DAVID LEVY v THE ENVIRONMENT AGENCY BLUE CIRCLE INDUSTRIES PLC [2002] EWHC 1663 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

[2002] EWHC 1663 (Admin)

Case No Case No: CO/4765/2001

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL

Between

DAVID LEVYClaimant

THE ENVIRONMENT AGENCY BLUE CIRCLE INDUSTRIES PLC

Defendant Interested Party

Before

Mr Justice Silber

Dr. David Wolfe (instructed by Bindmans for the Claimant)

Mr. Jon Turner (instructed by The Environment Agency for the Defendant)

Mr. Stephen Tromans (instructed by Clarks of Reading for the Interested Party)

Date 30 July 2002

[1]Silber J: Outline of the case Mr. David Levy (“the claimant”) seeks to challenge a decision of the Environment Agency (“the Agency”), which is contained in a Decision Document of August 2001 (“the Decision Document”), under which it granted a variation applied for in June 2000 (“the June 2000 application”) by Blue Circle Industries plc (“Blue Circle”) so as to permit the permanent use of scrap tyres as a substitute fuel at up to 24% thermal substitution at Blue Circle’s cement works (“the cement works”) at Westbury, Wiltshire. The claimant lives in the vicinity of the cement works and he is also founder of “The Air That We Breathe Group”. He complains that the Agency failed to consider properly some of the environmental aspects of the June 2000 application.

[2]Permission to make this application was granted by Elias J. Blue Circle was served as an Interested Party and it has appeared by counsel on the hearing having previously adduced evidence. The Agency is joined by Blue Circle in resisting this application. The claimant has abandoned most of the grounds on which he obtained leave and he now relies on only three grounds. The Agency contends that the claimant still needs permission to pursue one of these grounds as I will explain. The background to this application

[3]In 1962, Blue Circle’s Westbury works commenced its cement producing operations. In 1996, trials were conducted at the cement works using tyres as a substitute for fuel to prove that the use of such power was both practical and acceptable from an environmental aspect. The initial results were inconclusive and it became clear that further trials would be required to improve the conditions in the kilns and to prove that there could be an overall environmental benefit from the use of tyres. In 1997, Blue Circle applied for a variation to its Integrated Pollution Control authorisation, which was granted under a regime introduced by the Environmental Protection Act 1990 (“the 1990 Act”).

[4]Blue Circle was granted permission to conduct a further trial using tyres as substitute fuel up to a maximum 40% thermal substitution. The trial commenced on 1 June 1998. Subsequently, an enforcement notice was issued by the Agency on 11 June 1998 which suspended the trial until management controls for the trial had been revised to the satisfaction of the Agency. The trial was allowed to resume on 22 March 1999 but then only after the Agency was satisfied that the concerns that caused it to issue this enforcement notice had been adequately addressed. At the time of the 1997 application, the consultation draft of the Agency’ Substitute Fuels Protocol was followed. It has now been approved and it was also followed in the course of Blue Circle’s application, which led to the decision under challenge in this case.

[5]In December 1998, the Agency completed the statutory regular four yearly review of all the conditions required for the authorisation of the Westbury works of Blue Circle under section 6(6) of the 1990 Act , which I will explain in paragraph 15. On 16 June 2000, the Agency set a range of new conditions in the authorisation for the Westbury works including a new emission limit as a result of the recommendations for that four year review and consequential work, including assessments of the most exacting emission limits that could be imposed after an extensive consultation exercise.

[6]During the previous trial conducted in 1998 and 1999, tests had been carried out while substituting conventional fuels with tyres up to a maximum thermal substitution level of 40%. In the June 2000 application, Blue Circle sought permission from the Agency to use tyres as substitute fuel up to 24% thermal substitution. By the Decision Document, the Agency granted the June 2000 application of Blue Circle but then only subject to a substantial number of significant conditions and it is this decision which is being challenged on this application.

[7]The Decision Document consists of 166 pages and it was prepared after a very lengthy consultation process, which entailed meetings by the Agency with various interested parties, as well as the Agency receiving and considering comments from many consultees. The Decision Document not only sets out the points so raised and the Agency’s responses to them, but it also states the Agency’s conclusions after considering many different relevant statutory provisions as well as the scientific evidence on various significant health and environmental matters. To understand the present challenge to the decision, it is now necessary to explain the statutory framework against which the June 2000 application was made and considered by the Agency and to which I now turn. The statutory framework in the Environmental Protection Act 1990

[8]Part 1 of the 1990 Act contains a statutory regime for the control of pollution from industrial processes, known as Integrated Pollution Control (“IPC”). Under that regime, those wishing to carry on certain prescribed processes are required to obtain authorisations from an enforcing authority.

[9]The defendant Agency is the relevant enforcing authority in the present case, while cement manufacture is a prescribed process under the IPC regime. Thus, Blue Circle’s Westbury cement works required authorisation from the Agency in respect of the prescribed processes and that included the subject of the June 2000 application, which is the subject of the present application.

[10]Under section 6(3) of the 1990 Act where an application for an authorisation is duly made to an authority (in this case, the Agency), the enforcing authority “shall either grant the authorisation subject to the conditions required or authorised to be imposed by section 7 [of the Act] or refuse the application”.

[11]A provision of substantial importance in this case is section 7(1)(a) of the 1990 Act , which provides that the enforcing authority shall include in an authorisation “such specific conditions as [it] considers appropriate, when taken with the general condition implied by subsection (4) below, for achieving the objectives specified in subsection (2)”. Section 7(2) of the 1990 Act provides, insofar as is relevant to the present application, that: “Those objectives are (a) ensuring that, in carrying on a prescribed process, the best available techniques not entailing excessive cost will be used (i) for preventing the release of substances prescribed for any environmental medium into that medium, or, where that is not practicable by such means, for reducing the release of such substances to a minimum and for rendering harmless any such substances which are so released;…and (ii) for rendering harmless any other substances which might cause harm if released into any environmental medium”.

[12]I will refer to those objectives in section 7(2)(a) of the 1990 Act as “the specified objectives”. The phrase “the best available techniques not entailing excessive cost” in section 7(2)(a) of the 1990 Act is usually known by the acronym “BATNEEC” and I will also refer to it in that way.

[13]The general condition of the 1990 Act implied by section 7(4) of the 1990 Act and which is referred to in section 7(1)(a) of the 1990 Act , is that a person carrying on a prescribed process must, among other things, use BATNEEC for the specified objectives.

[14]Another provision of importance is section 7(7) of the 1990 Act , which insofar as is material to this case, provides that where, as in the case of the June 2000 application, a process is likely to involve the release of substances into more than one environmental medium (i.e., air, water or land). “The objectives referred to in subsection (2) above shall…include the objective of ensuring that the best available techniques not entailing excessive cost will be used for minimising the pollution which may be caused to the environment taken as a whole by the releases having regard to the best practicable environmental option available as respects the substances which may be released”. The phrase “best practicable environmental option” in section 7(7) of the 1990 Act is usually known by the acronym “BPEO” and I will also refer to it in that way.

[15]It is also significant that section 6(6) of the 1990 Act provides that the enforcing authority, in this case the Agency, is under a duty to carry out a review of the conditions of any authorisation “from time to time but not less frequently than once in every period of four years”.

[16]Section 11(1) of the 1990 Act empowers a person carrying on a prescribed process under an authorisation who wishes to make “a relevant change in the process” to apply for a variation of the conditions of the authorisation. The term “a relevant change in a prescribed process” is defined in section 11(11) of the 1990 Act as being “a change in the manner of carrying on the process which is capable of altering the substances released from the process or of affecting the amount or any other characteristic of any substance so released”. Thus the June 2000 application by Blue Circle in this case was made under section 11 of the 1990 Act and the ensuing Decision Document was issued pursuant to it. Section 11(8)(a) of the 1990 Act provides that, on an application for variation of an authorisation under that section, the enforcing authority may either refuse the application, or, subject to the requirements of section 7 , vary the conditions of the authorisation; that explains the significance of section 7 , which, as I have explained, includes “the specified objectives”. The challenge in this case was made in respect of the determination of a section 11 application, namely the June 2000 application.

[17]To complete the picture, I need to explain that the IPC regime is now being replaced by a new environmental regime, established by The Pollution Prevention and Control (England and Wales) Regulations 2000 (“the PPC Regulations”). The PPC Regulations came into effect on 1 August 2000. Under the transitional provisions of the PPC Regulations , IPC authorisations, such as that currently held by Blue Circle, will be superseded if the Agency decides to grant a permit following a fresh application made under the new regime. The application and the issues

[18]Blue Circle’s June 2000 application to the Agency was for permission for variation of its authorisation so that it could use whole tyres on a permanent basis as a substitute fuel in both kilns at the Westbury works. Although the claimant received permission from Elias J to proceed in respect of a number of heads of claim, he has only pursued three of them on the present application; according to the Agency, he still needs permission to pursue one of those claims.

[19]The heads of challenge pursued on this application appear to have been expressed differently on various occasions during the course of this application but I will now quote them in the way that they were summarised by Mr. Wolfe, counsel for the claimant, in his written skeleton argument helpfully presented at the outset of his submissions in reply. Those grounds are that the Agency:-(a) erred in law by failing to ensure that the emission of prescribed substances were minimised by requiring the use of BATNEEC and for example, considering the use of sulphur scrubbers independently of considering whether such emissions were harmful (including to health) and/or complied with air quality standards (“Ground One – The Minimising BATNEEC ground” ) (see paragraphs 24 to 88 below).

(b) acted unlawfully by failing to consider whether in the light of economic advantages of the change of fuel from coal to waste tyres, the use of sulphur scrubbers was now the BATNEEC and, if they were, to require their use (“Ground Two - The Sulphur Scrubbers Point”) (see paragraphs 89 to 96 below).

(c) acted unlawfully in making its decision without the objective of implementing material parts of the Waste Strategy 2000 document which required it to make the decision based on its assessment of whether burning these tyres in the kilns was the BPEO for those tyres (“Ground Three - The Waste Strategy 2000 issue”). It is this ground which the Agency contends that the claimant needs, but has not yet received, permission to pursue and I consider this ground in paragraphs 97 to 121 below.

[20]If the claimant is successful on any of these issues, there is an additional issue to be considered which is what is the appropriate relief to be granted (“the relief issue”) and which is discussed in paragraphs 122 to 132 below. The approach to the Decision Document

[21]Consideration of these issues will entail considering how the Agency performed its task and there are four significant points, which must be borne in mind when considering the Decision Document. First, although the wording of the Decision Document has been subjected to sustained and detailed scrutiny especially by Mr. Wolfe, it is important to bear in mind that it must not be construed as a statute but that it must be read fairly against the background that it was not necessary for the Decision Document to deal fully with every point raised. After I had reached that conclusion, I noted that Lord Clyde had explained recently in R. (on the application of Alconbury Developments Limited) v. Secretary of State for the Environment, Transport and the Regions

[2001] 2 WLR 1389

at [170] that:- “What is required is there should be a decision with reasons. Providing that those set out clearly the grounds on which the decision has been reached, it does not seem to me necessary that all the thinking which lies behind it should also be made available”.

[22]Second, in the same way as contractual provisions have to be construed in the light of their factual matrix, so must the Decision Document. Third, in order to determine if the Agency has applied BATNEEC and BPEO, it is the approach of the Agency as revealed in the reasoning of the Decision Document and not the precise wording used in it that is determinative. Lord Browne-Wilkinson (with whom the other members of the Appellate Committee agreed) has explained that:- “The courts should not intervene just because the reasons given, if strictly construed, may disclose an error of law. The jurisdiction to quash a decision only exists where there has in fact been an error of law” (R. v. Governors of the Bishop Challoner Roman Catholic Comprehensive Girls’ School ex parte Choudhury

[1992] 2AC 182

at 197 E with my emphasis added).

[23]Fourth, the concept of margin of appreciation is relevant as the courts accept that the Agency, like every other decision-maker, has a discretion about how it resolves environmental issues raised before it so that any consideration of its decision by the courts is a “review with built-in latitude”( Fordham - Judicial Review Handbook - Third Edition (2001) Page 222). In such cases, “[the courts] will intervene if the [appointed decision-maker] asks itself the wrong questions (that is, questions other than those which Parliament directed it to ask itself). But if it directs itself to the right inquiry, asking the right questions, they will not intervene merely because it has or may have come to the wrong answer, provided that is an answer that lies within its jurisdiction”( Ansiminic Corporation v. Foreign Compensation Commission

[1969] 2AC 147

,195 F per Lord Pearce). I will consider later in paragraphs 77 to 81 whether in this case there should be an enhanced margin of appreciation of the Agency’s decision on section 11 applications. Ground One - The Minimising BATNEEC ground The claimant’s submissions

[24]The thrust of the claimant’s complaint is that the Agency acted unlawfully by failing to ensure that the emissions of the prescribed substances were minimised by requiring the use of BATNEEC and, for example, by considering the use of sulphur scrubbers, “independently of considering whether such emissions were harmful (including to health) and/or complied with air quality standards”. I will defer particular consideration of the specific issue of whether the Agency should have required the use of sulphur scrubbers until I move on to the second issue, which relates specifically to them.

[25]Mr. Wolfe’s submissions on this issue, as I understand them, consist of a number of different strands. I propose to consider these submissions in stages by first examining his allegation that the Agency misunderstood the nature of its obligation to ensure that the emissions were minimised before turning to analyse the nature of the Agency’s obligation in respect of BATNEEC and then by determining if it has complied properly with these obligations. I will then consider first the specific margin of appreciation that this court should give to the Agency’s decision and second, the admissibility of Mr. Babb’s evidence contained in a witness statement made in the present proceedings, giving further reasons for the Agency’s decision. The understanding of the Agency on the obligation to minimise pollution and emission

[26]Mr. Wolfe for the claimant submits that the Agency overlooked its specific obligations to prevent or minimise release of substances , independently of whether such emissions were harmful (including to health) and/or complied with air quality standards to minimise the obligation, as I have already stated. This obligation clearly arose because section 4(2) of the 1990 Act provides, with emphasis added by me, that the functions of the Agency “shall be exercisable for the purpose of preventing or minimising pollution of the environment due to the release of substances into any environmental medium”. As I have explained, section 7(2)(a) of the 1990 Act specifically states that the authorisation shall include any conditions for the purpose of achieving, among other things, the objective of ensuring that the Best Available Techniques Not Entailing Excessive Costs will be used, with my emphasis added, “(i) for preventing the release of substances .. or where that is not practical by any such means, for reducing the release of such substances to a minimum and for rendering harmless any such substances which are released”.

[27]In support of his argument that the Agency did not follow or did not use the statutory directions, Mr. Wolfe attaches great importance to a passage in paragraph 2.2 of the Decision Document where the Agency explains with his emphasis added that, “the operator must use the most effective means to prevent, minimise or render harmless polluting releases”. Mr. Wolfe says that the Agency misunderstood the obligation imposed on it by using in that section the word “or” rather than as the statute had specifically provided the word “and” with the result that the Agency thereby ignored its separate, but significant, obligation to minimise polluting releases and instead it regarded it only as an alternative duty.

[28]Mr. Turner for the Agency does not dispute that this wording is incorrect, but he instead points out that this statement has to be considered in the context of the entire Decision Document in order to ascertain if the Agency actually misunderstood and actually misapplied the statutory scheme in resolving the June 2000 application. I agree and, as I have explained in paragraph 22 above, my task is to see if, in Lord Browne Wilkinson’s words with my emphasis added, “there has in fact been an error in law”. It therefore becomes necessary to study the Decision Document with care in order to ascertain if this error in paragraph 2.2 of the Decision Document was reflected in the reasoning and in the conclusions of the Decision Document.

[29]There are, according to Mr. Turner, numerous references in the Decision Document, which show a correct understanding by the Agency of its duties to minimise polluting releases. Mr. Tromans for Blue Circle agrees and he explains that the Decision Document comprises 166 pages, which were intended to be read as a whole so as to provide Blue Circle and the public, including, in particular the claimant, with a reasoned explanation of the decision-making process adopted by the Agency. He submits that when read fairly as a whole, the Decision Document contains numerous references, which demonstrate that the Agency properly understood its statutory obligations to minimise pollution and emission.

[30]By way of example, he points to four instances of the way in which the Agency recognised its obligation to consider the way of minimising pollution. First, it was explained by the Agency, with my emphasis added, in the “Key Issues Section” of the Decision Document dealing with the issue of health that:- “When determining a variation to an IPC authorisation, the Agency has an obligation under EPA 90 t o minimise pollution caused to the environment taken as a whole” (page 44 of the Decision Document).

[31]Second, the Agency explained that it had taken the need to minimise pollution into account when it stated, with my emphasis added, that: “The Agency is satisfied the proposed change of fuel demonstrates the best available technique not entailing excessive cost and also represents the best practicable environmental option that will minimise pollution of the environment take as a whole” (page 69 of the Decision Document).

[32]Third, the Agency in the Decision Document responds to a point raised at a public meeting to consider the proposal when it explains, with my emphasis added, that:- “The Agency must be satisfied that the objective of ensuring the best available techniques not entailing excessive cost will be used for minimising the pollution which may be caused to the environment taken as a whole has been met, in accordance with sections 7(4) and 7(7) of EPA90. If this objective is not met, then the Agency would refuse the application” (page 107 of the Decision Document).

[33]Fourth, the Agency sets out directly its response to the specific allegation that it had approached the application simply by seeking to ensure that air quality standards were met and that it had failed to exercise its powers to minimise pollution of the environment by explaining, with my emphasis added, that:- “The Agency’s approach has been thorough in the assessment of this application. Compliance with air quality standards and objectives is an important assessment criterion, but is only one of many criteria used” (page 146 of the Decision Document).

[34]The Agency has demonstrated by these comments a proper understanding of its duties and, in particular, that it had the separate obligation of ensuring that emissions were minimised well in mind. I have concluded that the passage on which Mr. Wolfe relies so strongly and which I have set out in paragraph 27 above is inconsistent with the way in which the Agency actually dealt with the matter. Thus I regard the use of the word “or” in paragraph 2.2 of the Decision Document as being merely a typographical error, which, when viewed in the context of the rest of the Decision Document, did not mean that the Agency was not aware of or more pertinently did not perform its separate duties relating to minimising pollution and emission. There are two other matters, which individually or cumulatively support that conclusion.

[35]First, the Agency’s Site Inspector, Mr. Colin Babb, who was concerned on behalf of the Agency with the assessment of the application to burn tyres on a continuous basis confirmed the correctness of the Agency’s approach to the assessment but significantly for this issue, he says that the use of the word “or” rather than “and” is “a stray typographical error” in the passage in paragraph 2.2 of the Decision Document on which Mr. Wolfe places so much reliance and to which I have referred in paragraph 27 above. Mr. Wolfe challenges the admissibility of this evidence on the ground that it is not possible to justify by explanatory statements in witness statements errors in a decision under challenge after the decision has been given. I do not agree because in limited circumstances, a party can adduce further evidence to explain a decision and, in particular, an error of this sort.

[36]As Hutchison LJ has explained with my emphasis added in a judgment, with which Nourse and Thorpe LJJ agreed, that the present position is that:- “The court can and, in inappropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should consistently with [some observations of Steyn LJ] be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity ”( R.v.Westminster City Council ex parte Ermakov

[1996] 2All ER 302

, 315E).

[37]This is precisely such a case as Mr. Babb’s witness statement demonstrates that the passage relied on by the claimant and referred to in paragraph 27 (“minimise or render harmless”) was inserted as “an error has been made in transcription” of paragraph 2.2 of the Decision Document and so it should be admitted. The fact this statement in paragraph 2.2 of the Decision Document was an error is also borne out by the other extracts from the Decision Document to which I have already referred in paragraphs 30 to 33 above and which set out the correct way in which the Agency understood and performed its obligations to consider minimising pollution.

[38]The second reason why I concluded that the Agency did actually understand and did consider properly its duty to minimise the emission of prescribed substances is that the Decision Document itself contained significant conditions, which I shall describe in paragraphs 69 to 71 below and which were inserted for environmental reasons specifically to minimise pollution. An example is the requirement for there to be “a minimum kiln back end oxygen level of 2 % to be met when tyres are burnt in the process” (Paragraph 6.2 of the Decision Document). As with the other examples of conditions imposed in the Decision Document to which I refer in paragraphs 69 to 71 below, this indicates that the Agency was conscious of and understood its obligation to minimise pollution. Thus, I am unable to accept the contention of Mr. Wolfe that the Agency misunderstood its obligation to consider how to minimise the emissions of the prescribed substances, as there is powerful evidence to show that the Agency clearly understood the need to minimise pollution. There is a separate issue of whether the Agency actually complied with its duty to which I will return later. BATNEEC - the nature of the Agency’ s role under section 7(1) of the 1990 Act - duties or discretions?

[39]At the outset of the hearing, I indicated that I considered that it would be helpful for me to hear submissions from counsel on what should be the appropriate degree of intensity of review of the decision of the Agency on BATNEEC; this question itself requires consideration of what duties or discretions were imposed on the Agency under section 7(1) of the 1990 Act . It is appropriate to deal with this matter before I consider how the Agency actually dealt with BATNEEC. Mr. Wolfe in his written skeleton argument submitted that the claimant “is entitled to insist that the Agency complied with its statutory duty to require the BATNEEC in order to minimise [emissions] regardless of health/air quality questions”. Mr. Wolfe described this duty as “a free-standing obligation” and he stressed that this obligation relates to “ requiring” BATNEEC.

[40]The Agency and Blue Circle disagree, especially with the submission that the Agency had an obligation to require BATNEEC. Mr. Turner contends that the duty of the Agency is, according to its written submissions, with my emphasis added, “to include in an authorisation such specific conditions as it considers appropriate for ensuring that in carrying on the regulated process, an operator will use BATNEEC”. In other words, he submits that Parliament has conferred a discretion on the Agency in its capacity as the regulator to decide what conditions are appropriate for granting a variation which it then had a duty to include in any authorisation. Mr. Tromans also submits that Parliament has given a discretion to the Agency to determine “what constitutes BATNEEC for the process and how that is to be translated into conditions”.

[41]All counsel agree that the answer to this issue is to be found in the interpretation of section 7(1)(a) of the 1990 Act and it is therefore convenient to quote it again in summary form at this stage. It states, with my emphasis added that:- “There shall be included in an authorisation [subject to provisions which do not apply in this case] such specific conditions as [the Agency] considers appropriate , when taken with the general condition [that Blue Circle must use BATNEEC for preventing releases of prescribed substances and rendering harmless substances which might cause harm if released into an environmental medium] for achieving [the specified objectives]”.

[42]Mr. Wolfe makes five submissions in support of his contention that the Agency has a free-standing obligation and they are derived from the wording of this section. First, he contends that the use of the words “there shall be included” in section 7(1)(a) of the 1990 Act indicate a mandatory obligation to include and that submission is, correctly in my view, not disputed but his remaining contentions on this issue are more controversial. Second, Mr. Wolfe argues that the words “such specific conditions as the [Agency] considers appropriate” in section 7(1)(a) of the 1990 Act confer a discretion as to the precise nature of the conditions but gives no discretion as to the need for them or what they must achieve. Third, he contends that the words “for achieving the objectives” in that sub-section are mandatory and he stresses that the noun “objectives” is in the plural. Fourth, Mr. Wolfe submits that it is significant that the actual words in section 7(2)(a) of the 1990 Act are, with his emphasis added, “ ensuring that BATNEEC will be used ” and he stresses that these are mandatory as to the outcome. Finally he points out that the words “for reducing the release of [prescribed substances] to a minimum” in sub-paragraph (i) of that section constitutes what he describes as “a free-standing objective”.

[43]It is noteworthy that the legislature has, in section 7(1)(a) of the 1990 Act , imposed a duty on the Agency to include such specific conditions in any authorisation as the Agency “ considers appropriate …. for achieving the objectives ”. These first two quoted words are of critical significance in demonstrating that the Agency has a discretion but the last four words show that the exercise of their discretion must relate to how to achieve the statutory objectives. The use of the word “objectives” in that provision is significant as it indicates what has to be regarded as material consideration being ends to be aimed for, but not necessarily achieved. Thus, objectives are not the same as “requirements”, which is what Mr. Wolfe claims that they should mean when he refers to the Agency’s statutory duty to require BATNEEC. There are some specific weaknesses of Mr. Wolfe’s contentions insofar as I understand it correctly and which I must now explain.

[44]First, to accept Mr. Wolfe’s submission that the Agency had a “statutory duty to require BATNEEC” would entail rewriting section 7 of the 1990 Act so that that section would expressly state that before granting an authorisation, there was a requirement for the adoption of a full BATNEEC or that the Agency had to be satisfied that BATNEEC had been achieved; this is very different from saying that BATNEEC was merely an objective as section 7 of the 1990 Act now states. Parliament could have decided that section 7 of the 1990 Act should be in that form but it chose not to follow that course and it instead gave the Agency the discretion of how to achieve the specified objectives as opposed to any requirement. The interpretation of the section must reflect that decision and the wording used.

[45]Second, as Mr. Wolfe implies by his second submission that an objective to use BATNEEC is substantially more than a goal but that approach ignores what Pill LJ, with whom the other members of the Court of Appeal agreed, considered in Thornby Farms Limited v. Daventry District Council (

[2002] EWCA 31

– Court of Appeal 22 January 2002) to be the purpose of the objectives when he explained after considering different views that [53]:- “An objective in my judgment is something different from a material consideration. It is an end to which to aim a goal. A material consideration is a factor to be taken into account when making a decision and the objective to be attained will such a consideration, but is more that that. An objective which is obligatory must always be kept in mind when making a decision even while the decision-maker has regard to other material considerations. Some decisions involve more progress towards achieving the objective than others. On occasions, the giving of weight to other considerations will mean that little or no progress is made. I accept that there could be decisions affecting waste disposal in which the weight given to other considerations may produce a result which involves so plain and flagrant a disregard for the objective that there is a breach of obligation. However, provided the objective is kept in mind, decisions in which the decisive consideration has not been the contribution they make to the achievement of the objective may still be lawful. I do not in any event favour an attempt to create a hierarchy of material considerations whereby the law would require decision makers to give different weight to different considerations”. Pill LJ later said [61] that:- “Neither does the discretion to specify conditions which the “enforcing authority considers appropriate” limit the obligation to achieve the objective when considering the issue in the present case. It confers a discretion to decide how most appropriately to achieve the objective but does not weaken the obligation to ensure that BATNEEC will be used”. This second comment has to be read in the context of the facts in this case. Where the Agency is dealing with “objectives” as in this case, then as Pill LJ had already explained in the passage set out earlier in this paragraph, the Agency has to keep objectives “in mind”. As I will explain in paragraph 108, Carnwath J (as he then was) has adopted a not dissimilar approach when he referred to BPEO as not being “the determinative issue” but “a material consideration to which the authority should have regard the weight to be given to it is a matter for them”. Significantly, he clearly considered “objectives” as being different from “requirements”.

[46]Third, Mr. Wolfe’s contentions are at variance with, what I respectfully consider, was the correct analysis of the section 7 of the 1990 Act as expressed by Harrison J. in R. v Environment Agency ex parte Leam [1999] Env.L.R.73 when he explained that:- “The real dispute on this first issue, it seems to me, relates to what the Agency has to do to fulfil the duty imposed upon it by section 7. That must be a matter of fact and degree in each case having regard to the particular circumstances of the case. In my view, it is not right to say that every time the Agency receives a section 11 application it has to carry out an exhaustive examination of all practical options and techniques relating to the process as a whole, regardless of the circumstances. Such a rigid rule would not only be unnecessarily burdensome on the Agency but it could also deter operators from bringing forward improvements by a section 11 application. Whilst there may be circumstances where such a full scale examination of the process as a whole may be warranted, in my judgment it was not necessary in the circumstances of this case” (page 85).

[47]The approach of Harrison J emphasises the flexibility of approach given to the Agency to achieve the objective. That approach, unlike the one suggested by Mr. Wolfe, correctly in my mind gives due weight to the true meaning of the word “objectives” in their context of the words “as it considers appropriate” in section 7(1) of the 1990 Act . I must now consider Mr. Wolfe’s submission that Leam’s case can no longer be considered as good law in the light of Thornby Farms. He, however, does not refer to any passages in the judgment in Thornby Farms to support this submission. It is significant that Mr. Wolfe, who also appeared for the unsuccessful claimant in that later case, apparently did not even specifically argue in Thornby Farms that Leam’s case was wrong or that it should be overruled. I therefore cannot accept Mr. Wolfe’s submission on this point especially as the Court of Appeal decision on this aspect in Thornby Farms only establishes that an enforcing authority may not rely on a Government-specified upper limit in deciding what is BATNEEC in a particular case in which there was evidence that lower emission levels could be achieved, but instead in that event, that authority must address itself as to what is the best available technique in a particular case. Incidentally, I should add that after I had reserved judgment in this case, I was told by Mr. Wolfe that the House of Lords had given the claimant in Thornby Farms provisional permission to appeal. I asked the parties if they wanted me to consider delaying giving judgment until after the House of Lords had given its decision. Counsel for the defendants responded and they asked me not to wait but to proceed to hand down judgment, which confirmed my own strongly held provisional view.

[48]The important distinction between these two decided cases is that in Thornby Farms, the pre-existing process was not applying BATNEEC and accordingly it had to be upgraded by replacing the old incinerator with a new one as appears from the first instance decision of Collins J in that case ([2001] Env LR 375 at p. 379). Thus, in that case, the question of what was BATNEEC therefore had to be addressed from scratch. In contrast, in Leam , as in the present case, the issue concerns partial substitution of fuel in relation to a process to which BATNEEC had already been properly applied. In this case as the Agency’s response to an inquiry at the second public meeting shows (Page 144 of the Decision Document), the Agency had previously regarded the mix of fuel in use at the time of Blue Circle’s application as being BATNEEC and BPEO and I did not understand Mr. Wolfe to challenge or impugn this finding. Indeed, I have no reason to doubt it.

[49]I conclude that the Agency was obliged to consider achieving the specific objectives not as a specific requirement that had to be achieved, but as ends to be aimed for; then it had to carry out a balancing exercise in deciding what conditions were appropriate, in the light of the conditions implied by section 7(4) of the 1990 Act for achieving the specified objectives in section 7(2) of the 1990 Act , which are not, as I have explained, specified requirements; the Agency then had a duty to include them in the authorisation for the application. The general condition implied by section 7(4) of the 1990 Act and referred to in section 7(1) of the 1990 Act , is, as I have explained, that a person carrying on a prescribed process must, among other things, use BATNEEC for the specified objectives. Compliance by the Agency with is obligations

[50]In determining if the Agency’s decision can be challenged for the reasons advocated by Mr. Wolfe, I must now mention the submission of Mr. Turner that in considering Mr. Wolfe’s contention, I must take into account the information contained in Mr. Babb’s witness statement, which explains why the Agency reached its decision under challenge in this case. Mr. Wolfe says that this material is inadmissible, as it consists of reasons that were given after the decision had been made. Mr. Turner and Mr. Tromans contend that in any event and irrespective of Mr. Babb’s evidence, Mr. Wolfe’s ground of challenge on this issue fails in the light of the contents of the Decision Document. Therefore, I propose to consider Mr. Wolfe’s submission on the basis solely of the reasoning in the Decision Document and then I will consider in paragraphs 82 to 87 if I can take into consideration Mr. Babb’s evidence and, if so, what effect it has. Scrutiny of the reasons given by the Agency in the Decision Document without recourse to Mr. Babb’s witness statement

[51]Mr. Wolfe contends that Decision Document is flawed as the Agency did not apply BATNEEC to minimise emissions and he contends that the Agency was not entitled to take the approach that it was involved in an on-going programme with the result that it could postpone BATNEEC because of an impending review. Mr. Turner and Mr. Tromans contend that the Agency complied with its obligations.

[52]Before considering these rival submissions, it is now appropriate to consider two of Mr. Wolfe’s submissions. First, he contended that sulphur dioxide levels might increase tenfold as a result of burning tyres. Paragraph 2.5.2 of the Decision Document states that while the likely increase is significant, it was not on the scale first thought. In the light of its other findings, the Agency was entitled to conclude as it did in paragraph 6.3 of the Decision Document that it should retain the existing limit for sulphur dioxide as a condition for granting the application of Blue Circle, which it was satisfied would provide acceptable protection in air quality terms whilst imposing the conditions to which I will refer in order to require BATNEEC. No criticism can be made of this decision of the Agency relating to the level of sulphur dioxide caused by burning tyres, but I will consider separately and subsequently what should have been done about sulphur scrubbers under Issue 2.

[53]The second submission of Mr. Wolfe that requires consideration at this stage is that the evidence before the Agency in this case has significant similarities with the evidence in Thornby Farms . Thus it is said that the decision under consideration on this application is open to the same criticisms as were made by the Court of Appeal of the decision of the regulator in Thornby Farms . This contention of Mr. Wolfe ignores a salient and very relevant difference between the two cases, which is that in Thornby Farms , a new type of incinerator was being installed, which could clearly be shown on the evidence to be capable of achieving lower emission levels than those imposed by the appropriate regulator, with the result that its decision was flawed. Such evidence of lower emission levels was not adduced on consideration of the June 2000 application by Blue Circle and so this case is different in this material respect from Thornby Farms . Thus, the Agency in this case did not have to adopt the same approach as was required of the regulator in Thornby Farms .

[54]I now turn to the Decision Document itself and, as I have already explained, it is necessary to consider it in the light of the factual matrix in which it was prepared. The Agency started its consideration of Blue Circle’s June 2000 application by recognising that the existing fuel mix represented BATNEEC (paragraph 2.7 of the Decision Document). Against that background, the Agency then compared the use of tyres as a fuel with the existing fuel mix. This entailed carrying out a wide variety of tests, which are described in the Decision Document. These tests established that “in respect of the impact on human health… there [was] a 25% reduction in the overall environmental quotient when the substitute fuel scenario [i.e. the tyres applied for by Blue Circle] is compared to baseline [i.e. the existing coal mix]” (Decision Document page 23). When the impact on vegetation was considered, the tests showed “there [was] a marginal (less than 10%) reduction in the quotient when tyres are compared to baseline [i.e. the existing coal mix]” (Decision Document page 23).

[55]Another significant aspect of the factual matrix against which the decision has to be considered is the statutory regime applicable to Blue Circle’s cement works and which is referred to in paragraph 3.1 of the Decision Document. Under section 6(6) of the 1990 Act , there is an obligation on the Agency to carry out a review of the conditions of authorisation “from time to time but not less frequently than once in every period of four years”. The last review of the Westbury works prior to the June 2000 application was completed in December 1998 (page 144 of the Decision Document) and it obviously started much earlier. No challenge has been made to the decisions of the Agency on the last review and, in particular, it is not suggested that BATNEEC was not then achieved. In addition, as I explained in paragraph 5, on 16 June 2000 the Agency had imposed exacting new emission limits.

[56]Thus, it would have been appreciated that a new full statutory review would have been required after the decision under challenge had been made. In any event in a response to an issue raised on consultation at page 144 of the Decision Document, the Agency explains that “the installation will have become subject to the PPC Regulations in 2001 ... with the opportunity of further review at that time”. The significance of this is that the Agency and all people reading the Decision Document knew first that the Agency’s decision on the application of BATNEEC and BPEO to the burning of tyres in the kilns would soon thereafter be subject to further review and second that the Agency’s decision on the June 2000 application was, and had been, part of a continuing process of appraisal. The Decision Document also refers in the variation notice to the status log of the history of authorisation for the Westbury works which shows that the variation under challenge of August 2001 was the eleventh variation since the original authorisation was made in October 1993. This shows that there was on-going scrutiny by the Agency of the environmental aspects of the operation of the Westbury works with the PPC Regulations then due to require a further review.

[57]I can now turn to the main contentions on this issue. Mr. Wolfe criticises the Agency for not carrying out a full up-to-date assessment to see if the proposed system was BATNEEC. Mr. Tromans contends that there is no basis to suggest that the Agency should have carried out such a full-scale examination in this case: indeed to have done so would probably have been administratively unreasonable. Mr. Turner says that there are passages in the Decision Document, which show that the Agency correctly compared the proposed improvement with the existing position in order to decide whether the variation sought by Blue Circle in its application would continue the proposed BATNEEC/BPEO position.

[58]He relies on a number of extracts from the Decision Document. First, while giving its response to consultation submissions, the Agency noted the submission that:- “The Agency says that it is satisfied that the proposed change represents the BATNEEC. However, key potential improvements, such a requirement for sulphur scrubbers, have not been properly considered. The proposed conditions do not thus ensure that the BATNEEC is being used” (Decision Document page 143). The Agency responded by stating that:

“The Agency has to determine what is BATNEEC in relation to each application and translate that into conditions to be included in the authorisation or variation. To achieve this, any application will be referenced against the available relevant guidance notes for the process. For this application, the primary guidance note is “IPC Guidance Note S2 3.01 Cement Manufacture, Lime Manufacture and Associated Processes”

. The determination of BATNEEC requires that a site specific approach be taken when considering the options available. When the site was first authorised under IPC the operation was considered to be operating using BATNEEC. The current application specifically deals with a proposed change of fuel. The Agency is required to determine the application, which does not extend to consideration of alternative or additional methods of sulphur dioxide removal” (Decision Document page 143).

[59]Second, in its response to English Nature on the consultation exercise, the Agency is recorded in the Decision Document as having stated that:- “Refer to key issues section 4.4. In addition: The proposal to use tyres as a substitute fuel results in a significant reduction in oxides of nitrogen. The variation includes controls to be imposed on the process operation which will ensure that the emissions of sulphur dioxide are at least as low as those experienced when conventional fuel is being burned. Techniques for reducing total and peak emissions of Oxides of Nitrogen, Sulphur Dioxide and total emission of combustion generated Carbon Dioxide are being investigated by Blue Circle as part of the continuing process of emissions reduction” (Decision Document page 91).

[60]Third, the Agency having stated that fuel complied with BATNEEC/BPEO, added, with my underlining added, that: “In summary, the Agency notes that at best there is a significant overall environmental benefit from the partial substitution of fuel with tyres and at worst there appears to be no overall benefit or detriment and is therefore satisfied that the requirements of BATNEEC/BPEO are satisfied in accordance with section 7 of the 1990 Act” (Decision Document page 24).

[61]Fourth, responses to the consultation included the following comment from The Air That We Breathe Group, which was then quoted in the Decision Document stating that:

“The Agency says it has “had regard to the BPEO”

. From comments at last week’s meeting it is clear that the Agency has done no more than consider whether tyre burning is the BPEO for fuelling the cement kiln. Moreover, it has done so by comparing emissions from coal with emissions from coal/tyre mix. It has thus not considered alternative, even less polluting, fuels. Accordingly, even within its own terms, the assessment has not considered the “Best PEO”. Moreover, the Agency has not, as it should have done, considered whether the BPEO for dealing with waste tyres is the BPEO for that waste stream. Alternatives such as recycling or pyrolysis are clearly preferable in BPEO terms. You state that you are satisfied that the proposed change represents the BATNEEC. What alternatives have you considered? In each case, what were the extra costs involved? On what basis did you consider those costs excessive? In particular, have you considered sulphur scrubbers and for each of those why has Blue Circle not been required, through conditions on the authorisation, to implement these techniques?” (Decision Document pages 143-144). To this the Agency responded by stating that:- “When originally granted on 29 October 1993 the authorised activity would have been BATNEEC/BPEO. Since then Blue Circle has implemented the improvement programme specified in the authorisation resulting in a continuing reduction in emissions from the process. Section 6(6) EOA 90 directs the Agency “from time to time but not less frequently that once in every period of four years” to carry out a review of the conditions of the authorisation. It was not considered appropriate to do so as part of this Variation. A review under section 6(6) of EPA 90 was completed in December 1998 and the installation will become subject to the requirements of the PPC regulations in 2001, with the opportunity for further review at that time. Bearing in mind the above, the Agency considers it reasonable to regard the existing situation prior to the application for a variation as being BATNEEC/BPEO. This being the case, it was only necessary to consider what was being proposed compared to the current position. The proposed use of tyres is a continuation of the BATNEEC/BPEO position” (Decision Document page 144).

[62]In support of their contentions that the Agency acted properly by using as its starting point the fact that the existing process was BATNEEC, Mr. Turner and Mr. Tromans both rely on the decision of Harrison J in R v. Environment Agency and Redland Aggregates, ex p. Leam [1999] Env LR 73 at 85, in which, as I have stated, he explained that “it was not right to say that every time the Agency receives a section 11 application, it has to carry out an exhaustive examination of all practicable options and techniques relating to the process as a whole, regardless of the circumstances”. He held that “such a rigid rule would not only be unnecessarily burdensome on the Agency but it could also deter operators from bringing forward improvements by a section 11 application”. Harrison J accepted that “there may be circumstances where a full scale examination of the process as a whole might be warranted” but he considered that “what the Agency has to do to fulfil the duty imposed on it by section 7 …. must be a matter of fact and degree in each case having regard to the particular circumstances of the case”.

[63]I have already explained in paragraph 47 above why I rejected Mr. Wolfe’s submission that Leam’s case has been overruled or was no longer good law and I have set out my reasons in paragraphs 48 and 53 why I consider that Thornby Farms was decided in the light of the special facts that prevailed in that case. I respectfully agree with the approach of Harrison J as there are obviously instances where a full-scale examination of all practicable options and techniques can be avoided. Perhaps, one such instance might be, as in Leam’s case, where immediately after the statutory four year review had been completed to the satisfaction of the Agency, an application is then made to introduce a change in the process to take advantage of a recently devised and more environmentally friendly process. The Agency in that case would be entitled to consider and approve this change without embarking on a new full BATNEEC process if it was satisfied that the proposed process constituted an improvement in environmental terms and that there were no other relevant circumstances to take into consideration.

[64]Applying the principles in those cases, and in particular those from Leam’s case to the present case, it is submitted by Mr. Tromans first that the Agency was not obliged in considering the application for variation to embark on a complete re-examination of whether the conventional fuel mix used by Blue Circle at the Westbury works at the time of the application represented BATNEEC. He then contended that the existing techniques employed and the emission levels then achieved with the fuel mix used at Blue Circle at the time of the June 2000 application could be properly taken as representing BATNEEC in the light of the recent review. Indeed, it has not been suggested by Mr. Wolfe that this was not so. Mr. Tromans then argues that the Agency was, however, required to consider whether the proposed change in fuel mix by the use of tyres was itself a better technique for reducing emissions than by using the existing fuel.

[65]Mr. Tromans proceeds to submit that having concluded that the proposed change to tyres would represent BATNEEC, the Agency should then have considered whether, in relation to that change , there were any specific techniques that would represent BATNEEC so as to achieve further reductions in emissions. He accepted that if there was any information that came to light in relation to the application to use tyres that suggested that the existing or proposed operations or emission levels did not in fact represent BATNEEC, then the Agency would be required to carry out further inquiries into that issue so as to determine whether it would be appropriate to make any appropriate modifications to the conditions.

[66]I agree with those submissions of Mr. Tromans insofar as they mean that the Agency would have been entitled to reach this conclusion on the basis that it was one of the approaches that the Agency would have been entitled to adopt in the exercise of the discretion conferred on to it by section 7 of the 1990 Act . In other words, the Agency could properly have exercised its discretion to proceed on a number of bases because, as I have explained in paragraph 23 above, it had a margin of appreciation. I have been unable to discern from the statutory regime anything to suggest that this is not the case. As I have explained, it is not suggested that the statutory review completed in December 1998 failed to apply BATNEEC or that BATNEEC was not then achieved. I am fortified in reaching the conclusion that the Agency was entitled to adopt the approach suggested by Mr. Tromans by Harrison J’s actual decision in Leam on the specific facts of that case, when, with my emphasis added, he stated that:- “the Agency was entitled to treat the existing situation at both plants resulting from the 1993 authorisations [which had been given after “thorough environmental assessments”] together with the ongoing improvement programmes as being BATNEEC/BPEO and, in the absence of an obviously better alternative, it was entitled to treat the proposed improvements by the use of [the process for which the application was being made] as part of the ongoing improvement programme and as a continuation of the BATNEEC/BPEO position” (page 85).

[67]I appreciate that Mr. Wolfe considers that in Blue Circle’s case, there was a better alternative available in the form of sulphur scrubbers and I will consider this point when I move on to consider Issue 2. The significance and relevance of this passage in Harrison J’s judgment is that it indicates correctly that the Agency is entitled to approach an application under section 11 on the basis that, as the existing process which had very recently been authorised was BATNEEC/BPEO, it could then proceed immediately to focus on whether the proposed new procedure was an improvement in environmental terms and whether in relation to that new procedure there were any specific techniques that would represent BATNEEC. I agree, especially as the Agency had found that the proposal in the June 2000 application meant that if it was implemented, there would then be an improvement in the environment. In addition on 20 June 2000, the Agency had set very exacting emission limits and these would have been in force when the June 2000 application was being considered. I also cannot accept the contentions of Mr. Wolfe that the Agency failed to consider whether further abatement techniques should have been required a part of the authorisation process, but instead left this matter to the goodwill of Blue Circle. The next task is to consider if the Agency did in practice comply with that approach.

[68]Mr. Tromans submits that, on examination, the Agency’s decision and its actual approach accords with those principles. He points to paragraph 2.7 of the Decision Document, which states that the Agency was satisfied that the releases were as low as reasonably practicable with the traditional fuel mix, abatement technology and plant operation and that this represented BATNEEC before the application of Blue Circle was lodged. He contends correctly that the Agency carried out a careful exercise of comparing levels of emissions of the most significant pollutants from the traditional fuel mix with the proposed new tyre mix. It concluded, at paragraph 2.7, of the Decision Document that, at best, there was a significant overall benefit from the proposed partial fuel change and at worst, there was no overall benefit or detriment and that “the current releases to the environment from the plant are considered to be as low as reasonably practicable with the traditional fuel mix, abatement technology and plant operation and the Agency is satisfied that this represented BATNEEC” (page 22 of Decision Document). I agree that the Agency was entitled to conclude as it did that the use of the changed fuel mix would represent the use of BATNEEC in terms of fuel used.

[69]In any event, the Agency gave consideration to what techniques should be applied to the partial use of tyres as a fuel in order to comply with the BATNEEC objective by imposing conditions in the Decision Document as four separate matters individually or cumulatively indicate. First, during the trials carried out after Blue Circle had made its application, the importance of a minimum back end oxygen level was correctly recognised by the Agency as a means of ensuring the control of sulphur dioxide emissions. This factor led to Condition 1.16 of the Variation Notice, which provided that, “The minimum kiln back end oxygen level shall be 2% when tyres are being burned”. The significance of the minimum back end oxygen levels in reducing sulphur dioxide emissions is clear and substantial as appears from the evidence of Blue Circle’s expert on kiln emissions, Mr. Graham Worthington and which was not disputed. He also explains that process controls of this type are regarded by the European Commission as primary examples of Best Available Techniques within the cement industry. A second example of requiring BATNEEC in relation to the use of tyres as fuel is the requirement set out in Condition 1.9 of the Variation Notice, which provided that “Tyres shall not be added to Kiln 1 until the permanent storage and automated handling facilities for tyres are commissioned”. Mr. Worthington has explained that this Variation involved a significant reduction in the maximum permitted emission limits for oxides of nitrogen, which was the pollutant of main concern.

[70]Third, Part 1 of the Variation Notice sets out a requirement for ensuring that releases into the air of oxides of nitrogen, sulphur dioxide, carbon monoxide, particulates and dioxins would only be permitted from certain release points and even then, they were only permitted if the releases fell within certain specified limits. This condition was fortified by an additional requirement in Part 1 of the Variation Notice, that compelled Blue Circle to keep records and to notify the Agency of any release which, inter alia, exceeded the relevant limits. The Agency was entitled to impose conditions considered by it to be appropriate to achieve the BATNEEC objective and by this condition, it set numerical emission limits, which were in furtherance of that aim.

[71]Fourth, other appropriate conditions for reducing emissions were imposed by the Agency as a condition of granting the application of Blue Circle. There were, for example, continuing obligations imposed on Blue Circle contained in the Variation Notice and aimed at reducing emissions. Thus, by Part 8 of the Variation Notice, for example, Blue Circle was obliged as a condition of obtaining the relevant approval to prepare a strategy to monitor ambient air quality in the vicinity of the works and to submit the results of this as well as its commissioning plans to the Agency. These conditions fortified my opinion that the decision of the Agency cannot be impugned on account of any of the matters raised in Issue 1.

[72]It is now convenient to mention two further points. First, Mr. Wolfe also contends that there is, in his words, “no statutory legitimacy” for the approach of the Agency as it was obliged to consider BATNEEC when it was considering Blue Circle’s application and not merely to do so on the next review. As I have explained, I consider that the Agency was not obliged to commence a full BATNEEC in every case in which it had to consider a section 11 application but, as I have already explained, the Agency is entitled, in Harrison J’s words to have “regard to the particular circumstances of the case” and that is what it did in a way that cannot now give rise to a public law challenge.

[73]Second, the claim form contained an allegation that the Agency had failed to set appropriately tight emission limits, but this claim has not been pursued; so it can be inferred that the claimant, who together with “The Air That We Breathe” Group had investigated the Agency’s decision with meticulous care and with the benefit of learned academic support now accepts albeit impliedly that the Agency cannot be challenged for setting emission limits, which did not accord with BATNEEC. Indeed, the only basis for contending that BATNEEC was not achieved is apparently the sulphur scrubber issue. As I will explain when I consider Issue 2, this claim fails on public law grounds and thus there are no other specific allegations of the fact that BATNEEC was not applied. So even if the Agency had failed in fulfilling its BATNEEC obligations, this fact is not of decisive or any relevance because even if BATNEEC had been applied in the way contended by the claimant, there were no reasons why Blue Circle’s June 2000 application could have been granted. In other words, a requirement on the part of the Agency to reach BATNEEC would not even on the claimant’s case have required the Agency to reach a different decision on Blue Circle’s application. Thus, in any event and apart from the other reasons that I have stated, this claim would also have to fail on that basis.

[74]Thus, the Agency considered what techniques should then be applied to the partial use of tyres as a fuel in order to comply with the BATNEEC objective. In the light of the evidence before it, I consider that the Agency was entitled to approach BATNEEC in the way that it did and also to reach the decisions that it did on all matters, save that I have not considered the need for sulphur scrubbers to which I will return specifically when considering Issue 2. There are no public law grounds for impugning the Decision Document for the reasons suggested in Issue 1. Additional Grounds for rejecting the claimant’ submission on Issue 1

[75]If I had been in any doubt about this conclusion, there are two additional reasons, which would have led me to the same conclusion that the claimant’s submissions have to be rejected because the Agency was entitled to reach the decision that it did. First, I have assumed until now that the Agency should be given the conventional margin of appreciation when reaching its decision on Blue Circle’s application but, as I will explain, the margin of appreciation applicable to the decision of the Agency on this particular application under section 11 of the 1990 Act is substantially greater than this conventional margin, especially where, as in the present case, no human rights issue is now involved. Second, I consider that I can and should take into account in reaching my decision on the Decision Document the material in the witness statement of Mr. Babb and that this would have provided additional justification for the Agency’s decision. I will now explain these two conclusions. Additional Grounds for supporting the Agency’s decision - (i) the enhanced margin of appreciation due to the Agency when considering the Decision Document

[76]Mr. Tromans supported by Mr. Turner submitted that that substantial judicial restraint and deference is required in considering the decision of the Agency on Blue Circle’s application especially as no human rights claim is being pursued. First, he points out that Parliament has entrusted the Agency with the task of determining applications like those of Blue Circle and so he submits that, provided that the Agency has considered the right question, there should only be limited judicial scrutiny of the decision made by the Agency. His next submission was that as BATNEEC is pre-eminently a question of scientific fact and judgment, and that the consideration of the claimant’s complaints requires an enhanced degree of judicial restraint and a greater margin of appreciation especially as the subject matter of the discretion is within the particular expertise of the Agency.

[77]The margin of appreciation for a decision-maker can be wide or narrow and I agree with Mr. Tromans that in this case, it is substantially wider than the average or conventional margin for two different but overlapping reasons. First, when producing the Decision Document, the Agency was performing a function, which Parliament had entrusted to it as being within its particular expertise and as Sir Thomas Bingham MR (as he then was) explained “it is not for the court to second-guess the judgment of a specialised tribunal” ( R v. Parole Board ex parte Watson

[1966] 1WLR 906

, 917C). Having read the Decision Document on a number of occasions, I consider that the Agency is one of the more specialised bodies, which when considering the June 2000 application had to use very sophisticated specialised scientific and environmental knowledge and expertise. The application of BATNEEC and BPEO requires a very high degree of technological and environmental knowledge that would only be possessed by relatively few people. In this case for example, it is clear that the task of appraising the June 2000 application and considering the representations made by interested parties was demanding.

[78]The present approach to bodies like the Agency was described by Brooke J (as he then was) when he said, with my emphasis added in R. v Social Fund Inspector ex parte Ali (1994) 6 Admin LR 205,210E that:- “Decision after decision in the House of Lords over the last fifteen years had made it clear that when Parliament entrusts an expert body of people, whether they be tribunals or civil servants, or, as here, a combination of civil servants and independent inspectors, with the task of fulfilling the intentions of Parliament in a specialist sphere, the courts should be very slow to interfere” .

[79]In this case, the Agency was entrusted by the Parliament with the task of determining applications for variations under the 1990 Act . The Agency’s functions are “exercisable for the purpose of preventing or minimising pollution of the environment, due to the release of substances into any environmental medium” (Environmental Protection Act 1990 s4(2)) . This work required the Agency to use its specialist and technical expertise to evaluate the applications, to appraise complex scientific and commercial material and then to produce a reasoned decision document setting out its conclusions. As Lord Templeman explained in R v. Inland Revenue Commissioners ex parte Preston

[1985] AC 835

, at pages 864E-F said that:- “the court cannot in the absence of exceptional circumstances decide to be unfair that which the commissioners by taking action against the tax-payer have determined to be fair. The commissioners possess unique knowledge of fiscal practices and policy”. The comment is apposite to the difficult task that confronted the Agency, who had unique knowledge of the technical and environmental material that had to be appraised in reaching its decision on the June 2000 application.

[80]Second, as De Smith, Woolf and Jowell have explained with my emphasis added in Judicial Review of Administrative Actions (5 th Edition) at paragraph 13-015 that when reviewing a decision, the courts are “careful not readily to interfere with the balancing of considerations which are relevant to the power that is exercised by the authority”. As I have explained in paragraph 43 above, the Agency was required to carry out a balancing operation in evaluating Blue Circle’s application and so these words are relevant and apposite.

[81]These two factors individually as well as cumulatively satisfy me that the margin of appreciation allowed in this case is substantially greater than that which should be accorded in the average case. Until now, I have been considering the criticisms of the Decision Document on the assumption that an average margin of appreciation is applicable but, as I have just explained, this approach does not produce a just result for the Agency. So if I had been in any doubt about this first issue, this finding on the greater margin of appreciation would have fortified the conclusion that the claimant cannot succeed on the first issue. Additional ground for supporting the Agency’s decision (ii) Mr. Babb’s witness statement

[82]There is a dispute between the parties as to whether the Agency can rely on evidence from Mr. Babb contained in the witness statement made by him after the present proceedings were started in order to refute the arguments of the claimant about the approach of the Agency to BATNEEC. Mr. Wolfe says that the Agency should not be allowed to do so and he relies on Hutchison LJ’s comments in the Westminster case that I have already quoted in paragraph 36 above. More recently, in R (Nash) v. Chelsea College of Art

[2001] EWHC Admin 538

, Stanley Burnton J considered these comments and the circumstances in which late reasons for earlier decisions can be accepted by the court and he said [34] that the approach to such reasons should be that:-(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Laws J put it in Northamptonshire County Council ex p D ) “the adequacy of the reasons is itself made a condition of the legality of the decision”, only in exceptional circumstances if at all will the court accept subsequent evidence of the reasons.

(ii) In other cases, the court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap: (a) Whether the new reasons are consistent with the original reasons. (b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee. (c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal’s decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b). (d) The delay before the later reasons were put forward. (e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly. To these I add two further considerations. The first is based on general principles of administrative law. The degree of scrutiny and caution to be applied by the court to subsequent reasons should depend on the subject matter of the administrative decision in question. Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the court may be less demanding and readier to accept subsequent reasons. Secondly, the court should bear in mind the qualifications and experience of the persons involved. It is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members”.

[83]Mr. Turner replies by contending that any information given by Mr. Babb concerning the reasoning process of the Agency in reaching its decision on BATNEEC was merely elucidation of their reasons; thus he submits that is admissible. Even after approaching Mr. Babb’s evidence with caution as it emerged after proceedings were started. I consider that Mr. Turner is right because there is much material in the Decision Document about the reasoning process undertaken by the Agency and Mr. Babb’s evidence elaborates on this. Mr. Babb’s evidence is consistent with the original reasons in the Decision Document and in all the circumstances, it should be admitted.

[84]After I had reached that conclusion, a relevant judicial comment came to my attention, which support this view.

[85]In S v. Special Educational Needs Tribunal and another

[1995] 1 WLR 1627

, Latham J, as he then was, explained that (1637B-D):- “The Court has an inherent jurisdiction to receive [affidavit] evidence so as to understand the true nature of the decision-making process. But … the Court will be alert to ensure that the affidavit is genuinely directed to telling the Court what happened at the time the decision was taken and not merely to giving the Court an ex post facto rationalisation, which could not be admissible. There may well be circumstances in which the failure to give adequate reasons will have cost consequences it if is only by virtue of the subsequent affidavit that the decision can be justified and indeed there may be cases where the failure to give adequate reasons is of such a nature that it would be wrong to permit those reasons to be supplemented”.

[86]In any event even if that approach is wrong, there is another reason connected with the relief actually in issue in this case, which shows that I should admit and consider Mr. Babb’s evidence. As I will explain in paragraphs 122 to 124 below, this is not a case in which the claimant, even if successful on Issues 1, 2 or 3, has any real prospect of obtaining a quashing order and Mr. Wolfe realistically did not press for such an order. Thus, the real dispute before me is whether the claimant is entitled to declarations. It is noteworthy that an important issue in determining whether declaratory relief should be granted is whether in this case the Agency would now or will in the future apply the wrong test in considering the use of tyres at the cement works; that entails examining the present and future stance of the Agency and of its appropriate officer, Mr. Babb. Therefore, the judicial warnings about admitting post-decision evidence to justify a decision under challenge in quashing cases are not relevant to determining a claim for declaration, which is the only effective live issue on remedies in this case.

[87]In other words, there is a fundamental difference in the approach of the court when considering, on the one hand, situations in which it is deciding whether to quash an existing decision because the reasoning in it is flawed and, on the other hand, cases where it is deciding whether to grant a declaration relating to present or future rights of the parties, where the court is looking at the situation when the matter is before the court in order to ascertain the nature of the dispute at that time between the parties. So when considering whether to quash a decision, the court is looking backwards in time to examine the decision-making process, while in the case of declarations in a case such as the present one, it is looking at the present position and looking forward to ascertain what is still in dispute between the parties. In declaration cases, the courts need not be troubled by the reasons why in quashing cases the courts are reluctant to admit reasons in witness statements to justify reasons in decisions, namely that there is a doubt that that the decision-maker may have become influenced by hindsight to reconsider matters after the event.

[88]For each or both of those reasons, I can consider the contents of Mr. Babb’s witness statement. This explains effectively and clearly that an investigation into whether BATNEEC has been used at the cement works had been completed just before the June 2000 application was made and so the Agency concluded that a further BATNEEC investigation could not be justified when considering Blue Circle’s June 2000 application. This evidence provides yet further additional material to justify dismissing the first ground, which as I have already previously explained, must fail. Ground Two - The Sulphur Scrubbers Point The claimant’s submissions

[89]The claimant complains that the Agency acted unlawfully by “failing to consider whether in the light of economic advantages of the change of fuel from coal to waste tyres, the use of sulphur scrubbers had become the BATNEEC and, if they were, the BATNEEC to require their use”. In support, Mr. Wolfe relies on a comment included in the four year review carried out of the Westbury works of Blue Circle in December 1998, which, with my emphasis added, states that:- “Wet and dry lime techniques can be used to desulphurise the kiln exhaust gases prior to the EP’s. However, such techniques are unlikely to be considered BATNEEC for the Westbury kilns based on costings detailed in the S2 guidance note. This may change if the current tyre burning trial is successfully concluded. The potential fuel cost savings could be used to justify additional abatement . This approach may become mandatory if a draft EC Directive on non-hazardous waste incineration is implemented. The draft Directive proposes fixed emission limits for all plants burning non-hazardous waste”.

[90]It is submitted by the claimant that in the course of the previous review, the Agency had recognised that sulphur scrubbing might be BATNEEC, should the economics of the process change in the light of the partial change of fuel to tyres. Thus it is said that it became necessary for the Agency to reconsider the issue of requiring sulphur scrubbers as part of the process of considering Blue Circle’s June 2000 application. Mr. Wolfe points out that the tyre burning trial finished on 10 th November 1999 while the Decision Document dealing with the variation was published in August 2001.

[91]It is stressed that the Decision Document does not refer to sulphur scrubbers but they were mentioned on two occasions in responses to queries raised in the consultation. First, in answer to a query from English Nature that there should be consideration of “abatement technologies such as Flue Gas Desulphurisation, which may provide greater environmental protection”, the Agency responded by saying that “techniques for reducing total and peak emissions of Oxides of Nitrogen, Sulphur Dioxide and total emission of combustion generated Carbon Dioxide are being investigated by Blue Circle as part of the continuing process of emissions reduction” (Decision Document page 91).

[92]Second, following the second public meeting and discussion surgeries, it was suggested to the Agency that “sulphur scrubbers have not been properly considered” and that “the proposed conditions do not thus ensure that BATNEEC is being used”. The Agency responded by explaining that the application of Blue Circle specifically deals with a proposed change of fuel and that the Agency was required to determine the application, which did not extend to alternative or additional methods of sulphur dioxide removal (Decision Document page 143). Mr. Wolfe contends that the inference to be drawn from this was that the Agency acted unlawfully by failing to require sulphur scrubbers as a condition of granting the variation. Discussion

[93]In response, the Agency relies first on the fact that the existing limit for sulphur dioxide emissions was retained, as I have explained in paragraph 52 above, but that in itself does not show that BATNEEC has been achieved. Second, the Agency contends that I should consider some parts of the witness statement of Mr. Babb. In spite of Mr. Wolfe’s objections, I consider that this evidence is admissible because, as I have explained in paragraphs 86 and 87 above, the only effective live remedy available to the claimant on this application is a claim for a declaration and so there is no obstacle to the Agency relying on this evidence of Mr. Babb relating to what the Agency considered. In case I am wrong and that quashing this decision is a live issue, it is then necessary to consider Mr. Babb’s evidence on this issue with caution, as Stanley Burnton J explained in the passage quoted in paragraph 82 above, but it is noteworthy that the reason given by Mr. Babb for not requiring sulphur scrubbers has a strong ring of truth about it, especially in the light of the earlier statement made in the last four year review and which I quoted in paragraph 87. Mr. Babb’s evidence is also consistent with the original reasons and I need not be inhibited from admitting it because the claim does not relate to any human rights issues. I would therefore have admitted it but, in any event, even if the claimant succeeded on Issue 2, little point would be gained from quashing the decision and then requiring the Agency to consider it, as the undisputed evidence of Mr. Babb contained in his witness statement would inevitably have led to a decision by the Agency on reconsidering the matter that the sulphur scrubbers were not yet BATNEEC. Thus, if, which is not the case, I had been in doubt about admitting it, I would have admitted it because in the circumstances of this case, a valid approach is that, “looking at [this sort of reason put forward by Mr. Babb] is often a sensible course and saves the bother and expense of going back to the decision-maker to make a new decision, which will incorporate the material which appears in the [witness statement]”(per Schiemann LJ in R v. Brent London Borough Council ex parte Baruwa

(1997) 29 HLR 915

, 929).

[94]The witness statement of Colin Babb on behalf of the Agency states that it was considered that sulphur scrubbers were likely to be excessively costly to install. Blue Circle’s evidence was that the scrubbers would cost about £5-6 million per kiln and that they would have had little effect on the ambient levels of sulphur dioxide. Nevertheless, prior to establishing the amount of any cost saving from the use of tyres, the Agency took the view that fitting sulphur scrubbers would entail “excessive cost”. That, of course, is a highly relevant, if not a decisive, factor in applying BATNEEC or more particularly the last four letters of it, which stand for “not entailing excessive cost”. I have no reason not to accept this account as being accurate especially as the claimant has not contradicted it; it provides an answer to this complaint of the claimant especially as it is noteworthy that the Decision Document did contain, as I have explained in paragraph 69 above when considering Issue 1, specific conditions for granting permission to Blue Circle, which would have minimised the emission of sulphur.

[95]In other words, the decision on sulphur scrubbers was one that the Agency was entitled to reach and there are no grounds for interfering with it. In any event, as I have explained, a further review was due soon after the Decision Document was published and at that time, the Agency said in the Decision Document (page 91) that techniques for reducing sulphur dioxide emissions were being investigated by Blue Circle “as part of the continuing process of emissions reduction”. This is significant as in his witness statement of March 2002, Mr. Babb said that the Agency was again evaluating the scope for environmental improvement in the context of Blue Circle’s application for a PPC permit on that occasion, the Agency could and would consider the requirement for sulphur scrubbers in the light of the costs that would have been saved because of the use of tyres in the kilns.

[96]In any event, Mr. Babb explained that the process of assessing whether sulphur scrubbers should be included was part of the ongoing and dynamic process of considering environmental matters with Blue Circle. Mr. Babb explains that the approach of the Agency was not as the claimant had suggested simply to leave matters to “the goodwill of the operator”, but it constituted a decision to continue the established way in which the Agency had achieved environmental improvements over time by a structured dialogue with the operator in order to evaluate what was reasonably practicable. The Agency was entitled to reach that decision. This further satisfies me that the decision of the Agency cannot be impugned on this ground. In any event, if I had been in doubt on any of my reasons for rejecting the claimant’s case on this issue, I would not have interfered with the decision because of the very wide margin of appreciation that should be accorded to the Agency for the reasons set out in paragraphs 77 to 81 above and that constitutes an additional ground for rejecting this claim. Ground Three – The Waste Strategy 2000 Issue

[97]The basis of this complaint by the claimant is first, that the Agency was required to consider whether burning the particular tyres in question at the Westbury works was the Best Practical Environmental Option (“BPEO”) for disposing of those particular tyres, second that the Agency could then only authorise the variation which permitted that activity if it was satisfied that it was BPEO for the tyres and third that the Agency failed to consider whether this was the BPEO for the tyres in the light of Waste Strategy 2000 . So this complaint focuses not on emissions from the cement works, but on the use to which the tyres would be put.

[98]Mr. Turner contends that this is a new ground of challenge, which was not raised in the Claim Form and thus permission had not been granted to pursue it. Because this third ground was only formulated hours before the hearing in front of me started, I raised the question of whether the Agency might be prejudiced because if this ground of challenge had been formulated when the claim was originally lodged, the Agency might then have wished to adduce further evidence to deal with this allegation. Mr. Turner stated that the Agency was actually able to deal with this third issue without the need for an adjournment. I propose to consider the merits of this third claim and then to return to consider how to deal with Mr. Turner’s contention that the claimant needs leave in order to pursue this third issue but that he should not be given it. The statutory background to this challenge

[99]By paragraph 2 of Schedule 4 to the Waste Management Licensing Regulations 1994 (“the 1994 Regulations”), certain specified “competent authorities” are required to discharge certain “specific functions” insofar as they relate to the “recovery or disposal of waste” with what are described in that paragraph as being the “relevant objectives”, which is a term that I will have to consider later. The Agency is one of the specified “competent authorities” when carrying out its functions under Part I of the 1990 Act and the use of waste tyres as a fuel is a form of “recovery” of waste, to which the 1994 Regulations apply. Thus, the Agency had to consider the 1994 Regulations when determining Blue Circle’s application and so this issue is concerned with what are the “relevant objectives”.

[100]By paragraph 4(1)(b) of Schedule 4 to the 1994 Regulations , “relevant objectives” of the Agency include “implementing, so far as material, any plan made under the plan-making provisions”. Section 44A of the 1990 Act is a “plan-making provision” and the document entitled Waste Strategy 2000 is a plan made pursuant to that provision. It is described as “a waste management plan for England and Wales” and “a strategy for dealing with waste diverted from landfill in England and Wales” (Volume 1, paragraph 5.1).

[101]Thus, Mr. Wolfe contends that this document Waste Strategy 2000 obliges the Agency in carrying out its IPC functions to identify the Best Practicable Environmental Option for dealing with the particular tyres that Blue Circle wished to use as fuel at its cement works. The claimant relies on a number of provisions in the Waste Strategy 2000 as showing the nature of the Agency’s obligations and examples of these are set out in the Appendix to this judgment. The claimant’s submissions

[102]Mr. Wolfe contends that the Decision Document shows that the Agency did not comply with its obligation as, in the words of his written skeleton argument, it “wholly fail[ed] to appraise the options to identify the best, let alone the best options for the particular tyres to be burnt at this plot (by reference, for example to where in the country they come from)”. He submits that as the Agency has not considered these matters, it had unlawfully failed in its obligations to consider whether burning these tyres in the kiln at the Westbury works was the BPEO for the particular tyres involved. The need to consider Waste Strategy 2000

[103]Mr. Turner and Mr. Tromans contend that the Agency was required to have in mind the objectives set out in Waste Strategy 2000 and that the Agency did comply with those objectives so that its decision cannot be impugned for that reason.

[104]They explain that the statutory duty imposed upon the Agency in section 7(7) of the 1990 Act is, with my emphasis added, to have regard to the “best practicable environmental option available as respects the substances which may be released ”. Thus, it is said that there is no duty under that provision on the Agency to investigate different uses for waste tyres. In support of this contention, reliance is placed upon the comment of Carnwath J (as he then was) in R v. Bolton MBC ex parte Kirkman [1998] Env. L.R. 560 where he explained (page 580), with my emphasis added, that:- “Section 7 (7)(b) is directed to ensuring BPEO for the releases from the approved process. It is not concerned with whether the process itself represents BPEO for the incoming waste”.

[105]Mr. Turner for the Agency proceeds to submit that Waste Strategy 2000 does not have to be considered by the Agency because the wording of paragraph 4(1)(b) of the 1994 Regulations specifies the relevant objectives in relation to the disposal of waste as being for “implementing, so far as material, any plan made under the plan-making provisions”. He contends that the Waste Strategy 2000 provisions relied on by the claimant are not “material” and therefore they did not need to be considered by the Agency when appraising Blue Circle’s June 2000 application.

[106]In support of this contention, Mr. Turner submits that the statements relied upon by the claimant in the Waste Strategy 2000 document are carefully extracted snippets, which do not impose any clear duties. He also contends that some of the points in the Waste Strategy 2000 document might be in conflict with section 7 of the 1990 Act . He gives as an example the possibility that tyres might be the BPEO for the kilns under Section 7 of the 1990 Act as they cause less pollution than coal but by applying Waste Strategy 2000 document, but the contrary result might arise on the assessment based on Waste Strategy 2000 . Thus he said there could be a conflict between the two provisions and this indicates that the Waste Strategy 2000 could not be material, or if it was, it should be overridden by the provisions in the 1990 Act .

[107]Mr. Tromans for Blue Circle also disputes the contention that Waste Strategy 2000 is relevant and he explains that the role of the Agency, as specified in that document, was “to ensure that waste management activities do not cause pollution of the environment or harm to human health” ( Waste Strategy 2000 – Volume 1 paragraphs 4.21). He contrasts this duty with that imposed on the Waste Planning Authorities and Waste Collection Disposal Authorities, which are entrusted with the task of maximising recycling and establishing the BPEO for particular waste streams ( Waste Strategy 2000 – Volume 1 paragraphs 4.3 – 4.15).

[108]It is also pointed out by Mr. Tromans that in the section of Waste Strategy 2000 dealing with the decision-making framework (Chapter 3), it is explained that “when taking waste management decisions on suitable treatment option sites and installations, local authorities must follow this framework set out below” (paragraph 3.2). Mr. Tromans contends that this obligation of which a fundamental part is determining the BPEO is vested in local authorities and not in the Environment Agency. In the Kirkman case (supra), Carnwath J (as he then was) at page 578 said of the BPEO policy in the predecessor document to Waste Strategy 2000 that:- “There is no difficulty in holding that in appropriate cases BPEO is an objective to which planning authorities should have regard as a material consideration. There is, however, no statutory duty imposed on the planning authority to treat it as the determinative issue or the “correct question” if that is meant to suggest that in every case the authority is required, as a first step, to determine whether the particular process represents the BPEO for the raw materials in question. It is a material consideration to which the authority should have regard, the weight to be given to it in any particular case is a matter for them”. The Court of Appeal ([1998] Env LR 719, 727) in dismissing the appeal in Kirkman appeared to accept Carnwath J’s approach, which shows the relevance of Waste Strategy 2000 as being a matter to which the Agency should have regard, rather than being obliged to consider it as determinative. In any event, I respectfully agree with Carnwath J’s comments, which undermines any suggestion that BPEO is a requirement.

[109]The significance of the Waste Strategy document is that it deals with objectives and Mr. Turner contends, correctly in my opinion, that these are merely material factors to be taken into consideration and that they are not overriding factors. In support of this submission, he relies on the statement of Pill LJ (with which Robert Walker LJ and Laddie J agreed) in Thornby Farms , that I have already quoted, which explains how objectives have to be “kept in mind” (paragraph 53). The approach of Carnwath J supports this approach. I agree with Mr. Turner that there is no cogent reason why the objectives should be construed differently when they appear in Waste Strategy 2000 . Again, Mr. Wolfe is basing his argument on the contention that the objectives in Waste Strategy 2000 are actually “requirements”, but I am unable to accept that argument as it is not borne out by the passages on which he relies. If I had been in doubt, I would have held that in any event, Waste Strategy 2000 does not claim to set out legal requirements but is, as it itself claims to be, “a vision of sustainable waste management in England and Wales for the next 20 years” (volume 2, paragraph 101). It now becomes necessary to see how the Agency dealt with the issue of the disposal of the tyres. The Treatment of Tyres in the Decision Document

[110]The Agency contend that even if it was were not obliged to do so, it did specifically take Waste Strategy 2000 into account. Indeed, in its Decision Document, the Agency quoted from the objectives in Waste Strategy 2000 .

[111]It later concluded that “the use of tyres as an alternative fuel to coal is consistent with those objectives”. It then added (page 40 of the Decision Document) that:- “in addition, the Agency has assessed the impact of tyres in a report entitled:

“Tyres in the Environment”

. The various options for dealing with used tyres have been evaluated in terms of their environmental advantages and disadvantages. The Agency concluded that more effort needs to be applied to increase the lifetime of tyres, reduce the environmental impact during use and to provide a range of sustainable ways of recovering them as a resource at the end of their lives. More emphasis also needs to be placed on material and energy recovery in line with the Government’s waste management hierarchy. The Agency therefore conclude that the use of tyres as a substitute fuel in the cement making process is consistent with the Government’s Waste Strategy [Plan] and that the relevant objectives of the [1994] Regulations have been met”.

[112]It is said by Mr. Tromans correctly in my view that the reference to the document Tyres in the Environment is significant as that publication of the Agency contains a detailed and cogent assessment of the impact of tyres on the environment. He drew my attention to some relevant extracts in it, which deal with the disposal of tyres in kilns. The Executive Summary of that document states that:- “Tyres have a high calorific value, equivalent to fuel oil and greater than coal, so using them as a fuel source is a good environmental option and saves the use of finite resources such as fuel oil, coal and coke. In some European countries between 50 and 80 per cent of used tyres are used as an energy source. There is an increasing demand for tyres as a fuel source in cement kilns in England and Wales and with regulation of emissions this is a good option, especially in the short term when other markets for material recycling and energy recovery are limited. A further point is that emissions of nitrogen oxides, an air pollutant, are reduced by up to 40 per cent by using tyres to replace coal in cement kilns. But there is public concern about burning waste in kilns and thus a need for clear information to be provided. The Agency has already set about this task with greater access to information and public meetings and intends to continue to contribute to the wider debate about tyres” (page 4 of Tyres in the Environment ).

[113]Section 5 of Tyres in the Environment deals specifically and carefully with the environmental impact of burning tyres and it states in table 5.2, which is entitled “Potential Impact of Tyres on the Environment” (on page 32) that in respect of the potential impact of “causes emissions/releases”, this has a “relatively high potential impact” which is “regulated by the Agency”. The only other potential effect of tyres in the environment is referred to in the same table under the heading “Uses transport” (namely consequences which arise when the tyres are being transferred), but this has a “relatively low potential impact”.

[114]Another part of that report deals with a comparison of the options for managing used tyres with the advantage of utilising them in cement kilns expressed in tabular form where it is stated (page 36) as being “Can potentially take 50% of used tyres .. Existing infrastructure locations across the country reduces transport needs .. Replaces use of some fossil fuels .. No ash residue .. Material recovery of iron ..” but there is also a statement in the table indicated that there was “some public concern about emissions”.

[115]The conclusion of the Tyres in the Environment report significantly states, with my emphasis added (page 38) that:- “Tyres have a very high calorific value, comparable to coal. So energy recovery in one form or other is a good environmental option, provided that emissions from the process are minimised and regulated effectively . In 1996, only 27 per cent of tyres were used for energy recovery in the UK compared with between 50 and 80 per cent in some other European countries. There is the potential for much greater recovery of energy from tyres in the UK. This would have the benefit of reducing the demand for other sources of energy and providing an outlet for end of life tyres while avoiding the need to stockpile them, with the inherent risk of fires and pollution. Three ways are used to recover energy from tyres at present: direct incineration to produce electricity (about a quarter of UK tyres), use as a fuel source in cement kilns and pyrolysis of tyres (small-scale at present). The UK is currently reliant on a single tyre incineration plant, whose running has raised technological and logistical problems, as well as the need to transport used tyres long distances. The burning of tyres in cement kilns offers a useful alternative and, since the cement kilns exist all over the country, the transport of used tyres could be reduced if this outlet was developed”.

[116]It is noteworthy that this report refers to using tyres as energy as being “a good environmental option”. This is significant, and no other environmental option has been suggested for disposal of the tyres to suggest that there was a different BPEO for tyres. It is said by Mr. Turner that the Agency was entitled to make proper use of and to rely on this conclusion in Tyres in the Environment so as to decide that the substantial increase that tyres would cause in the energy of tyres in some kilns would be consistent with the Waste Strategy 2000’s objective of reducing the amount of waste going to landfill and that it additionally would advance and contribute to that objective. It is also said by Mr. Tromans that the main and repeated thrust of Waste Strategy 2000 was the need to reduce the amount of waste going into landfill and to meet the requirements of the EC Landfill Directive , which included banning the landfill of whole tyres by 2003 and shredded tyres by 2006 ( Waste Strategy 2000 Volume 1 Paragraphs 1.5-1.11). As the summary explains “we must increasingly put [waste] to good use through recycling, composting or using it as fuel” (page 7), I consider that the decision of the Agency on the June 2000 application is consistent with and supportive of this approach, especially in the light of the statements in Tyres in the Environment.

[117]Furthermore, it is noteworthy that the Waste Strategy 2000 also refers to the importance of tyres as fuel substitutes ( Waste Strategy 2000 Volume 2 paragraph 5.65) and to the use of waste tyres as fuel and cement kilns as being a “particularly notable feature” of tyre recovery ( Waste Strategy 2000 Volume 2 paragraphs 8.176 - 8.179) so that even when tyres are re-used, there will ultimately be a need to dispose of them at some point. The Agency was entitled to consider this in the light of the passage in Tyres in the Environment . I consider that by considering Tyres in the Environment in this way with that document, the Agency examined carefully and properly the environmental effect of disposing tyres in kilns. That report was specifically dedicated, as its title shows, to tyres (including their disposal) and the environmental issues connected with them. I consider that it must have been the intention of those who produced Waste Strategy 2000 that it was to be read in conjunction with Tyres in the Environment . It is clear that it could not have been intended that this specialist tyre report was to be overridden by Waste Strategy 2000 and nothing in that later report shows that to be incorrect. Not surprisingly, I did not understand Mr. Wolfe to criticise the Agency for taking account of the provisions in Tyres in the Environment as any such submission would have to be rejected. To my mind, the Agency cannot be faulted for taking into account not merely Waste Strategy 2000 but the relevant and illuminating report Tyres in the Environment . Indeed, if it had not done so, the Agency might well have been liable to have been criticised.

[118]Mr. Wolfe then claims that the Agency should have explained in greater detail how it had dealt with the Waste Strategy 2000 document and he seeks to draw inferences adverse to the Agency from its alleged failure to do so. I cannot agree, and as I have explained in paragraph 21 above, Lord Clyde has pointed out that the Agency only had to set out the grounds on which the decision had been reached and not all the thinking which lies behind it. That is clearly what the Agency did and no valid complaint can be made about the way in which it dealt with that matter, especially as it had stated that its decision was consistent with Waste Strategy 2000. The mere fact that the Decision Document did not expressly refer to BPEO for the tyres is not fatal when it is clear that it had considered Waste Strategy 2000 and Tyres in the Environment , which dealt with tyres and stated that using them as fuel was “a good environmental option” (see paragraphs 112 and 115 above), especially in the absence of any other BPEO for the tyres.

[119]Thus, the Agency had specifically considered the 1994 Regulations, Waste Strategy 2000 and the specific problems of tyres, as referred to in the specialist report Tyres in the Environment before it concluded with my emphasis added, that “the use of tyres as a substitute fuel in the cement making process is consistent with the Government’s Waste Strategy .. and that the relevant objectives of the Waste Licensing Regulations have been met” (page 4 of the Decision Document). I have no reason to doubt the truth of this conclusion which the Agency was entitled to reach. There was no need, to my mind, for the Decision Document to go through point by point every argument that would have to be considered in the light of the Waste Strategy 2000 in the way that a pleading does. Thus, no inference adverse to the Agency can be drawn from the failure of the Agency to deal with every point in Waste Strategy 2000 . In other words, the Agency clearly had in mind the Waste Strategy 2000 document and it was satisfied in this case that there was nothing in it which led to it changing its decision. The Agency’s reference to that document and to Tyres in the Environment demonstrates to my satisfaction that the Agency had clearly considered properly and fairly the environmental aspects of disposing of tyres. In any event, as Pill LJ said in Thornby Farms “some decisions involve more progress towards achieving objectives than others” (see paragraph 45 above).

[120]Thus, I conclude that the Agency was entitled to reach the decision that it did and especially as it considered Waste Strategy 2000 and the more specifically relevant publication Tyres in the Environment . In any event, if I had been in any doubt about this, I would have applied the increased margin of appreciation, which as I have explained, applies to decisions of the Agency on matters such as the June 2000 application. So this ground of challenge also fails. If, as I consider to be the case, permission to make this claim is still needed, I will now grant it, but then, for the reasons that I have outlined, I must reject this claim. Issue 4 - The Remedy Issue Quashing the decision

[121]I have already indicated that the claimant has not succeeded on any of his public law claims, but in case I am wrong, I must now consider whether relief ought to be granted if the claimant had been correct in any of his complaints. Both Mr. Turner and Mr. Tromans say that this is not an appropriate case in which to quash the decision of the Agency as set out in the Decision Document. In fairness to Mr. Wolfe, I should explain that he did not really argue to the contrary but he said that he would be “surprised” if I were to make a quashing order. It is noteworthy that in R v. Bolton MBC ex parte Kirkman [1998] Env. L.R. 560, Carnwath J (as he the was) said (pages 581-2) that in deciding whether to quash a decision of this kind, the court has to look at all the circumstances of the case and those included considering the effects on the legitimate interests of the claimant, but also on other parties of quashing the decision under challenge. This approach was expressly approved by the Court of Appeal ( R v. Bolton MBC ex parte Kirkman [1998] Env. L.R. 719,728) and I will apply it in considering the submissions to which I now turn.

[122]First, Mr. Turner and Mr. Tromans point out that if a quashing order was made, it would result in increased pollution and this is a very significant factor, if not an overwhelming one. As I have explained, the effect of the Agency granting Blue Circle’s application to use tyres has been to improve the environment as it would reduce emissions of oxides of nitrogen. Indeed Mr. Wolfe does not dispute “the [Agency’s] contention (which is unchallenged in these proceedings) that the variation presented a new improvement in emissions”. Thus quashing the decision of the Agency under challenge would have an adverse environmental effect. Harrison J considered this to be a proper ground for refusing to quash a similar decision in Leam’s case and I also believe this to be a valid objection to making a quashing order in this case.

[123]Second, Mr. Tromans explains that Blue Circle would suffer serious loss if the decision of the Agency to allow their June 2000 application was quashed. As conditions of obtaining this variation, Blue Circle was obliged to incur expenditure amounting to £356,063.30 in the period from the date of the Decision Document until the time when the present application was made by the claimant; it also had to spend further sums of more than £1 million for burning tyres at the Westbury works. Mr. Graham Worthington, who is Blue Circle’s expert on kiln emissions and fuel trials, says in a witness statement that these sums would be wasted costs if the decision under review in this case is quashed. He also points out that it was apparent from the conditions to the variation that after receipt of the Decision Document that Blue Circle “would be immediately committing substantial funds to ensure that the Works complied with the Improvements Programme of which [the claimant] was aware”; the claimant has not sought to dispute this statement, which I accept as correct. That constitutes a further valid reason against quashing the decision, especially when accompanied by the first reason set out in the previous paragraph.

[124]Third, a review of the process is at present in hand in order to meet the new requirements of the IPPC regime and so the matters which have concerned the claimant are now in any event, being reconsidered in that review without the need for a quashing order. This suggests that there is no present need to make a quashing order. These three factors show individually or cumulatively that a quashing order should not be made and so I would not have quashed the decision of the Agency under challenge, even if I had accepted the claimant’s submissions on Issues 1, 2 or 3. So I do not find it necessary to consider the other arguments of Mr. Turner and Mr. Tromans against quashing the decision. Should declarations be granted?

[125]Mr. Wolfe did, however, contend that this would be an appropriate case in which to make declarations and all counsel sent me helpful written submissions on this issue.

[126]The court always has a discretion whether to grant declaratory relief in judicial proceedings where “having regard to .. (c) all the circumstances of the case it will be just and convenient for the declaration to be made” (Supreme Court Act 1981 Section 31(2)) . In support of his claim for a declaration, Mr. Wolfe contends that the general approach is that it would be “regrettable if a litigant who established that he has been legally wronged and in particular, so important in a matter as the pursuit of his chosen profession, has to be sent away from a Court of Justice empty-handed save for an order for the recoupment of the expense to which he has been put in establishing a barren victory” (per Lord Brightman in Chief Constable of Wales v. Evans

[1982] 1 WLR 1155

at 1172).

[127]It appears to be common ground between the parties that the question of whether a declaration would serve a useful purpose for the claimant or in the public interest is important. As Laws J (as he then was) said, with my emphasis added in R v. Oxfordshire County Council ex parte P

[1996] ELR 153

at 157B-D:- “A decision to refuse [a remedy] as a matter of discretion on the footing that the claim is academic ought not in my view to be made without some appreciation of the force of those arguments. In a public law case, [a claimant] may have an important point to bring to the court’s attention whose resolution might be required in the public interest, even if the [claimant] himself has suffered no perceptible prejudice as a result of the decision in question”.

[128]Mr. Wolfe in support of his claim for declaratory relief, asks me to bear in mind that the claimant remains a resident of the area near Blue Circle’s cement works, which will continue to be regulated by the Agency with the consequence that it is important for him to establish the proper basis on which the Agency construes and performs its obligations in the future. He further contends that the mere fact that the Agency is about to issue a fresh permit, does not establish the proper basis for the future. Mr. Wolfe also points out that there is a public interest aspect to the claim because many other people live in the area of the cement works. In addition, he says that there is general interest in the points that arise on this claim, which relate to the way in which the Agency and local authority regulators approach their obligations to minimise emissions under the Act as well as under their parallel obligations under the 1994 Regulations and Waste Strategy 2000 . Mr. Wolfe contends that the question of principle remains and that therefore declarations ought to be made.

[129]Mr. Tromans submits, as does Mr. Turner, that a declaration should not be granted. He points out that the question of a declaration has to be seen in the light of two important factors. The first is the special circumstances of this case under which the Agency is now considering the matter afresh as part of a new appraisal process and the Agency have stated that this will include ascertaining the need for sulphur scrubbers. The second is that the declarations sought relate to the circumstances prevailing when the Decision Document was published in August 2001 and since then, there have been many significant changes. Thus it is said that a declaration would neither resolve live disputes nor provide the claimant with any additional protection or benefit.

[130]Mr. Tromans submits that even if the Agency ought to have considered whether to require scrubbers before granting the Section 11 variation, then the matter could be made clear in the terms of the judgment without the difficulty of seeking to frame a declaration. He explains that a conclusion in favour of the claimant would turn solely on the particular and specific factual circumstances prevailing at the particular time when the decision was made in August 2000 and not at the present time nor more significantly at the time of the next decision. Mr. Turner for the Agency supports the approach of Mr. Tromans but he stresses that it is difficult to discern any useful purpose that could be achieved by making the declarations, especially as the use of tyres in the kilns at the cement works is now being considered afresh in the light of the situation prevailing.

[131]To my mind, even if the claimant had established errors by the Agency on any of the three issues relied on by him, this would probably have been one of those cases in which it would be appropriate for him to leave “empty-handed” so far as substantive remedies were concerned for two overlapping reasons. First, the judgment would serve sufficient purpose in establishing what ought to have been done at the time when the Decision Document was drafted, rather than what should be done. Second and more importantly, any declarations would now only be of historic interest as it would relate to consideration of BATNEEC and BPEO in the light of the specific factors prevailing at the latest when the Decision Document was published in August 2001. Similarly, in any event, the terms of the forthcoming and any subsequent decision by the Agency would depend on the facts then prevailing, which might be different from or, at least, are unlikely to be the same as the state of affairs prevailing when the Decision Document was published in August 2000.

[132]Thus, for example, the dispute over sulphur scrubbers will be considered on the pending IPPC review, which would then need to take into account the cost element, which entails consideration of the costs that would by then have been saved by Blue Circle’s burning tyres compared with the conventional mix. That is an essential part of BATNEEC. In addition, the approach in BATNEEC would be very different from what it was at the time of the decision as not only might there have been technological advances, but the actual effect of using tyres could by then have been ascertained and evaluated based on actual facts. In addition, the need for a full BATNEEC review might be greater than it was when the June 2000 application was before the court, as more than two years would have elapsed since the June 2000 application was made. Similarly, the determination of the BPEO on tyres would depend on the up-to-date and actual experience of the use of tyres at the Westbury works as at the time of the IPPC review. On each of these issues, the facts prevailing when the IPPC review is conducted might be very different from those prevailing when the June 2000 application was being considered.

[133]Put in another way, there will be two important and decisive differences between the Decision Document and the decision under the IPPC review. First, at the time of the IPPC review, it will be possible to consider each of the issues raised on this application against the background of what has actually happened in the light of the changes contained in the Decision Document, rather than what was anticipated would happen. Second, there might be technological scientific advances of environmental relevance. Conclusion

[134]I appreciate that the claimant feels genuinely concerned about environmental issues and will be disappointed by this decision, but for the reasons that I have stated, I must reject the wide-ranging and interesting submissions of Mr. Wolfe. So although permission is granted to pursue the third claim, all the challenges to the decision must be dismissed. APPENDIX “decisions on waste management, including decisions on suitable sites and installations for treatment and disposals, should be based on a local assessment of the Best Practicable Environmental Option”. “The right way to treat particular waste streams cannot be determined simply. The objective is to choose the Best Practicable Environmental Option (BPEO) in each case. BPEO varies from product to product, from area to area and from time to time. It requires waste managers to take decisions which minimise damage to the environment as a whole, at acceptable cost, in both the long and short term. A more detailed description of how decision-makers can identify the BPEO is at Chapter 3 section starting 3.3 in Part 2 of this strategy. In determining BPEO we will expect those making decisions to take account of three key considerations: the waste hierarchy. Within the hierarchy, the Government and the National Assembly do not expect incineration with energy recovery to be considered before the opportunities for recycling and composting have been explored the proximity principle requires waste to be disposed of as close to the place of production as possible. This avoids passing the environmental costs of waste management to communities which are not responsible for its generation and reduces the environmental costs of transporting waste self-sufficiency. The Government believes that waste should not be exported from the UK for disposal. Waste Planning Authorities and the waste management industry should aim, wherever practicable, for regional self-sufficiency in managing waste. “the technique that should be used for making waste management decisions is known as Best Practicable Environmental Option (BPEO) and the simplest way to encourage integrated waste management is to structure the implementation of BPEO with the above key elements in mind. The following section gives some further detail on determining BPEO. Subsequent sections in this Chapter consider the impact of land use planning, waste management licensing, integrated pollution prevention and control regulation and the Duty of Care, which all have a role to play in determining and implementing optimum waste management solutions across England and Wales. Decisions on how to treat or dispose of waste should be taken locally, taking account of local circumstances and the nature of particular waste streams. When taking waste management decisions on suitable treatment options, sites and installations, local authorities must follow the framework set out below. This framework should also act as a guide for other decision-makers, including business waste managers. The precautionary principle Any integrated waste management system must make allowance for the precautionary principle, which states that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as reason for postponing cost-effective measures to prevent environmental degradation. Determining the Best Practicable Environmental Option If we are to manage our waste more sustainably, decision-makers need the tools to move us in that direction. Waste is not a single substance and its management is not a series of simple choices. Rather it is, for the most part, a complex mixture of different materials, in differing proportions. Each of these materials has the potential to impact differently on the environment. Environmental impact can also be influenced by the collection system used, the locations where waste is generated, managed and disposed of and the resources consumed through managing our waste. In a sustainable and integrated system all these factors must be taken into account when making decision on how best to manage waste. The process that should be used for considering the relative merits of various waste management options in a particular situation is the Best Practicable Environmental Option (BPEO). This was defined in the 12 th Report of the Royal Commission on Environmental Pollution as: the outcome of a systematic and consultative decision-making procedure which emphasises the protection and conservation of the environment across land, air and water. The BPEO procedure establishes, for a given set of objectives, the option that provides the most benefits or the least damage to the environment as a whole, at acceptable cost, in the long term as well as in the short term.

DAVID LEVY v THE ENVIRONMENT AGENCY BLUE CIRCLE INDUSTRIES PLC [2002] EWHC 1663 (Admin)

Cited in 3 later judgments