition of techniques included the way an installation was designed, built, operated and decommissioned. The regulator had to take the installation’s technical characteristics into account, but was not bound by them. It could therefore consider an alternative size, configuration, design or process, including the oxyfuel process where it was proven technology reasonably accessible to the operator.
4. Guidance and delegation. SG2 provided a relevant baseline of 500 mg per cubic metre for nitrogen oxides. Although guidance, departure from it required reasons. The evidence showed that the level was achievable by secondary abatement, and no rational reason for departure was shown. Rule 29 did not authorise the chief executive to decide a permit application involving discretion and evaluative assessment. An unauthorised decision was unlawful even if the same result could have been reached lawfully. The court left unresolved whether the judge had given excessive weight to global-warming considerations.
5. Relief. The substantive errors made quashing the permit inevitable. However, in the unusual circumstances, the effect of the quashing order could be deferred for a short period. Immediate operation without a permit would expose Quinn to criminal liability, while closure would have serious consequences for its workforce and third parties. Secondary abatement was being installed, and a fresh permit application was under active consideration. The limited deferral of relief was compatible with Community law and did not amount to refusing to quash the permit or permitting indefinite operation.
6. The stay was extended until Chester decided the fresh permit application, conditional on undertakings by Chester and Quinn to proceed with reasonable despatch. All parties had liberty to apply.

1. Court of Appeal (Civil Division) — In [2006] EWCA Civ 992, the appeal was dismissed, permission applications were refused, and the Administrative Court’s relief was upheld. The stay was extended until the fresh permit application was determined, subject to undertakings.
2. Administrative Court — In [2005] EWHC 2250 Admin, HHJ Gilbart QC quashed Chester City Council’s IPPC permit, made declarations concerning BAT and alternative configurations, suspended the quashing order pending appeal, and granted limited permission to appeal.