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

An error in an applicant’s environmental-permit materials does not invalidate the permit unless the regulator adopted it or it materially affected its own decision-making. A permit incorporating operating techniques from an application document does not necessarily incorporate explanatory text that describes no technique. Article 46(5) of the Industrial Emissions Directive requires prevention of unauthorised or accidental releases. Minimisation is sufficient only where prevention is impracticable. In judicial review, the court must not substitute its scientific, technical or predictive judgment for that of the regulator absent a distinct public-law error. Contemporaneous documents may demonstrate that the regulator understood the science. The appeal was dismissed.

BACI Bedfordshire Ltd challenged an environmental permit granted by the Environment Agency to Covanta Energy Ltd for a waste incineration plant. The challenge concerned an erroneous scientific statement in Covanta’s supporting information about the solubility of heavy metals in incinerator bottom ash, and whether that error had been incorporated into the permit or adopted by the Agency.

Lang J dismissed the judicial review claim in the Administrative Court, Planning Court: [2018] EWHC 2962 (Admin). The appeal concerned the construction of the permit, mistake of fact, the significance of the dust management plan, and the scope of judicial review of the Agency’s scientific and technical assessment.

Appeal dismissed. The Court of Appeal upheld the dismissal of BACI’s judicial review claim.

1. An error in an applicant’s supporting information is not, by itself, an error by the regulator. It becomes legally material only if the regulator adopted or relied on it and it affected the decision-making process. The mistake-of-fact jurisdiction requires a mistake as to an established and objectively verifiable fact, for which the claimant was not responsible, and which played a material part in the reasoning. Those requirements were not met because the Agency understood the relevant science and the applicant’s error did not influence its decision.
2. An environmental permit is construed objectively, in its full context, without straining its natural meaning. Other documents may assist construction where they are incorporated by reference or are needed to resolve ambiguity. The reference to paragraph 2.4.5 of the supporting information incorporated the operating techniques described there, not explanatory comments about the solubility of heavy metals which did not themselves describe a technique.
3. The permit’s controls prohibited contaminated water discharges and required emissions not controlled by limits not to cause pollution. Read with Article 46(5) of the Industrial Emissions Directive, the condition requiring prevention, or minimisation where prevention was impracticable, required prevention whenever practicable. The permit therefore reflected the statutory duty to prevent unauthorised and accidental releases.
4. The dust management plan formed part of a comprehensive system including enclosed handling, moisture suppression, sealed drainage, interceptors, penstock valves, monitoring and emergency procedures. Whether those measures were scientifically adequate was for the Agency, not the court, provided its assessment was lawful.
5. The court reaffirmed that judicial review does not permit substitution of the court’s own scientific, technical or predictive judgment for that of a specialist regulator. Intervention requires a distinct public-law error, such as irrationality, a material mistake of fact, or another error of law. The Agency’s contemporaneous permit and decision document showed no such error. The precautionary principle did not require the permit to be quashed.

1. Court of Appeal (Civil Division) dismissed the appeal and upheld the Administrative Court’s decision.
2. Administrative Court, Planning Court dismissed BACI’s judicial review claim challenging the environmental permit: [2018] EWHC 2962 (Admin) .