Walleys Quarry Ltd, R (on the application of) v The Environment Agency

A regulator-initiated landfill closure notice may require the operator to cease accepting waste where that is a necessary first step in commencing closure. The power is not confined to the operator’s provisional closure plan incorporated in the environmental permit. A closure notice does not revoke the permit: the permit and its conditions continue during closure and after-care.

There is no general right to make representations about the precise steps proposed in a closure notice. Interim relief staying a decision pending a non-suspensive statutory appeal is exceptional. The claimant must show a real issue to be tried involving abuse of power, impropriety or unfairness; compelling evidence establishing a high probability that the appeal will be rendered illusory by insolvency; and unsuccessful attempts to secure expedition. The public interest remains an important consideration.

The Environment Agency served a closure notice under paragraph 10 of Schedule 10 to the Environmental Permitting (England and Wales) Regulations 2016 in respect of a landfill site. The notice required the claimant to cease accepting waste immediately and to undertake further closure steps.

The claimant had appealed to the Secretary of State under regulation 31, but the appeal did not suspend the notice. It sought interim relief staying the notice pending that appeal and permission to bring judicial review, arguing that the closure notice exceeded the statutory power, operated as a revocation without the safeguards applicable to revocation, and was procedurally unfair.

The central issues were whether the proposed grounds were arguable, whether insolvency would make the statutory appeal illusory, and where the balance of convenience lay.

1. Interim-relief criteria. The court accepted that section 37 of the Senior Courts Act 1981 conferred jurisdiction to grant the stay sought. Where a statutory appeal is non-suspensive, interim relief requires a real issue to be tried; arguable unlawfulness amounting to abuse of power, impropriety or unfairness; compelling evidence giving a high degree of probability that insolvency will render the appeal illusory; and attempts to secure expedition. If those requirements are met, the court must assess the balance of convenience with the public interest given substantial weight.
2. Scope of the closure power. Paragraph 10 of Schedule 10 to the Environmental Permitting (England and Wales) Regulations 2016 is not confined to the provisional closure arrangements in the permit. Regulator-initiated closure may require a bespoke closure plan addressing the irregularities that caused closure. The word “steps” is not restricted by the different wording used for enforcement notices.
3. Cessation of waste acceptance. Nothing in Article 13 of the Landfill Directive or paragraph 10 of Schedule 10 prevented the notice from requiring the operator to cease accepting waste. That was capable of being a necessary first step in meaningful closure.
4. No disguised revocation. A closure notice is not revocation by another name. Under paragraph 10(4), the permit and its conditions continue after service of the closure notice. The claimant was therefore not deprived of the procedural regime applicable to revocation.
5. Procedural fairness and evidence. The EPR 2016 imposed no general obligation to invite representations on every proposed step. The claimant had received notice of the intended closure and had made detailed representations. Its expert evidence could be advanced in the statutory appeal. Its financial evidence did not compellingly establish that insolvency was highly probable, and the balance of convenience favoured refusal because of the environmental and public-health interests involved.
6. The application for interim relief was refused and permission to apply for judicial review was refused.

First-instance judicial review and interim-relief decision. No earlier appellate decision is stated in the judgment.