Environment Agency v Anti-Waste Ltd, R (On the application of)

The statutory scheme does not require a landfill permit application to encompass every closed cell that may be affected by a proposed landfill. A proposed landfill may constitute a stationary technical unit where the scheduled activity can be carried out independently as a functionally self-contained operation. The possible environmental impact on adjoining or underlying cells is relevant to whether a permit should be granted, but does not prevent the application from being considered. The Groundwater Regulations 1998 do not prohibit a permit merely because it leaves undisturbed an unrelated, pre-existing discharge from a closed cell. Both declarations were quashed.

Anti-Waste Ltd sought to challenge the Environment Agency’s refusal of landfill permits for two Norfolk sites. It agreed to pursue site-specific statutory appeals to the Secretary of State, while retaining proceedings seeking declarations on two legal questions.

Collins J granted declarations under the Landfill (England and Wales) Regulations 2002: first, that a separate landfill could in principle partially overlie a closed waste cell; and secondly, that a permit could not be granted where the installation included a closed cell producing specified groundwater discharges. The Environment Agency appealed on the installation issue. Anti-Waste Ltd appealed on the groundwater issue.

1. Installation issue. The Environment Agency’s appeal failed in substance, but the first declaration was quashed. The definition of an installation in regulation 2 of the Pollution Prevention and Control (England and Wales) Regulations 2000 requires identification of a stationary technical unit. For landfill, this may be a defined space in which the scheduled activity can be carried out independently as a functionally self-contained operation.
2. The technical and environmental consequences of piggybacking, including compression, settlement, monitoring difficulties and possible interference with after-care, are relevant to the grant or refusal of a permit. They do not define the unit or impose a threshold requirement that the application cannot be considered until the absence of such impact has been established. An integrated approach to pollution control does not require every potentially affected closed cell to be included in the application.
3. An existing closed cell is not a directly associated activity within regulation 2 merely because the proposed landfill may affect it. Activity on the closed cell is not activity serving the proposed technical unit and does not have the requisite technical connection.
4. Groundwater issue. Anti-Waste Ltd’s appeal succeeded to the extent that the second declaration was quashed. Regulation 4 of the Groundwater Regulations 1998 concerns a direct or indirect discharge resulting from the activity to be authorised and its consequences. A permit that neither causes nor exacerbates an existing discharge from a closed cell does not permit that discharge merely by leaving it unended.
5. The court considered the declarations too general and inappropriate in advance of the statutory appeal dealing with technical facts. Both declarations were quashed. No substitute declaration was made for the second declaration.

• Court of Appeal (Civil Division) — [2007] EWCA Civ 1377: the Environment Agency’s appeal failed in substance on the installation issue but the first declaration was quashed. Anti-Waste Ltd’s appeal on the groundwater issue succeeded to the extent that the second declaration was quashed.
• Administrative Court, Queen’s Bench Division — Collins J, [2007] EWHC 717 (Admin): granted declarations concerning piggybacking landfills and existing groundwater discharges.