Baci Bedfordshire Ltd, R (on the application of) v Environment Agency & Anor

A regulator’s scientific or technical assessment is reviewable for legal error and irrationality, but judicial review does not permit the court to substitute its own professional assessment. A mistake-of-fact challenge requires an objectively verifiable mistake which was material to the decision and was not caused by the claimant. Where an applicant has made a scientific error, the court must determine whether the regulator adopted that error, rather than assume that incorporation of operational documents incorporated every factual assertion within them. Preventive measures, permit conditions and the regulator’s technical assessment may show that the error was immaterial.

The claimant, a local residents’ action group, sought judicial review of the Environment Agency’s decision to grant Covanta Energy Limited an environmental permit for an energy recovery facility in Bedfordshire. The challenge concerned fugitive emissions of incinerator bottom ash and the risk that dissolved heavy metals might enter surface-water drainage and nearby watercourses.

Covanta accepted that its application contained an erroneous statement that heavy metals would not dissolve in water. The claimant argued that the Environment Agency had adopted that error by incorporating the relevant operating techniques into the permit. The central issue was whether the Agency had relied on the mistake and whether its assessment of pollution risk was irrational or contrary to the applicable environmental requirements.

1. The claim was dismissed. The claimant failed to establish an error of law, irrationality or a material mistake of fact in the Environment Agency’s decision.
2. A mistake-of-fact challenge requires: an existing factual mistake; an objectively verifiable and uncontentious mistake; no responsibility for the mistake on the part of the claimant or its advisers; and materiality to the decision-making reasoning.
3. The scientific error in Covanta’s Supporting Information was clear. However, Condition 2.3.1 and schedule 1, table S1.2 of the permit incorporated the operational techniques in paragraph 2.4.5, such as preventative maintenance, monitoring, housekeeping, operational controls and interceptors. They did not incorporate the inaccurate description of the behaviour of heavy metals.
4. The Agency had not adopted Covanta’s mistake. The permit referred to soluble fractions and the leaching of metals, and the consultation responses showed that the Agency had considered the wider risk of IBA pollution. The error was therefore immaterial to the Agency’s decision.
5. The Agency was entitled to conclude that the proposed measures would prevent or minimise fugitive emissions. These included enclosed IBA processing and storage, dust suppression, covered transport, spill management, penstock valves and arrangements for contaminated water. The Agency was also entitled to reject additional monitoring and the proposed precipitation technique because it did not consider them necessary or BAT in this context.
6. Applying the approach in R (Mott) v Environment Agency [2016] 1 WLR 4338 and Levy v Environment Agency [2003] Env LR 11, the court afforded appropriate latitude to the regulator’s scientific and predictive assessment. It was not the court’s role to second-guess the regulator’s professional judgment where no legal error had been shown.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.