Friends of the Earth Ltd, R (On the Application Of) v Cuadrilla Bowland Ltd

When varying an environmental permit for a mining waste facility, the regulator is not required to reassess every aspect of the operation or the approved waste management plan on each application. Under the Mining Waste Directive (2006/21/EC), review is required in the circumstances specified by Article 5(4), including every five years or where there is a substantial change to the operation or waste deposited. General duties concerning best available techniques do not extend that obligation.

A regulator’s conclusion that a proposed variation is not substantial may be challenged for irrationality, but disagreement with an expert regulator’s technical assessment is insufficient. Where an alleged procedural error would highly likely have made no substantial difference to the outcome, relief may also be refused.

Friends of the Earth challenged the Environment Agency’s decision of 11 December 2017 to vary Cuadrilla’s environmental permit for hydraulic fracturing at Preston New Road, Lancashire. The variation changed the limit from 765 cubic metres of fracturing fluid per day to 765 cubic metres per hydraulic fracturing stage.

The claimant argued that the Agency had failed to reconsider best available techniques, including electrocoagulation for treating and reusing flowback fluid, and had failed properly to consider consultation representations. The central issue was whether the variation triggered a duty to reassess the approved waste management plan or the relevant treatment techniques.

1. Disposition. Permission to apply for judicial review was granted because the grounds were arguable, but the claim was dismissed. None of the grounds was made out.
2. The general obligations in paragraphs 6 and 12 concerning developments in best available techniques, and the general environmental obligation in Article 4 of the Mining Waste Directive (2006/21/EC), did not require the Agency to reassess every aspect of the operation whenever an existing permit was varied. Those provisions did not alter the Directive’s specific scheme.
3. Article 5(4) established the relevant threshold for reviewing or amending an approved waste management plan. Review was required every five years or where there were substantial changes to the operation of the waste facility or to the waste deposited. The circumstances were exhaustive. There had been no substantial change requiring review in this case.
4. The Agency was entitled to regard the variation as bringing the permit into line with the approved waste management plan. The plan imposed no limit on the number of hydraulic fracturing stages that could occur each day. The Agency had considered the proposed change in its own right and concluded that it was not significant.
5. The challenge to that conclusion amounted to disagreement with an expert regulator in a complex technical field. No identifiable factual error or irrationality had been established. The Agency had also considered the consultation representations. It was not obliged to address electrocoagulation in detail because it was under no duty to reconsider whether that technique was best available.
6. In any event, it was highly likely that the outcome would not have been substantially different if fuller consideration had been given to electrocoagulation. Relief would therefore have been refused under section 31(2A) of the Senior Courts Act 1981.

The claim was heard as a rolled-up judicial review hearing after Ouseley J had adjourned the permission application for determination at the substantive hearing. Permission was granted, but the claim was dismissed.