R (on the application of Edwards and another (Appellant)) v Environment Agency and others (Respondents)

The adequacy of environmental information in a permit application is primarily for the regulator to assess. The statutory minimum does not invariably require complete information or computer modelling. Equivalent information and public consultation may satisfy an environmental impact assessment requirement even without a document bearing that name.

A procedural defect does not invariably require the quashing of an administrative decision. Judicial review remedies remain discretionary, although relief should ordinarily follow a material flaw. Quashing may be refused where subsequent evidence has overtaken the undisclosed information, renewed consultation would serve no practical purpose, and repeating the process would waste substantial resources.

The Environment Agency granted a permit for an existing cement works. The application included a controversial proposal to substitute shredded tyres for some conventional fuel. Internal modelling reports subsequently suggested that particulate emissions from low-level sources might contribute to an exceedance of the relevant environmental quality standard, but those reports were not disclosed during consultation.

The appellants sought judicial review, alleging inadequate public consultation and non-compliance with domestic pollution-control legislation and European environmental assessment requirements. Lindsay J and the Court of Appeal, whose decision was reported at [2006] EWCA Civ 877, accepted that non-disclosure constituted common-law procedural unfairness but declined to quash the permit.

The central issues were whether the application and consultation complied with the applicable legislative schemes and whether the courts could refuse relief despite the assumed consultation defect.

1. Disposition. The House unanimously dismissed the appeal.

2. The pollution-control application and public register. Per Lord Hoffmann, with Lord Hope and Lord Walker agreeing, the regulator was primarily responsible for judging whether an application contained adequate environmental information. The Pollution Prevention and Control (England and Wales) Regulations 2000 did not require computer modelling in every case or information attaining an unrealistic standard of completeness. The Agency could reasonably regard the application as valid because it identified the particulate-emission sources and enabled their environmental effects to be assessed.

   The statutory register covered the application and information supplied in response to a formal notice. It did not cover the Agency's internal modelling reports. Nor could the Regulations be read as prohibiting informal requests for supplementary information or as requiring all informally obtained information to be published. Lord Mance, with Lord Brown inclining to his view, considered that significant information obtained informally from the applicant should be published. Otherwise the statutory scheme would contain an irrational lacuna. That difference did not affect the disposition.

3. European requirements. Per Lord Hoffmann, with the other Law Lords agreeing on the result, the public-participation provisions of the integrated pollution-control directive applied only to new installations or substantial changes. The plant was an existing installation, and the proposed fuel change had been found not to produce significant negative environmental effects.

   Lord Hoffmann, Lord Hope and Lord Walker considered that the change of fuel most naturally fell within paragraph 13 of Annex II to Council Directive 85/337/EEC, rather than paragraph 10 of Annex I. They did not regard that interpretation as acte clair. Lord Mance, with Lord Brown inclining to his view, considered Annex I the more probable classification. A reference was unnecessary because all five Law Lords agreed that the application contained sufficient information about tyre burning to satisfy the Directive if it applied.

4. Common-law fairness and relief. The Agency did not challenge the lower courts' finding of common-law unfairness. Lord Hoffmann therefore proceeded on that basis, although he considered that a detailed statutory consultation scheme should not ordinarily be enlarged by a common-law duty to disclose internal working documents.

   Per Lord Hoffmann, with all members agreeing in the disposition, judicial review relief remained discretionary. Later monitoring established that the particulate-matter standard was not being exceeded. The undisclosed predictions had therefore been overtaken by observed data. Quashing the permit to enable consultation on obsolete material would be pointless and would waste the resources of the company and the Agency. The permit was accordingly left in force.

1. House of Lords: In R (on the application of Edwards and another) v Environment Agency and others [2008] UKHL 22, the House unanimously dismissed the appeal and upheld the refusal to quash the permit.
2. Court of Appeal: In [2006] EWCA Civ 877, the court upheld the conclusion that non-disclosure was procedurally unfair but that quashing should be refused in the exercise of discretion.
3. High Court: Lindsay J found a breach of the common-law duty of fairness through non-disclosure of the modelling reports but declined to quash the permit. The citation is not stated in the judgment.