Waste Case Law Update. Justine Thornton 39 Essex Street

Transcription

1 Waste Case Law Update Justine Thornton 39 Essex Street

2 Introduction This paper considers a number of significant cases on waste which have been before the Courts in 2007/2008. The content of the cases cover: The definition of waste when does waste cease to be a waste? Spilled materials and waste Japanese Knotweed and unlawful waste deposits Piggy Back Landfills Escaped sewage and waste The meaning of sewer Waste derived fuels Waste offences and sentencing Landfill tax and waste Waste legislation citizens actions 1) The definition of waste. When does waste cease to be waste? In OSS Group Ltd v Environment Agency [2007] EWCA Civ 611 the Court of Appeal has now allowed an appeal against a decision of Burton J that it was not possible as a matter of law to recover a non-waste fuel from waste lubricating oil. Burton J had held that a test on the basis that waste ceased to be waste if a process had been carried out to eliminate the danger typical of waste and the resulting product was no more polluting than an equivalent natural product was unworkable and no substitute for the control imposed by the European waste regime. Burton J was required to consider whether the claimant companies (SRM and OSS) had to comply with the European waste regimes laid down principally now in Directives 2006/12/EC, 2000/76/EC and 75/439/EEC. SRM and OSS sold different products that were derived from waste, marketing their products on the basis that they had ceased to be waste as a result of a particular recovery process. SRM also used some of its products to burn as fuel. OSS's product was "clean fuel oil", which it sold competitively to customers on the basis that it was not waste and the customers would not have to be subject to the waste regime. The Environment Agency directed that their practices fell within the European legislation relevant to waste. The financial implications of making their businesses compliant with the legislation were substantial. The common issues between SRM and OSS that fell to be determined were (i) in what circumstances did or could material that had become waste or was derived from waste cease to be so if it was to be burnt as fuel; and (ii) whether waste ceased to be so when a prior process was carried out for the purpose of rendering it safe to be burnt as fuel or whether it could only cease to be waste when burnt. SRM and OSS submitted that their businesses complied satisfactorily with the European jurisprudence and the proper interpretation of the legislation, and specifically that their products had undergone a "complete recovery operation" within the meaning of ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting (C-418/97 & C-419/97) [2003] Env LR 2, the result of which was that they ceased to be waste and could be burnt in a non-waste compliant plant. They took support from the tests proposed by Advocate General Alber in ARCO that their products, or the recovery operation that produced their products, would not fall foul of the legislation if they did not present a danger typical of waste and were no more polluting than an equivalent natural product. They further argued, in policy terms, that if waste could be recovered into a material that was environmentally 2

3 satisfactory and as safe as a natural product, its use should be encouraged and not penalised. The Agency submitted that it would undermine the entire structure of the Directives if the careful controls therein were replaced simply by a system of trust in relation to the compilation of fuel specifications. In effect the Environment Agency ran a floodgates argument on the basis that any such system would be open to interpretation and abuse. It further argued that the Directives were inconsistent with any suggestion that products derived from waste could simply be safely burned and that Directive 2006/12, in particular, established a hierarchy in which the prevention or reduction of waste production came expressly before the encouragement of waste recovery. After Burton J accepted the Environment Agency's submissions, and that the substances only ceased to be waste for the purposes of Directive 2006/12 when actually burnt, OSS appealed on the limited issue of whether a lubricating oil, not originally used as fuel, that became waste could thereafter be burnt as anything other than waste. The Agency submitted that if the intended end use was combustion, the materials remained waste until that was completed, regardless of any prior treatment. Carnwath LJ conducted an extensive review of the European and national case law on the subject, but felt the European law as interpreted by the ECJ made it impossible to provide a definitive ruling. He pointed to the logical incoherence of ECJ case law on the point, with a fundamental problem identified as the Court s professed adherence to the definition in Directive 2006/12 Art.1(a), even where it could be of no practical relevance. The subjective intention to discard could be a useful guide to the status of material in the hands of the original producer but it was hard to apply to the status of material in the hands of someone who bought it for recycling or reprocessing, or put it to some other valuable use. In no ordinary sense was such a person discarding or getting rid of the material, and his intention was precisely the opposite. The ECJ had understandably held that a material did not cease to be waste merely because it had passed into the possession of someone who intended to put it to a new use, but that should not be because it still met the Art.1(a) definition in their hands, rather because, in accordance with the aims of the Directive, material that was originally waste needed to continue to be treated as such until acceptable recovery or disposal had been achieved. The ECJ had consistently declined to develop workable criteria to determine that question. Instead, it continued to insist that the discarding test remained applicable, even where the holder was an end-user whose only subjective intention was to use, not to get rid of the materials. Whilst paying lip-service to the discarding test, the ECJ in practice subordinated the subjective question implicit in that definition to a series of objective indicators derived from the policy of the Directive. The Agency s test for end of waste was too narrow. It should be enough that the holder had converted the waste material into a distinct, marketable product that could be used in exactly the same way as an ordinary fuel, and with no worse environmental effects. Whilst thinking it wrong for the Court of Appeal to go further and provide a definitive test, Carnwath LJ urged the Agency and DEFRA to cooperate to produce practical guidance on the issue. 2) Spilled materials and waste: European Court of Justice ruling Case C-188/07 Commune de Mesquer v. Total France SA (13 March 2008). This case concerned the Erika oil spill off Brittany in 1999, and raised the question of whether the heavy fuel oil which ended up on the beaches was waste. The AG held that heavy fuel oil as the product of a refining process, which meets the user s specifications and is intended to be used as fuel, is not waste. The ECJ agreed holding that:..heavy fuel oil sold as a combustible fuel, does not constitute waste within the meaning of Directive 75/442 where it is exploited or marketed on economically advantageous terms and is capable of being used as a fuel without requiring prior processing Spillage of the oil, where it became mixed with water and sediment, did however constitute its discarding as waste. 3

4 In the case of hydrocarbons which are accidentally spilled and cause soil and groundwater contamination, the Court has held that they do not constitute a product which can be reused without prior processing (see Van de Walle) The same conclusion must be reached in the case of hydrocarbons which are accidentally spilled at sea and cause pollution of the territorial waters and then the coastline of a Member State It is common ground that the exploiting or marketing of such hydrocarbons, spread or forming an emulsion in the water or agglomerated with sediment, it is very uncertain or even hypothetical. It is also agreed that, even assuming it is technically possible, such exploiting or marketing would in any event imply prior processing operations, which, far from being economically advantageous for the holder of the substance would in fact be a significant financial burden. It follows that such hydrocarbons accidentally spilled at sea are to be regarded as substances which the holder did not intend to produce and which he discards, albeit involuntarily, while they are being transported so that they must be classified as waste within the meaning of Directive 75/442 That then raised the issue of whether the producer of the heavy fuel oil may be ordered to bear the cost of disposing of the waste, pursuant to Article 15 of the Waste Framework Directive. The ECJ held that the national court may regard the seller of those hydrocarbons and charterer of the ship carrying them as a producer of that waste and thereby a previous holder for the purposes of applying the first part of the second indent of Article 15 if that court, in light of the elements which it alone is in a position to assess reaches the conclusion that the seller-charterer contributed to the risk that the pollution caused by the shipwreck would occur, in particular if he failed to take measures to prevent such an incident, such as measures concerning the choice of ship. The Court also held that if it happens that the cost of disposing of the waste produced is not borne by the International Oil Pollution Compensation Fund or cannot be borne and national law also prevents that cost from being borne by the shipowner and/or the charterer, even thought they are to be regarded as holders of the waste within the meaning of Article 19(c ) of the Waste Framework Directive, such a national law in order to correctly transpose Article 15 will have to make provision for that cost to be borne by the producer of the product from which the waste thus spread came. In accordance with the polluter pays principle however, such a producer cannot be liable to bear that costs unless he has contributed by his conduct to the risk that the pollution caused by the shipwreck would occur. 3) Japanese knotweed and unlawful waste deposits The Administrative Court has provided a significant interpretation of the provisions of section 59 of the Environmental Protection Act The case confirms that a notice under that section may be used to require the treatment of unlawfully deposited controlled waste, without removing it. In Neal Soil Suppliers Ltd v Environment Agency [2007] EWHC 2592 (Admin), the claimant had removed soil contaminated with Japanese Knotweed, which was controlled waste, with a view to treating it under licence on its own land and then recycling it. Having deposited the soil, the claimant then failed to obtain a waste management licence for the treatment. The Environment Agency prosecuted both the claimant and the developer from where the soil came under section 33 of the 1990 Act, with both parties convicted and fined. The Agency then served a notice under section 59 requiring the soil to be removed within 28 days, but without specifying where this should be to. Section 59(1) provides: 4

5 (1) If any controlled waste is deposited in or on any land in the area of a waste regulation authority or waste collection authority in contravention of section 33(1) above, the authority may, by notice served on him, require the occupier to do either or both of the following, that is (a) to remove the waste from the land within a specified period not less than a period of twenty-one days beginning with the service of the notice; (b) to take within such a period specified steps with a view to eliminating or reducing the consequences of the deposit of the waste. The code of practice for treatment of such soil when it was found on a site set out three options, two of which involved leaving it in situ and treating with appropriate pesticides. The third option was to remove it to a licensed facility which, in the case of Japanese knotweed, did not exist, or to remove to a landfill site. The claimant appealed against removal to the Magistrates Court, proposing that the notice should be modified so as to require treatment in situ, with removal if that proved ineffective. The appeal was dismissed and the claimant appealed to the Crown Court, which noted that the treatment proposals were similar to those that could have been used at the site from which it was removed and were no more damaging than if the soil had been left there. Nevertheless the Crown Court refused to modify the section 59 notice, finding that there were policy reasons for It stated a case to the High Court asking whether it had been correct to base its decision on the view that, in the light of the waste management legislation and its purpose, the steps proposed to be taken by the claimant with a view to eliminating or reducing the consequences of the deposit of the waste under section 59 of the Act would be contrary to the purpose of the legislation and/or would involve the commission of an offence under section 33(1)(b) of the 1990 Act, or both. The Crown Court was concerned that it would undermine the purposes of the Waste Framework Directive (75/442/EEC) and the 1990 Act of it was to allow an unlicensed person to treat wrongfully deposited waste on its land, and would permit the commission of a further offence under section 33. Keene LJ allowed the appeal, finding that the Crown Court appeared to have said that it could not modify the notice so as to permit a criminal offence to be carried out. There was an obvious legal flaw in that section 59 not only empowered the service of a notice to require both removal of the waste and specified steps to eliminate or reduce the consequences of the deposit, but it could also require either of those two things; merely removal of the waste, or merely the taking of the steps under section 59(1)(b). In other words, a section 59 notice may perfectly lawfully allow the waste to remain deposited on the land, albeit that the deposit breached section 33, and the notice may simply require some steps short of removal to be taken. It was self evident that this course of action would normally involve allowing the occupier to keep the waste on his land although that in itself would otherwise be an offence under section 33(1)(b). Likewise, the section 59 notice could require the occupier to treat the waste in some way. Consequently, section 33(1) had to be read subject to section 59(1). Action in compliance with the section 59 notice would not amount to a criminal offence under section 33(1). That was entirely accepted by the Agency and to the judgment of the Crown Court had been based upon the contrary view, it had been erroneous. Although that in itself was enough to warrant remittance of the instant case to the Crown Court for reconsideration, observations would be made as to the second element in the reasoning. When faced with an appeal against a section 59 notice, the purpose of the Waste Framework Directive was protection of human health and the environment, and did not seem to point strongly in favour of removal or against treatment. The Crown Court approach may have been influenced by a desire to prevent evasion of the waste management licence system and to prevent commercial gain from this. These were essentially considerations of punishment of the offender and deterrence of others, which were achieved through the section 33 procedures, and inappropriate considerations in section 59 proceedings. The purpose of section 59 was remedial, with the task to decide the most appropriate remedial steps in the context of protecting human health and protecting the environment, rather than to make good any deficiencies in the penalties imposed in criminal proceedings. In any such appeal an offence would have been committed, and if there was to be the sort of approach adopted by the Crown Court in the present case, then in 5

6 almost every case the court would prefer, on no other good or pragmatic grounds, the course of removal rather than treatment. No such presumption was implied in the provisions of section 59. 4) Piggy-back landfills In R (on the application of (Anti-Waste Ltd) v Environment Agency [2007] EWHC 717 (Admin; [2007] Env LR 28, the High Court held that a permit allowing for the deposit of waste in a landfill site that overlapped a previous existing closed cell of waste, a procedure known as "piggybacking", could be lawfully granted only if it could be demonstrated that there was no serious risk of pollution either currently or in the future from either the new or the old cell of waste. The claimant company (AWL) applied to quash the refusal by the Agency of permits to allow AWL to deposit waste in two landfill sites and sought declarations to establish the true construction of material provisions in the relevant landfill regulations. AWL had sought to landfill at two sites so that the waste it deposited would overlap that in a previous existing closed cell of waste, a procedure known as "piggybacking". The Agency refused permission on the basis that piggybacking was not permitted by Directive 1999/31, which was implemented by the Landfill (England and Wales) Regulations The lawfulness of piggybacking fell to be determined and issues arose as to whether (i) a landfill permit could lawfully be granted for the separate operation of a landfill that partially overlaid a closed cell containing previously deposited waste; and (ii) if a permit had to relate to the whole site, namely the proposed landfill together with the closed cell, the agency was required to refuse to grant a permit where the existing deposits in the closed cell were responsible for harmful discharges to groundwater and where the landfills as a whole could not be made to comply with the technical requirements of the relevant landfill directives. Collins J held that : (1) In principle a site did not mean an area of ground there could be an underground landfill site, as the Court of Appeal had found in Blackland Park Exploration Ltd v. Environment Agency [2003] EWCA Civ Thus it was incorrect as in RGN 6 to say that as a matter of law it was necessary to delimit the landfill by a line on a plan. Further a piggy-back landfill could be a stationary technical unit for PPC purposes. (2) A permit could not be granted for piggybacking if there was any serious risk that, as a result of the new deposits, pollution might occur from the old cell, for example because of compression. Equally, there had to be no interference with the ability to control any pollution from the old cell such that there was a risk of serious pollution of the environment. Thus, if engineered barriers might not survive for a sufficiently long time to cater for any after care requirements, a refusal would be justified. In principle, however, there was no reason why a new deposit in a defined area that excluded an old cell should not qualify. Piggybacking as claimed by AWL was therefore lawful only if it could be demonstrated that there was no serious risk of pollution either currently or in the future, and a landfill permit did not have to refer to the whole site including the old cell. (3) In the light of that decision, the groundwater issue did not arise for determination but had an installation to have been regarded as including an existing closed cell, the Groundwater Regulations 1998 would prevent the grant of an authorisation if there were any relevant discharges, whether or not the new deposits themselves caused any such discharges. The matter then went to the Court of Appeal in R (on the application of Anti-Waste Limited) v Environment Agency & Secretary of State for the Environment Food & Rural Affairs [2007] EWCA Civ 1377 (Pill LJ, Sedley LJ, Rimer LJ). The Environment Agency appealed against the judgment of Collins J. As well as the points of law, several interesting practical issues emerge from the judgment. Collins J had granted two declarations that: 1) As a matter of law, a landfill permit may be granted pursuant to the Landfill Regulations for the operation of a separate landfill which partially overlies a closed cell containing previously deposited waste 2) Where an installation or part of an installation as a landfill includes a closed cell which is discharging and which will continue to discharge a List I substance into groundwater or a List II substance such as 6

7 to cause pollution of groundwater, a landfill permit cannot as a matter of law be granted for that landfill as the landfill permit would thereby permit those discharges to be made from that landfill contrary to the Groundwater Regulations. The Environment Agency appealed against the first declaration and Anti Waste Ltd (a waste management company) appealed against the second declaration. On the issue of whether a landfill permit could lawfully be granted for the operation of a piggy backing landfill, the Court of Appeal agreed with Collins J that a permit could be granted as a matter of law. The issue turned on interpretation of the PPC Regulations which require permits for an installation which includes landfills over a certain size and, in particular, the interpretation of the definition of installation as a stationary technical unit where one or more activities listed in Annex 1are carried out, and any other directly associated activities which have a technical connection with the activities carried out on that site which could have an effect on emissions and pollution. The Agency sought to argue that technical unit had to be defined as including both the piggybacked cell and the old landfill cell. Collins J had held that a new deposit in a defined area which excluded an old cell was capable of qualifying as a stationary technical unit. The Agency s concern seems to have been driven by practical difficulties inherent in piggy backing including identifying the culprits of pollution occurs. However Collins J took the view that such technical difficulties do not establish that a permit cannot be granted as a matter of law i.e. he separated the practical difficulties from the legal question. The Court of Appeal dealt with the point fairly shortly and agreed with Collins J The other issue concerned the Groundwater Regulations and turned on the construction of the word permit in Regulation 4 of the Groundwater Regulations 1998 in that Regulation 4(1) of the Regulations provides that an authorization shall not be granted if it would permit the direct discharge of any substance in List 1. Pill LJ questioned the need to decide the issue given the Court s decision that an installation did not include a closed cell. However the parties requested that the Court rule on the matter which he said he did with some hesitation. He took the view that a PPC permit which did not require the ending and prevention of an old discharge does not permit that discharge. The Groundwater Regulations contemplate a discharge direct or indirect which results from the activity to be authorized and its consequences but not a discharge extraneous in the sense that it is unrelated to the new activity. The other practical issue relates to the Court s hostility to the use of declarations. The case began life in the Admin Court as an application to quash the Environment Agency s refusal to grant permits to deposit into two landfill sites. By the time that the case came on before Collins J, as the Court said, the company had recognized that its proper course in relation to the refusal of permits was to appeal to the Secretary of State pursuant to Part IV of the Pollution Control Regulations. This would enable factual and technical matters to be dealt with before a specialist tribunal. The company pursued the claim for declarations so that the statutory appeals could be heard in light of them. It appears, from Sedley LJ s judgment that the content of the declarations that were made following trial were agreed between Counsel in light of the judgment by Collins J. Sedley LJ said as follows: In my view neither the declarations which were made nor any of the expanded versions put, at our invitation, before this Court, is a proper use of the court s declaratory function. The pursuit of them in advance of the statutory appeal to the Secretary of State is an inappropriate endeavour to anticipate part of that appeal. To do so without the technical facts is seek declarations of Delphic generality; to tie a declaration to ascertained facts is an impossibility if the Court is not to take on the role of the Secretary of State and to tie it to assumed or hypothetical facts is a waste of time Sedley LJ expressed disquiet at the way the parties had fought over competing versions of declarations which he said added nothing of value to the relevant regulation. He said that, in light of the Agency s view that for a variety of technical reasons piggybacking was unlikely in practice to be accepted that why in this situation 7

8 the declaration has been fought over at all is incomprehensible and that he would quash both declarations. In contrast the value of Collins J s judgment was that it provides a reasoned determination with which he agreed. 5) Escaped sewage as waste The long running case of R (Thames Water Utilities) v South East London Division, Bromley Magistrates Court (Case C-252/05), concerns the prosecution of Thames Water for [sewage escaping from pipes maintained by the Company]. The company was charged with 15 offences; 11 contrary to section 33 of the Environmental Protection Act 1990 and four contrary to section 85(3) of the Water Resources Act A preliminary issue arose as to whether, even if the Environment Agency proved the case alleged, the prosecution would still fail in relation to the 11 charges because, as a matter of law, sewage escaping from pipes maintained by a statutory undertaker was not controlled waste for the purposes of section 33 of the Environmental Protection Act. Accordingly, the following two questions were referred to the European Court of Justice: 1. Whether sewage which escapes from a sewage network maintained by a statutory sewerage undertaker pursuant to the Urban Waste Water Treatment Directive 91/271/EEC and/or the Water Industry Act 1991, amounts to 'directive waste,' for the purposes of the Directive 75/442/EEC (as amended). 2. If the answer to (1) is in the affirmative, whether the aforesaid sewage: (a) is excluded from the scope of 'directive waste' under the WFD by virtue of article 2(1)(b)(iv)of the WFD, in particular, by virtue of the UWWTD and/or the WIA 1991; or (b) comes within article 2(2) of the WFD and is excluded from the scope of 'directive waste' under the WFD, in particular, by virtue of the UWWTD. In summary: the ECJ held that escaping waste water was in principle "waste" within art.1 of the Directive, but it left open the issue as to whether it was covered by other domestic legislation so as to be excluded under art.2. For that to be so, the domestic legislation must contain "precise provisions organising the management of the waste in question", and must ensure a level of protection of the environment equivalent to that guaranteed by the Directive, in particular art.4, art.8 and art.15 The ECJ held that the Waste Framework Directive clearly included waste waters within the definition of waste in Annex I and so the question was that of whether these were discarded. The verb discard had to be read in the light not only of the aims of the Waste Framework Directive of protecting human health and the environment but also Article 174(2) EC which provided that Community policy on the environment shall aim at a high level of protection and based on the precautionary and preventative principles. The fact that waste water escaped from a sewerage network did not affect its character as waste within the meaning of the Waste Framework Directive; the escape of waste water from a sewerage network constituted an event by which the sewerage undertaker, the holder of that waste water, discards it. The fact that the waste water was spilled accidentally did not alter the outcome (Van de Walle & Others (Case C-1/03) was referred to). The Court had held that the Waste Framework Directive would be made redundant in part if hydrocarbons which caused contamination were not considered waste on the sole ground that they were spilled by accident, and the same reasoning had to be applied to waste water which leaked accidentally. The answer to Question 1 had therefore to be that waste water which escaped from a sewerage network maintained by a statutory sewerage undertaker pursuant to Directive 91/271/EEC and the legislation enacted to transpose that directive constituted waste within the meaning of the Waste Framework Directive. Under Article 2(1)(b)(iv) of the Waste Framework Directive waste waters, with the exception of waste in liquid form, were excluded from the scope of that directive, provided that those waste waters were already 8

9 covered by other legislation, which the court had found could include other domestic legislation. To be regarded as other legislation within the meaning of Article 2(1)(b), the rules in question had to not merely relate to a particular substance, but to contain precise provisions organising its management as waste within the meaning of Article 1(d) of the directive and ensuring a level of protection which was at least equivalent to that resulting from the Waste Framework Directive. Although it regulated the collection, treatment and discharge of waste water, Directive 91/271/EEC did not ensure such a level of protection. It did no more than lay down, as regarded leakage of waste water, a duty to prevent the risk of such leaks when designing, constructing and maintaining collecting systems and did not lay down any objective in relation to the disposal of waste or decontamination of contaminated soil. It could not therefore be regarded as relating to the management of waste water which escaped from sewerage networks and ensuring a level of protection which was at least equivalent to that resulting from the Waste Framework Directive. It had not been possible to determine whether the national legislation contained precise provisions organising the management of the waste and ensuring such a level of protection, and that was a matter for the national courts. Directive 91/271/EEC did not contain any provision which concerned, as such, waste water escaping from a sewerage network. It could not therefore be regarded as containing specific rules for particular instances or supplementing those of the Waste Framework Directive on the management of waste water which escaped from a sewerage network. The case returned to the domestic courts in July 2008 ([2008] EWHC 1763 (QB)). Thames Water Utilities submitted that there was such domestic legislation which therefore excluded the application of the Directive, and relied upon a combination of statutory provisions, namely Part III and Part IIA of the 1990 Act, the Water Industry Act 1991, and the Urban Waste Water Treatment (England and Wales) Regulations The Divisional Court held that it was not in dispute that the escape of untreated sewage onto land might bring into play one or other of the provisions identified by Thames Water. However, what was much more difficult was to understand how, individually or together, they could be described as "precise provisions organising the management of the waste". The requirement for precise provisions was not met by piecing together a patchwork of miscellaneous provisions that, taken together and depending on how they were operated in particular cases, might achieve similar practical effects to those of the Directive. The fact was that there were no precise provisions governing the management of waste that escaped unintentionally from the sewerage system. Accordingly, they were not "covered by other legislation" in the sense explained by the ECJ. In answer to the preliminary question, sewage escaping from pipes maintained by a statutory undertaker was "controlled waste" within the meaning of s.33 of the 1990 Act. The case was remitted to the magistrates' court to be determined on the merits. 6. The meaning of sewer The Court of Appeal has decided a case which involved the issue of whether a water culvert from which flooding was causing a nuisance was a sewer so that the sewerage undertaker had statutory responsibility for it. In Raglan Housing Association Ltd v Southampton City Council [2007] EWCA Civ 785, the respondent was a housing association which owned land abutting the culvert and claimed that the sewerage undertaker and/or the local authority was responsible for its maintenance. The questions of whether the culvert was a sewer and whether the sewerage undertaker had statutory responsibility for it were tried as preliminary issues and the County Court found that the culvert was a surface water sewer, but not a public sewer. The channel, of which the culvert formed part, had once been a natural stream but, whilst the culvert adjacent to the Housing Association s property was open, much of the channel s length had been covered over, part of the culvert was piped, and the whole length of the channel was lined with concrete. The trial judge found that in 1878 the channel carried both natural groundwater and surface water and that there was still a continuous clear flow of water in dry weather, but the source of that flow was not known. The channel received a great deal more surface water than it once had done, brought to it by way of upstream surface water 9

10 sewers, and some points upstream from the culvert received overflow of foul sewage. The judge also found that there was no evidence as to who had undertaken the work to line the culvert. Parts of the channel downstream from the property had been the subject of works done by the relevant sewerage undertaker as such. The local authority appealed against the County Court s findings on the preliminary issues, arguing that the only relevant matter was the nature of the flow through the channel, rather than changes made to its construction; and that a watercourse could only become a sewer if the contents of the flow consisted so substantially of lawfully deposited foul sewage that it had become essentially a foul water sewer. The local authority contended that the change in the nature of the flow in the culvert had been nothing like substantial enough to turn the channel from a watercourse into a sewer. The Court of Appeal allowed the appeal by a majority and with some differences of view as to the effect of the decision of the Court of Appeal in British Railways Board v Tonbridge & Malling D.C. Lloyd L.J. found that the judge had erred in holding that it was for the local authority to prove that the continuous base flow of clear water in dry weather still included natural ground water. As the channel had clearly been a watercourse originally, the burden of proof was the other way. He ought not to have taken into account, to the extent that he ha d, the discharge of foul sewage into the channel. The fact that the course of the stream now lay over, or through, concrete culverts or pipes was not a matter which by itself could have any relevance to the decision. Construction works could be relevant if done under statutory authority, but none were relevant to the culvert. Change in the route of the channel was also irrelevant, especially since almost all the significant changes were downstream from the culvert and matters downstream were inherently of little or no relevance to the status of the culvert. The judge had also erred in considering the status of the channel as a whole, rather than that of the culvert, albeit in the context of the rest of the channel so far as relevant. In Lloyd L.J. s view, what was relevant was the nature of the flow through the culvert. The stream started as a watercourse, carrying natural ground water, as well as, inevitably, some surface water. It still started in the same place and was still partly open there. In those circumstances the natural assumption should be that it still carried some natural ground water. It also carried a lot more surface water than it used to, and occasionally carried some foul sewage, though the latter was irrelevant as the terms on which that was discharged were not known. The only relevant change in relation to the culvert itself was the large increase in surface water. The fact that there had been substantial works upstream, including some which appeared to have the status of public sewers, which added to the flow of surface water was not sufficient to constitute the flow a sewer rather than a watercourse. Toulson L.J. dissented, finding that British Railways Board did not provide a platform for the argument that the only circumstances in which a watercourse could become a sewer were where it had come to carry substantial quantities of foul sewage. If the channel immediately upstream of the culvert had been turned into a public sewer to accommodate principally surface water in much increased quantity, but also some foul water when the occasion required, the impact of those changes on the culvert was properly to be taken into account in considering whether it had changed its character. Whether there had been such a change was ultimately a question of fact and degree. The fact that the local authority s own Public Sewer Map showed the relevant section as a public sewer until the present dispute arose, and the water authority issued a new version showing it not as a public sewer, was material which the judge was entitled to take into account as evidence of how the authority itself regarded the relevant section at the time when the map was originally prepared. The judge was entitled to conclude that at the relevant time the culvert with which he was concerned had become but a section in a network of a public sewerage system, predominantly but not exclusively for surface water, and that its character had therefore changed to the extent that it had become a sewer. Sir Andrew Morritt (the Chancellor) allowed the appeal, but found that the nature of the contents or flow of the culvert was the most significant factor in the determination of the question whether what was once a natural watercourse had become a sewer. However, the decision of the Court of Appeal in British Railways Board v Tonbridge & Malling D.C. did not establish that alterations to the bed and banks of the culvert or of an upstream section of the channel were irrelevant to the question. It was easy to envisage cases where the additional flow of sewage was inconclusive but works to the relevant bed and banks would resolve the issue. 10

11 7. Waste Derived Fuels The cases of R(Edwards) v Environment Agency and R(Horner) v Lancashire County Council both concern waste derived fuels: R. (Edwards) v Environment Agency (No.2) ([2008] UKHL 22) concerns the granting of a Pollution Prevention and Control ("PPC") permit by the Environment Agency under the PPC Regulations 2000 (S.I /1973) to burn shredded and chipped tyres as a partial substitute fuel in cement kilns. The grant was challenged by judicial review by a local resident living in the vicinity of the cement works in Rugby. Although the requisite notice and advertisement requirements were complied with prior to the grant of the PPC permit, the claimant argued that the Agency had failed unlawfully to disclose sufficient information on the impact of particulates emitted from the proposed installation. The Agency had two internal reports which considered the details of a desktop study of the effects of atmospheric emissions, especially from particulates, from the cement works. Neither of these was disclosed to the public as part of the statutory consultation exercise. The claimant argued that: the Agency had failed to assess the impact from the emission of particulates from the site; the switch to the tyres as a substitute fuel was capable of being a project which in relation to which the need for an Environmental Impact Assessment should have been considered; the permit application was so deficient in detail about the environmental impact of atmospheric emissions that it had not passed the threshold of being a proper application for a PPC permit; the failure to disclose the reports as part of the public consultation exercise had been unfair and rendered the procedure unlawful; and the Agency had misunderstood the internal reports on the effects of particulates emissions and that no reasonable authority would have issued the permit if it had understood the report properly. The judge, and the Court of Appeal, accepted the lack of full consultation point, but refused relief as a matter of discretion. The other points were rejected. The case has now been the subject of an appeal by the claimant to the House of Lords. He argued that (i) that the proposal amounted to a project falling either in Annex I or Annex II to Directive 85/337; (ii) the Environment Agency had been required by the IPPC Directive and by the PPC Regulations 2000 to undertake public consultation, as well as having a common law duty to do so as a body exercising public functions. The appeal was dismissed. On the EIA point, the majority of House of Lords found that the change in fuel could not amount to an Annex I project, as it was not the creation of something new, as opposed to a change in the way in the way the existing works were used. This finding meant that the proposal did not fall into Annex II of the EIA Directive. That said, the House of Lords acknowledged that they would have been inclined to refer the matter to the European Court of Justice as the matter was not acte clair, had they not gone on to decide that the information in fact provided complied with the provisions of the EIA Directive. Lords Brown and Mance thought that the change probably did amount to a project within the Directive, though agreed that there had been compliance with its terms even if the Directive was applicable. They thought that the term was rather more widely applicable that the majority would have it, and that the introduction of waste burning fell within the definition of project. Turning to the consultation point, the majority held that there been no breach of the IPPC Directive. The provision of information to the public was only required when there was a substantial change to an existing installation which may have significant negative effects on human beings or the environment under Art. 2.10(b) of the IPPC Directive. There was an unchallenged finding of fact by Lindsay J at first instance that the only change in operation proposed, namely the use of tyres, would not have such significant negative effect. 11

12 The second argument concerned the PPC Regulations, the publicity requirements of which went further than the IPPC Directive because they applied to existing installations and required publication of formal supplementary inquiries and the information obtained in response to such inquiries. The majority held that there was no reason to imply a further requirement into the Regulations which excluded informal communication between an applicant and the Agency. It would be extremely inhibiting if the Agency ran the risk that its decision could be vitiated because an applicant was held to have communicated information that ought to have been the subject of a formal inquiry. Lords Mance and Brown disagreed on this last point. The last aspect of consultation, the duty of fairness at common law, was the one upon which the judge and Court of Appeal found a breach. This was not challenged by the Agency on appeal, though Lord Hoffmann doubted whether this concession was right in the light of the specific and narrower statutory provisions. All members of the House agreed that the lower courts were right in exercising their discretion not to quash the decision on this basis. They regarded it pointless to consult on what was out-of-data by the time the matter got to the courts. They rejected submissions based upon the EIA case of Berkely [2001] 2 AC 603 that it was wrong to refuse to quash such deficiencies in information. An appeal against the Administrative Court decision in R (Horner) v Lancashire CC was dismissed by the Court of Appeal [2007] EWCA Civ 784. The case concerned an application for judicial review of the grant of planning permission for the erection at a cement works of machinery to handle animal waste derived fuel. The claimant was a local farmer who argued that the grant should not have been made without the undertaking of an Environmental Impact Assessment. The claimant s challenge was based upon three grounds. First, she submitted that the development was of a nature which required EIA, arguably falling within a number of projects under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations These were submitted to be either a waste incineration installation under Schedule 1, Classes 9 and 10 or Schedule 2, Class 11(b), or an extension to an existing installation under Schedule 2, Classes 13(a) and 5(b) of the 1999 Regulations. Secondly, the claimant argued that one of the permission conditions was irrational in that it did not tie in the burning of the fuel to the manufacture of cement. Thirdly, it was submitted that the defendant had failed to consider the waste management objectives found in the Waste Management Licensing Regulations 1991, Schedule 2 para. 4, and the fulfilment of those objectives found in policies contained in the Waste Local Plan and the National Waste Strategy 2000, and had failed to consider the Best Practicable Environmental Option for the disposal of waste as required by those policies. Ouseley J dismissed the application, finding that the meaning of the various classes in the 1999 Regulations was a matter of law, so that the meaning could be ascertained by reference to the defining characteristics of the relevant class, but that the application of the phrase, adopting the correct approach in law, to the particular facts of an individual case, was a matter of fact and degree, subject to challenge only on conventional public law grounds. The language of the application itself and the surrounding facts had demonstrated that the proposal or project was integral to the manufacture of cement. It was also clear that the proposed development could not possibly have exceeded the relevant threshold of 1000 square metres for Schedule 2 Class 13(a) and 5(b) of the 1999 Regulations. Nor had the development fallen within the class of a waste incineration project as the machinery involved no burning but it merely stored and fed the waste before it was burnt elsewhere, and where a new installation formed an integral part of a larger works, the relevant class for the purposes of the EIA regulations was that which dealt with extensions to whatever class of works those larger works fell into, unless the new works had changed the character of those larger works. The defendant had determined that no material change of use had occurred, and so the proposal had been for the extension of a cement production process. Ouseley J considered that in determining the correct class of installation what mattered was the purpose or the function of the installation, rather than the environmental effects of the process, so that, although it was an effect of the operation as a whole that the fuel was burned, it was as a whole or in isolation, an installation for 12

13 the manufacture of cement, and not for waste disposal. If the operation could be said to be a waste related activity at all it was for the recovery of waste rather than its disposal, and there was no reason for not treating the 1999 Regulations as distinguishing between disposal and recovery installations. As to the condition challenged as irrational, Ouseley J found that this would procure the removal of the equipment at the same time as the rest of the equipment and structures became redundant on the site, and was lawful. The waste management objectives and policies had not applied because although the project for which planning permission was sought was related to the use of waste as an energy source, i.e. to its recovery, it was not a proposal for the incineration of animal waste. Finally, in considering the BPEO for waste disposal there was a limit to the extent to which a waste planning authority had to consider alternatives before it reached a conclusion on what it was satisfied was an environmentally acceptable application which related to the recovery of waste. The defendant had considered the relevant objectives and policies and any specific consideration of BPEO would inevitably have led to the same conclusions. In any event, BPEO was not the ruling consideration but one of a number of objectives which had to be balanced in the context of each case. The claimant s appeal was on the grounds (1) that Ouseley J had erred in holding that the proposed development could not possibly have exceeded the relevant threshold of 1000 square metres for Schedule 2 Class 13(a) and 5(b) of the 1999 Regulations there being no new floorspace so that the threshold was not an appropriate criterion to apply, and there should instead have been consideration of the individual circumstances of whether an EIA was required; and (2) that if, contrary to Ouseley J s ruling, the defendant had erred in law in failing to give proper consideration to the principles of BPEO, it was relevant to his decision to refuse relief that the defendant would have made the same decision whether or not it had given proper consideration to those principles. Auld LJ found that the meaning of floorspace should be interpreted widely to achieve the Directive s objectives and the definitions in the 1999 Regulations and the Town and Country Planning Act 1990 s.336(1) of floorspace and building indicated that the range of meaning of floorspace was wide enough to be a marker of scale in any structure or erection. Given the wide variety of developments to which class 13(a) change or extension of development provisions applied, the threshold as applied by class 13(a) was equally not confined to conventional floorspace. Ouseley J s application of that broader meaning to the measurable base or floor area of the silo had been well within the range of reasonable decisions open to him. Replacement of the floorspace criterion, as a default mechanism, in the context of class 13(a) with a requirement to consider the individual circumstances of projects would be to require a screening opinion in almost every case, which would fundamentally undermine the structure of the 1999 Regulations. There was no basis for introducing a wider case-by-case approach than already provided to meet any perceived lack of appropriateness or adequacy of the class 13(a) size threshold. On the BPEO point, the defendant had effectively considered all the relevant objectives under the Waste Management Regulations, but the issue raised necessarily involved consideration of the impact of BPEO principles on the planning process, in particular, their role as compared with that of EIA requirements. There was an important distinction to be drawn between an environmental impact assessment and consideration of the principles of the policy where either or both were required. An EIA had a two-fold purpose: first to produce an assessment that could be weighed in the planning balance and second to help to inform the public of the substantive issues in the case. The BPEO principles did not have that dual role; they were relevant, albeit importantly, to the balance of planning considerations in the decision-making process, namely as to whether the grant of permission would be in line with the relevant waste objectives. A judge, when considering the lawfulness of a planning permission against the exercise of the local authority's balance of material planning considerations was entitled, subject to Wednesbury constraints, to form a view as to whether in the circumstances the omission or inadequate consideration of BPEO as one of the material considerations would have made any difference. If, as in the present case, a judge held that it would not, given the paucity of practicable lines of enquiry open to it, that was a relevant consideration to his decision that the permission was legally valid. Whilst those findings made consideration of the question of discretion unnecessary, Ouseley J s contingent view on the issue could not possibly be considered as Wednesbury irrational. 13