European Metal Recycling Ltd, R (on the application of) v The Environment Agency

A suspension notice under Environmental Permitting (England & Wales) Regulations 2010, regulation 37(4)(a)(ii), must explicitly identify the steps required to remove the risk of serious pollution. It may specify achievable outcomes or criteria instead of particular works, but it cannot merely require the operator to design and implement measures that eliminate the risk. The regulator’s assessment of whether operation involves a risk of serious pollution is a judgment reviewable only on irrationality grounds. A statutory appeal will not ordinarily be an equally effective and convenient alternative remedy where the notice has immediate effect, suspends substantial operations and raises an important question of law. A notice that fails to identify the required steps or outcomes is invalid.

The claimant operated a metal waste recycling site under an environmental permit. Following extensive complaints about noise, the Environment Agency served a suspension notice under regulation 37 of the Environmental Permitting (England & Wales) Regulations 2010. The notice suspended all movement of waste to, within and from the site and required the claimant to design and implement measures eliminating the risk of serious pollution from noise.

The claimant sought judicial review and a quashing order. The principal issues were whether the Agency had rationally concluded that there was a risk of serious pollution, whether the notice complied with the statutory requirement to specify the steps required to remove that risk, and whether the statutory appeal provided an adequate alternative remedy.

1. Claim allowed; suspension notice quashed.
2. The Environment Agency’s conclusion that operation of the site involved a risk of serious pollution was a matter for its judgment and was challengeable only on irrationality grounds. The evidence, considered in the round, clearly entitled the Agency to reach that conclusion. Earlier inspections, the passage of time and the absence of earlier complaints did not prevent reliance on the later evidence.
3. Regulation 37(4)(a)(ii) imposed a mandatory requirement that the suspension notice explicitly state the steps required to remove the identified risk. A requirement to design and implement measures eliminating the risk merely restated the statutory objective. It did not identify the steps required to achieve it.
4. Compliance could be achieved by specifying particular works or by identifying an outcome or outcomes, or criteria, which the operator had to achieve by means of its choice. The notice did neither and therefore failed to comply with regulation 37.
5. The reasoning in R v Falmouth & Truro Port Authority ex p South West Water Ltd [2001] QB 445 supported the distinction between a notice requiring abatement and one requiring specified works or steps. R v SSE ex p Premiere Environment Ltd [2000] Env LR 724 was distinguishable because the predecessor statutory language imposed no equivalent requirement to specify steps. Sterling Homes v Birmingham City Council [1996] Env LR 121 supported the requirement for a notice requiring works or steps to identify them.
6. Although not necessary to the decision, the Agency should also have considered whether a partial suspension would address the risk. Its guidance stated that the whole permit should not be suspended automatically and that activity should be suspended only to the extent necessary.
7. The statutory appeal was not an equally effective or convenient remedy. The notice had immediate effect, suspended all regulated activity, was likely to cause substantial losses and raised a fundamental question of law for which early judicial review was appropriate. The court also relied on R v Hillingdon BC ex p Royco Homes Ltd (1974) QB 720 and R v Falmouth and Truro PHA v South West Water Ltd [2001] QB 445.