Yates-Taylor v Environment Agency & Ors

An environmental permit will not necessarily be quashed for an error of law where the decision-maker in fact considered the matters required by the relevant legal provision. Public consultation opinions are not necessarily “information” obtained under the environmental impact assessment provisions. An emission limit for carbon dioxide may be addressed through equivalent technical measures, including control of the quantity of waste processed, where that complies with the governing provision. A challenge to the general validity of public-participation regulations will not ordinarily invalidate an individual permit where effective participation occurred.

The claimant sought judicial review of the Environment Agency’s decision to grant an environmental permit for a proposed waste incinerator. Four grounds alleged errors concerning persistent organic pollutants, consultation material, carbon dioxide emissions, and the transposition of public-participation requirements. Permission had initially been refused on the papers, but the application was renewed before the Administrative Court. The court also determined the Environment Agency’s application for the costs of filing its acknowledgment of service.

1. Ground 1. The Agency had wrongly understood Article 6(3) of the EC POPS Regulation to concern intentionally produced persistent organic pollutants. That error did not require the permit to be quashed because the decision had in substance considered the relevant alternative designs, operations and best available techniques required by Article 6(3). The challenge was therefore unarguable.
2. Ground 2. Article 9.2 of the IPPC Directive required relevant information obtained or conclusions reached under the environmental impact assessment provisions to be taken into account. Opinions expressed by consultees and members of the public were not “information” within Articles 5, 6 or 7. It was therefore unnecessary to decide whether “or” in Article 9.2 meant “and”.
3. Ground 3. Although carbon dioxide was a polluting substance likely to be emitted in significant quantities, Article 9.3 did not require a separate numerical emission limit where equivalent technical measures adequately controlled the emission. Controlling the type and total quantity of waste accepted by the plant was sufficient in the circumstances.
4. Ground 4. The public-participation provisions had been effectively implemented. The regulations were not invalid merely because they delegated detailed arrangements to the regulator and required the regulator to meet the Directive’s requirements. In any event, alleged vagueness in the regulations did not invalidate this permit where extensive and effective public participation had occurred.
5. The judicial-review application was dismissed. The Environment Agency was entitled in principle to recover the costs of its acknowledgment of service under Mount Cook, particularly after the claimant’s legal aid had been revoked. Having regard to the unusual issues but also to the excessive amount claimed, the costs were reduced to £2,500. No costs were awarded for attendance at the renewal hearing.

Permission for judicial review was initially refused on the papers by Sir Michael Harrison. The renewed application was transferred to the Leeds Administrative Court, which dismissed the claim.