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

The House of Lords dismissed the appeal seeking to quash a permit granted under the Pollution Prevention and Control (England and Wales) Regulations 2000 (the PPC Regulations). Key legal principles were: (i) the IPPC Directive (96/61/EC) requires public access only for applications for new installations or substantial changes, and the change alleged (partial substitution of fuel with tyres) did not qualify as such; (ii) under the PPC Regulations the regulator may obtain and rely on supplementary information and judge the adequacy of an application (see Schedule 4 para 1(g) and regulation 29); and (iii) the court should not extend a common-law duty of disclosure beyond the publicity regime established by statute where Parliament and EU law have defined public participation. The House further held that any procedural unfairness found in non-disclosure of internal Agency modelling reports did not justify quashing the permit because subsequent monitoring showed no breach of the PM10 environmental quality standard.

Background and parties: The appellants (local residents) sought judicial review of a permit issued by the Environment Agency to Rugby Ltd (later Cemex UK Cement Ltd) for operation of a cement works at Rugby. The dispute concentrated on the company’s proposal to burn shredded tyres as a partial fuel substitute and on predicted particulate (PM10) impacts.

Nature of the claim / relief sought: The claim sought quashing of the permit on grounds that the Agency failed to disclose material information during consultation and/or failed to apply best available techniques (BAT) and that the decision engaged the EIA Directive (85/337/EEC).

Procedural history: The matter proceeded by judicial review in the domestic courts and was appealed to the Court of Appeal ([2006] EWCA Civ 877) and thence to the House of Lords.

Issues framed:

• Whether the IPPC Directive or the PPC Regulations imposed a duty to publish the Agency's internal AQMAU reports and other informal information obtained during consideration of the application;
• Whether the PPC application was fatally deficient for not modelling low level point sources (LLPS) of PM10;
• Whether the proposed use of tyres required a formal environmental impact assessment under the EIA Directive (Annex I paragraph 10 or Annex II paragraph 13).

Court’s reasoning: The House held (i) the IPPC Directive’s public-access rules apply only to new installations or substantial changes and, as found below, the tyre proposal was not a substantial change triggering the directive’s publicity requirements; (ii) the PPC Regulations go further than the Directive and require a public register of particulars, but they do not preclude the regulator obtaining information informally; the regulator remains primarily responsible for judging the adequacy of the applicant’s information (Schedule 4 para 1(g), regulation 29); (iii) the Agency was entitled to treat the application as valid despite the company’s not modelling LLPS emissions in its stack-modelling exercise; (iv) even if there had been a common-law duty to disclose internal AQMAU reports, events (monitoring and subsequent reports) had overtaken the relevance of those reports and it was a proper exercise of the court’s discretion not to quash the permit; (v) alternatively, if the EIA Directive applied, the PPC application provided the information the Directive requires.

Appeal dismissed. The House held that (i) the IPPC Directive did not require disclosure in relation to an existing installation which was not a 'substantial change'; (ii) the PPC Regulations allowed the regulator to obtain supplementary information and to judge the sufficiency of the application and did not require that all informally obtained material be published; (iii) even accepting a procedural unfairness finding about non-disclosure of internal Agency reports, the court exercised its discretion not to quash the permit because monitoring and subsequent reports showed no breach of the PM10 environmental quality standard.

Appeal to the House of Lords from the Court of Appeal [2006] EWCA Civ 877; earlier proceedings by way of judicial review in the High Court (Lindsay J).