Recycling With Skips Ltd, R (on the Application of) v Environment Agency

In an appeal against refusal of environmental permits, operator competence may be assessed by reference to a broad evidential picture, including past regulatory breaches, even where those breaches have not led to convictions or formal enforcement action. The decision-maker must make an independent assessment of the evidence and may prefer the regulator’s evidence. Reasons need address the substantial points that make a difference to the decision; they need not recite every item of evidence or explain each allegation individually. A concise decision is lawful if it is comprehensible and intelligible. Where the statutory conditions for a permit are not satisfied, refusal is mandatory.

Recycling With Skips Ltd sought permission to apply for judicial review of an inspector’s decisions dismissing appeals against refusal of environmental permits for two waste sites, and of the associated costs decision. The Environment Agency had relied on evidence of repeated regulatory breaches at the sites and another site operated by the company’s principals. The inspector concluded that the company was unlikely to comply with permit conditions. Permission had previously been refused on the papers by a Vice-President of the Upper Tribunal sitting as a High Court judge. The central issues were the scope of relevant evidence, the adequacy of the inspector’s reasons, and the legality of the costs decision.

1. Application refused. The inspector correctly identified operator competence and likely compliance with permit conditions as the central issue. Under regulation 13 and Schedule 5 to the Environmental Permitting (England and Wales) Regulations 2010, refusal was mandatory where the applicant would not operate the regulated facility in accordance with the permit.
2. The assessment was not confined to criminal convictions or formal enforcement notices. Past conduct and other evidence could be considered, including the catalogue of regulatory breaches relied on by the Environment Agency. The inspector was entitled to prefer that evidence, particularly where the claimant’s evidence had not been fully tested in cross-examination.
3. The decision letter was not unlawful because it did not analyse every individual allegation. A decision-maker must address the substantial points raised and give reasons that are comprehensible and intelligible. The inspector had explained the evidence preferred, its character, and why it led to refusal. Brevity was not itself an error of law.
4. The judge adopted the earlier paper determination’s general description of the decision-maker’s task: the decision was not an examination answer or a statutory text, and it needed to deal only with issues capable of making a difference. The inspector had to decide on the material before him, without speculating about material that might have been available.
5. Applying the familiar grounds of illegality, procedural impropriety and irrationality associated with CCSU, the judge found no public law error. The challenge to the substantive decision and the challenge to the costs decision were both refused. The Secretary of State was awarded the costs of the acknowledgment of service, but not the costs of the hearing; the Environment Agency’s costs position remained as previously ordered.

The judgment itself records that permission had previously been refused on the papers by a Vice-President of the Upper Tribunal sitting as a judge of the High Court. The renewed application was refused by the Administrative Court.