Baker, R (on the application of) v The Environment Agency

In a judicial review challenge alleging failure to exercise a statutory power, the court asks whether the public authority’s decision was irrational. An authority may rationally decline to investigate a risk where the available risk assessments adequately address the concern. Where environmental permitting depends on compliance with planning requirements, it is also rational for the Environment Agency to await the planning authority’s determination before deciding whether to revoke or cancel a permit. The permission threshold requires an arguable case; evidence of concern alone does not establish irrationality.

The claimant, a 17-year-old resident living near an organic waste and composting site, sought permission to challenge the Environment Agency’s conduct concerning bioaerosol emissions and the renewal of the site’s waste permit.

She alleged that the Agency acted irrationally by failing to arrange atmospheric testing and by renewing the permit before the planning status of the operation had been confirmed. The Agency relied on two risk assessments and stated that the permit would be cancelled if the local planning authority identified a breach of planning control.

The central issues were whether either decision was arguably irrational and whether the Agency was entitled to await the planning authority’s consideration.

1. Permission refused. The claimant had not shown an arguable case that the Environment Agency acted irrationally.
2. The Agency accepted that it had power, probably under section 89 of the Environment Act, to undertake investigations into bioaerosol emissions. The court nevertheless held that its decision not to undertake testing was rational. Two risk assessments, conducted in 2006 and 2007 in accordance with practices generally adopted by the Agency, gave the Agency a proper basis for concluding that the concerns had been adequately addressed.
3. Evidence of odour problems did not establish a direct equivalence between odour and harmful bioaerosol levels. The material before the court did not directly suggest that residents were exposed to bioaerosol levels creating a health risk.
4. The relationship between environmental permitting and planning control was governed by regulation 9 of the Environmental Permitting Regulations 2007. Regulation 9(3)(b) required waste to be spread in accordance with requirements under the Town and Country Planning Act before the operation fell within the relevant permitting category.
5. It was rational and pragmatic for the Agency to await the local planning authority’s consideration of whether planning control had been breached before deciding whether to revoke the permit. The authority had initiated contravention procedures but had not yet determined that a breach existed.
6. The application for permission to apply for judicial review was refused. The claimant’s costs were subject to detailed assessment under the relevant regulations.

The judgment records that His Honour Judge Birtles, sitting as a High Court Judge, gave directions on 5 September 2008 and adjourned the permission application for oral hearing. Mr Justice Burnett then refused permission to apply for judicial review. Any appeal was to be made directly to the Court of Appeal.