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

Piggybacking, whereby a new landfill cell partially overlies a closed cell, is lawful in principle. A landfill permit need not cover the whole physical site or require a vertical separation from existing waste. The proposed landfill may constitute a separate stationary technical unit, or a permit may attach to the new part of a single installation.

Permission depends on demonstrating that the operation creates no serious risk of pollution, including pollution caused by compression of the old cell or interference with its after-care. The regulator may consider future pollution, technical safeguards, after-care arrangements and difficulties in identifying responsibility. Existing groundwater pollution may prevent authorisation where the permitted operation would allow its continuation.

The claimant sought judicial review of refusals by the Environment Agency to grant landfill permits for two Norfolk sites. The proposed operations would place new waste above parts of closed cells, using an engineered liner to prevent interaction with the old waste. The claimant accepted that factual and technical objections could be pursued through the statutory appeal process, but challenged the Agency’s legal position.

Permission was granted to determine two questions: whether a permit could lawfully authorise a landfill partially overlying a closed cell, and whether existing harmful groundwater discharges required refusal of a permit covering the proposed landfill and the closed cell.

1. The installation issue. The court held that piggybacking is lawful in principle. The word “site” in the Landfill Regulations 2002 bears its ordinary meaning and does not necessarily mean an area of ground delineated by a line on a plan. The definition can include an underground landfill. The reasoning in Blackland Park Exploration Ltd v Environment Agency [2003] EWCA Civ 1795 supported that conclusion.
2. A new deposit in a defined area can constitute a separate stationary technical unit even though it overlies an existing closed cell. Alternatively, if the new and old areas form one installation, a permit may attach to the new part. The law does not require a vertical divide, a bund or a void to establish complete independence.
3. A permit cannot be granted where the operation creates a serious risk of pollution. Relevant risks include compression of the old cell, failure of engineered barriers during the required after-care period, interference with measures controlling pollution from the old cell, and practical uncertainty over responsibility. These matters are principally for assessment on the merits and through the statutory appeal process.
4. The court interpreted the domestic provisions consistently with the relevant Directives. Under Groundwater Regulations 1998, an authorisation could not be granted if it would permit relevant List I discharges or fail to impose the necessary precautions against List II pollution. The continuing discharge of existing pollution may be treated as future pollution permitted by the authorisation.
5. The groundwater issue was not strictly necessary because the permit need not cover the whole site. It was nevertheless decided as an alternative, because it had been fully argued. If an installation included the existing closed cell, relevant existing discharges would prevent authorisation.

The court held piggybacking lawful in principle and reserved submissions on the appropriate relief.