Lewis, R (on the application of) v Environmental Agency & Anor [2005] EWHC 1110 (Admin)

Case No CO/5876/2004

[2005] EWHC 1110 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 12th May 2005

Strand

London WC2

B E F O R E:

MR JUSTICE SULLIVAN

Between

THE QUEEN ON THE APPLICATION OFClaimant

LEWISClaimant

-v-

Between

ENVIRONMENTAL AGENCYDefendant

ONYXInterested Party

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR D WOLFE and MR N MARTIN appeared for CLAIMANT

MR J TURNER and MR G FACENNA appeared for FIRST DEFENDANT

MR J PEREIRA and MR A BOOTH appeared for INTERESTED PARTY

J U D G M E N T

Thursday, 12th May 2005

[1]MR JUSTICE SULLIVAN: Introduction: This is an application for judicial review of a decision by the first defendant ("the Agency") to grant a permit under Regulation 10 of the Pollution Prevention and Control (England and Wales) Regulations 2000 ("the PPC Regulations") to the second defendant ("Onyx") on 27th August 2004 in respect of the New Albion Landfill Site, Occupation Road, Spring Cottage, Leicestershire ("the site"). Factual background: The site lies some 2.5 kilometres west of Ashby de la Zouch and 5 kilometres south of Burton on Trent. The claimant lives in the village of Blackfordby. In her witness statement she says that the nearest boundary of the site is approximately one mile from her home as the crow flies. The proposed landfilling will take place in the residual void that has resulted from opencast clay and coal extraction. The site is very substantial. The landfill will occupy an area of about 24.5 hectares, with the basal area of the void being around 7.8 hectares.

[2]The Agency's Decision Document, which accompanied the permit, explains that the waste will be deposited in a "specially engineered landfill". The permit itself is 43 pages long, excluding a 6-page Introductory Note. The Decision Document is 100 pages long. These documents, together with other reports submitted to the Agency, contain a wealth of technical information about the proposed landfill operations.

[3]For present purposes, the design of the landfill is sufficiently explained by Ms Cook, the Team Leader, Regulatory Waste, for the Agency's Upper Trent Area, in her witness statement, as follows:

"21. At the New Albion site, the void left from the opencast mining operations is irregularly shaped. 'Overburden' from the opencast mining operations will be used to create a more evenly-shaped cavity for the landfill. The overburden will be compacted and constructed to an engineering specification, and will then form a stable base for the landfill. 22. The irregular shape of the opencast void means that the engineered backfill will vary considerably in thickness across the site. The backfill will be at least 2 m thick at any point around the landfill, and in some places it will be considerably thicker. 23. ... the backfill will have a cushioning effect, protecting the landfill liner in the event of any residual movement in mine workings in the vicinity of the site. 24. A groundwater drainage blanket will be installed above the backfill, together with a drainage system of slotted pipes on the side walls, allowing the groundwater to be drained into specially constructed sumps. From each sump a groundwater abstraction well will be constructed. 25. The landfill liner will then be laid above the groundwater drainage and the underlying foundation layer. The liner will be made of engineered clay, constructed to a strict engineering standard, with a maximum permeability of 1x10-9 metres per second. The clay liner will be at least 2.28 m thick on the base and extending up to 4 m up the sidewalls above the base of the landfill. It will be a least 1 m thick thereafter up to the ground surface. 26. Once the liner has been laid, the engineered void inside the clay liner will have a capacity of 3.9 million m 3. 27. The landfill may accept household, commercial and industrial waste including inert, non-hazardous and stable non-reactive hazardous waste (hazardous waste is excluded unless it can be demonstrated that it is stable and non-reactive). Waste may be accepted at the site at a rate of up to 600,000 tonnes a year with the total quantity of waste to be deposited in the landfill restricted to 5.2 million m 3 as received (after compaction and settlement this must not exceed 3.9 million m 3). 28. The site will be filled in seven 'phases' ... the annual limit on waste importation set out in the Permit will enable the site to be filled before the expiry of the current planning permission in 2014 (ie, within 10 years) ... ."

[4]Part of the void is below the surrounding groundwater level. The implications of this are explained in more detail by Mr Bliss, a Policy Manager in the Agency's Head Office, Waste Regulation team in his witness statement as follows:

"7. The proposed landfill site at New Albion is a sub-water table landfill, ie, part of the landfill void in which waste will be placed is situated below the natural level of the surrounding water table. Many sub-water table landfills, including New Albion, are designed and operated on the basis of 'hydraulic containment', which is the practice of maintaining the level of leachate in landfilled waste at a level lower than the surrounding external groundwater. This produces a potential hydraulic gradient into the site that prevents flow of leachate (and therefore contaminants) from the landfill waste out of the site into groundwater. Depending on the permeability of the landfill lining and the magnitude of the inward hydraulic gradient, some groundwater may flow into the landfill, but such designs are intended to avoid such inflow as far as is reasonably possible, recognising that no lining system can be totally impermeable in practice. 8. In effect, hydraulic containment sites rely on maintaining control over groundwater and leachate levels (together with other safeguards) to prevent pollution. Most commonly an inward hydraulic gradient is maintained by pumping out leachate from the landfill to keep the level inside the landfill lower than the groundwater level, and leachate is then treated on site or sent for disposal off site. At some sites, the hydraulic gradient is maintained through the active management of surrounding groundwater levels as well as by pumping of leachate, although at New Albion the long-term operational conditions envisage groundwater levels being allowed to settle at natural rest levels, with only leachate having to be pumped out and treated."

[5]In response to a suggestion by the claimant that these proposals for landfilling at the site were unusual, Mr Bliss said this:

"9. ... about 200 non-hazardous waste landfills in England and Wales entail some or all of the site being below the local water table [of which 40 to 50 are estimated to operate on the principle of hydraulic containment]. This amounts to slightly over a third of existing non-hazardous landfills in England and Wales. In some areas, such as the Midlands (where New Albion is located) and East Anglia, sub-water table landfills may account for as many as two-thirds of authorised landfill sites. The hydrogeological conditions in the UK mean that the operation of landfills under the principle of hydraulic containment is not uncommon. 10. Sub-water table landfills are also found in other EU Member States. From contact with colleagues in other European environment agencies, I am aware that sub-water table landfills can be found, at least, in France, Belgium, the Netherlands and Denmark, although I am not aware of the specific number of sites in each country and whether the types of waste placed in such landfills differs from country to country. 11. Some experts believe that hydraulic containment landfills have environmental benefits compared with landfills situated above the water table, although the Agency approaches matters strictly on a case-by-case basis. The positive features of such landfills include the fact that the inward hydraulic gradient provides a measure of protection against pollution in the event of a failure of the landfill liner. In addition, some sub-water table landfills may be able to benefit from 'flushing', whereby an irrigation system forming part of the leachate management system is used to recirculate leachate through the landfill so as to soak any dry waste, and thereby accelerate the degradation of contaminants."

[6]Having explained how groundwater would be dealt with while each phase was being filled with waste, Ms Cook said in paragraph 31 of her witness statement:

"Leachate inside the landfill will be allowed to rise to a maximum level of 2 m below the surrounding groundwater. This will maintain an appropriate inward hydraulic gradient, and create conditions of what is called 'hydraulic containment'. Monitoring of groundwater and leachate levels and pumping of leachate, controlled through the Permit and Site Working Plan, will ensure that this hydraulic regime is maintained."

[7]Save for the fact that part of the void to be filled with waste is below surrounding groundwater level, the claimant does not suggest that there is anything in the least unusual about the method of landfill described above. Ms Heasman, the Technical Development Director and Senior Environmental Chemist of MJ Carter Associates Ltd ("MJC"), who acted on behalf of Onyx in submitting the application for a permit to the Agency, says in her witness statement:

"3.2 Modern landfill sites such as Albion are designed based on the principle of containment. Low permeability materials such as the clay used at Albion are placed to an engineering specification on the base, sides and ultimately the top of the landfill to form seals. A leachate collection layer termed a leachate drainage blanket is placed above the low permeability seal on the base of the landfill. Drains in the leachate drainage blanket convey the leachate to collection points from which the accumulated leachate is removed and either discharged to an off site treatment works such as a sewage works or treated on the site prior to discharge to a sewage works for further treatment or to a watercourse under the terms of a permit issued by the Environment Agency. The leachate drainage system ensures that the depth of leachate in the landfill can be controlled ... 3.3 No material is totally impermeable to water. Materials have a variable capacity to allow water and other fluids to pass through them. Material such as gravel will visibly allow water and other fluids to pass through it whereas material such as clay will not visibly allow fluids to pass through it but it is permeable to a very low degree. The capacity of a material to allow water to pass through it is termed the hydraulic conductivity or coefficient of permeability. A material such as gravel has a high hydraulic conductivity or coefficient of permeability whereas a material such as clay has a low hydraulic conductivity or coefficient of permeability. The rate at which a fluid passes through a material such as clay is controlled by the permeability of the material and the hydraulic gradient across the material which is determined by the relative levels of liquid on either side of the material. It is a well known law of physics that liquids always flow from an area of high hydraulic pressure to an area of low hydraulic pressure. 3.4 The low permeability liner which forms the base, sides and top of a landfill site is placed to an agreed coefficient of permeability and the depth of the leachate in the site is specified in the PPC Permit. By specifying these two key parameters the rate of movement of leachate through the liner can be calculated hence the impact on the environment and specifically on groundwater can be assessed. This risk assessment is termed a hydrogeological risk assessment and forms part of an iterative process of design for the site which ensures that the combination of the proposed low permeability seals and the proposed leachate and groundwater management regimes result in the protection of groundwater quality. As stated in paragraph 3.3 no material is totally impermeable therefore there will always be movement of liquid through a low permeability liner. The task in designing landfill containment is to ensure that to the extent that leachate does move through the liner from the inside of the liner towards the outside it does not result in a breach of relevant legislation or standards. 3.5 ... 3.6 Many of the mineral workings that are restored by landfilling are excavated to a depth below the level of the surrounding groundwater. Typically these sites are sand and gravel extractions which are underlain by clay or excavations in the Coal Measures where there are water bearing horizons above the level of the base of the extraction, such as at Albion Landfill Site. Sites in these hydrogeological circumstances are common in the UK and elsewhere in Europe. 3.7 ... 3.8 ... 3.9 For sites where the base of the landfill is above the groundwater table the leachate which accumulates in the base of the site is always above the level of the underlying groundwater. There is always a driving force causing leachate to flow down at a slow rate through the low permeability liner and through the underlying unsaturated material to the groundwater. ... 3.10 For sites where the natural level of the groundwater in the vicinity is above the base of the site the water in the surrounding strata typically is maintained at a level at or below the base of the extraction or landfill void by pumping until such time as the engineering works to construct the low permeability lining are completed and waste has been placed. Following completion of waste placement groundwater pumping ceases and the groundwater level rises to the natural level. The level of the leachate in the base of the site is maintained at a level which is lower than the level of the groundwater outside the site. This means that there is no driving force for leachate to migrate out of the site to the groundwater. The driving force is for water to flow at a slow rate from outside the site through the low permeability liner and into the waste. This type of landfill is termed a hydraulic containment landfill. ... 3.11 Hydraulic containment landfill sites such as Albion Landfill Site are common in England and Wales. They are present in other parts of Europe where the geological circumstances are similar. The principles for the management of hydraulic containment landfill sites are similar throughout Europe and are not unique to England and Wales nor to Albion Landfill Site."

[8]As part of the information supporting the application, MJC prepared an assessment of the impact of the proposed landfill on groundwater quality. A Risk Assessment was carried out. The Risk Assessment pointed out that "Under designed conditions when there is a hydraulic gradient into the site there will be no migration of leachate from the site."

[9]The Assessment sought to answer the question, what would happen if pumping ceased over a lengthy period and leachate levels within the site were allowed to rise until they were two metres above the level of surrounding groundwater? In those circumstances, with a two-metre head of leachate, the calculated time for leachate to travel through the liner was 289 days for a one metre thick clay liner and 1157 days for a two metre thick clay liner. The Risk Assessment did not consider the reverse position, how long would it take for groundwater to pass through the clay liner if pumping away the leachate kept a two-metre head of groundwater, but there is no dispute that (insofar as they are correct) the same calculations should be applied in reverse with the same result.

[10]I say, insofar as they are correct, because the claimant disputes and/or does not accept some of the technical data produced by Onyx, but she recognises that such differences of technical judgment were for the Agency to resolve, subject only to considerations of Wednesbury reasonableness, which are not in issue in this application.

[11]In a later report, dated 1st March 2005, prepared for the Agency by Golder Associates (UK) Ltd, dealing with completion criteria in respect to leachate quality, the groundwater inflow rate, based on a two metre hydraulic gradient and a basal area of 7.8 hectares is given as 8.1 m 3 per day.

[12]The history of local opposition to landfill at the site goes back for some years. In 2000 there was an unsuccessful application for judicial review of the planning permission that had been granted for the development. Onyx applied for a Waste Management Licence under the Environment Protection Act 1990 on 24th July 2000. A Waste Management Licence was granted on 31st July 2001. The claimant commenced judicial review proceedings in respect of that decision. Consideration of the application for permission was adjourned on 3rd December 2001 when it became clear that the Waste Management Licence would be superseded by a permit issued under the PPC Regulations. In the event, the Agency's consideration of Onyx's application for a PPC permit took longer than expected and it was not until 27th August 2004 that the permit which is challenged in these proceedings was granted. The challenge to the superseded Waste Management Licence has been withdrawn. The application for judicial review The claimant challenged the grant of the PPC permit on four grounds.

[13](1) Allowing the ingress of groundwater into the landfill was contrary to both The Landfill (England and Wales) Regulations 2002, which give domestic effect to the Landfill Directive, 1999/31/EC and the Groundwater Regulations 1998, which give domestic effect to the Groundwater Directive, 1980/68/EC (the Landfill Directive/Regulations and the Groundwater Directive/Regulations respectively).

[14](2) The Agency could not lawfully conclude that Onyx was a "fit and proper person" to hold the PPC permit, for the purposes of Regulation 4(3) of the PPC Regulations because Onyx had not made adequate financial provision to ensure that the obligations (including aftercare provisions) of the licence would be met.

[15](3) The hydraulic containment regime described above relied upon a "technical precaution", pumping, to prevent the direct discharge of list I substances into groundwater and such reliance was not permissible under the Groundwater Directive (and Regulations).

[16](4) The Agency had failed to comply with Article 8 of the Landfill Directive because the conditions in the permit did not describe the measures which would be taken to "treat contaminated water and leachate collected from the landfill to the appropriate standard required for their discharge."

[17]On 21st January 2005 Harrison J granted permission on the papers for the claimant to apply for judicial review on grounds(1) and (3), saying that they were "just arguable", but refused permission in respect of grounds

(2) and (4), saying that there was no substance in them. The claimant renewed her application for permission in respect of grounds (2) and (4). On 22nd February Forbes J ordered that the renewal application, and if permission was granted, the substantive challenges on grounds (2) and (4) should be heard at the same time as the substantive challenges on grounds (1) and (3).

[18]I will consider the grounds in the order in which they were dealt with by the parties in their submissions: grounds (1), (3), (4) and (2). Before doing so, it is convenient to mention the fact that, at least for the purposes of the present case, the parties are agreed that the provisions of the two Directives relevant for the purposes of grounds (1), (3) and (4), the Landfill Directive and the Groundwater Detective have been correctly transposed into domestic legislation by the relevant provisions of the two Regulations, the Landfill Regulations and the Groundwater Regulations respectively. To avoid unnecessary repetition, I will simply refer to the relevant provisions of the Directives. The provisions of the Landfill Directive relevant for the purposes of ground (2) are replicated, albeit in a somewhat different format, in Regulation 4(3) of the PPC Regulations. Again, I will simply refer to the relevant provisions of the Directive. Ground (1) The claimant contends that the hydraulic containment system described above is in breach of the requirements of both the Landfill Directive (Ground 1A)) and the Groundwater Directive (Ground (1B)). Ground (1A) Article 8 of the Landfill Directive requires Member States to take measures to ensure that landfill permits are not issued unless the landfill project complies with all of the relevant requirements of the Directive, including the Annexes thereto. Annex I sets out the General Requirements for all classes of landfills. Since it is necessary to interpret the provision relied upon by the claimant in the context of the Directive as a whole, I will set out paragraphs 1, 2 and 3 (part) of Annex 1, underlining the passage relied upon by the claimant. "1. Location1.1 The location of a landfill must take into consideration requirements relating to: (a) the distances from the boundary of the site to residential and recreation areas, waterways, water bodies and other agricultural or urban sites; (b) the existence of groundwater, coastal water or nature protection zones in the area; (c) the geological and hydrogeological conditions in the area; (d) the risk of flooding, subsidence, landslides or avalanches on the site; (e) the protection of the nature or cultural patrimony in the area.

1.2 The landfill can be authorised only if the characteristics of the site with respect to the above mentioned requirements, or the corrective measures to be taken, indicate that the landfill does not pose a serious environmental risk. 2. Water control and leachate management Appropriate measures shall be taken, with respect to the characteristics of the landfill and the meteorological conditions, in order to: - control water from precipitations entering into the landfill body, - prevent surface water and/or groundwater from entering into the landfilled waste, - collect contaminated water and leachate. If an assessment based on consideration of the location of the landfill and the waste to be accepted shows that the landfill poses no potential hazard to the environment, the competent authority may decide that this provision does not apply, - treat contaminated water and leachate collected from the landfill to the appropriate standard required for their discharge. The above provisions may not apply to landfills for inert waste. 3. Protection of soil and water

3.1 A landfill must be situated and designed so as to meet the necessary conditions for preventing pollution of the soil, groundwater or surface water and ensuring efficient collection of leachate as and when required according to Section 2. Protection of soil, groundwater and surface water is to be achieved by the combination of a geological barrier and a bottom liner during the operational/active phase and by the combination of a geological barrier and a bottom liner during the operational/active phase and by the combination of a geological barrier and a top liner during the passive phase/post closure.

3.2 The geological barrier is determined by geological and hydrogeological conditions below and in the vicinity of a landfill site providing sufficient attenuation capacity to prevent a potential risk to soil and groundwater. The landfill base and sides shall consist of a mineral layer which satisfies permeability and thickness requirements with a combined effect in terms of protection of soil, groundwater and surface water at least equivalent to one resulting from the following requirements. ... [The requirements are then set out for hazardous waste, non-hazardous waste and inert waste respectively.] ...

3.3 In addition to the geological barrier described above a leachate collection and sealing system must be added in accordance with the following principles so as to ensure that leachate accumulation at the base of the landfill is kept to a minimum. [The principles are then described.]"

[19]The claimant contends that it is of the essence of the hydraulic gradient system described above that, far from preventing groundwater from entering into the landfill, it permits it to do so, however gradually, in order to prevent leachate from flowing out of the landfill, through the clay liner, in the opposite direction. She relies upon the distinction drawn in paragraph 2 between controlling water from precipitations entering into the landfill and preventing groundwater from doing so.

[20]In summary, the defendant and the interested party contend that the claimant errs in interpreting the sentence she relies upon literally and in isolation, rather than purposively and in the context of the Directive as a whole. They submit that on a proper interpretation of the requirements imposed by Annex 1, the clay liner required by the conditions in the permit will prevent groundwater from entering the landfilled waste.

[21]I accept that submission for the following reasons. The sentence relied upon by the claimant must be interpreted in the context of the Directive as a whole, not in isolation. The underlying purpose of the Directive is to ensure that: "in the future, only safe and controlled landfill activities should be carried on throughout the community." (Recital (2)).

[22]The overall objective of the Directive is described in more detail in Recital (12) and Article 1:

"(12) Whereas it is necessary to indicate clearly the requirements with which landfill sites must comply as regards location, conditioning, management, control, closure and preventive and protective measures to be taken against any threat to the environment in the short as well as in the long-term perspective, and more especially against the pollution of groundwater by leachate infiltration into the soil." "

Article 1 Overall objective 1. With a view to meeting the requirements of Directive 75/442/EEC, and in particular Articles 3 and 4 thereof, the aim of this Directive is, by way of stringent operational and technical requirements on the waste and landfills, to provide for measures, procedures and guidance to prevent or reduce as far as possible negative effects on the environment, in particular the pollution of surface water, groundwater, soil and air, and on the global environment, including the greenhouse effect, as well as any resulting risk to human health, from landfilling of waste, during the whole life-cycle of the landfill."

[23]Annex 1 is concerned with a particular type of, often large scale, engineering activity: landfilling. The intention is not that such activity should be prohibited, but that it should be authorised only if it "does not pose a serious environmental risk" (see paragraph 1.2 of Annex 1). In such a context, the proposed clay liner will "prevent ... groundwater from entering into the landfilled waste." When they agreed to the Directive, the Member States would have been well aware of the fact that, since no material is totally impermeable to water, it would be an engineering impossibility completely to prevent (or "stop", the sense in which "prevent" is used by the claimant) groundwater from entering into a landfill if any part of it was below the water table.

[24]On behalf of the claimant, Dr Woolf submits that it would be possible to prevent (stop) groundwater from entering into a landfill if the landfill was located above the water table. But such an approach to the meaning of "prevent" would lead to an even greater problem, given that the Directive is especially concerned to guard against the pollution of groundwater by leachate infiltration into the soil (see Recital (12) above). On the claimant's approach, given that no material is wholly impermeable to water, there would be infiltration (however slow) of leachate from any above water table landfill down through the liner and thence through the soil to the water table.

[25]Paragraph 3 of Annex 1 deals in more detail with the measures that must be taken for "preventing pollution of the soil, groundwater or surface water." "Protection ... is to be achieved by the combination of a geological barrier and a bottom liner ..." (paragraph 3.1).

[26]The characteristics of the geological barrier which will "prevent a potential risk to soil and groundwater" are then described in paragraph 3.2. Despite the fact that the mineral layer comprising the geological barrier will not be totally impermeable, it will still be "preventing" pollution of, or "protecting" the soil, groundwater and subsoil for the purposes of Annex 1. Against this background, I see no reason to construe "prevent" as contended for by the claimant, in the sense of "stop". I accept that in certain contexts "prevent" may mean "stop" or "make impossible", but in others it may mean "hinder": see the meanings of "prevent" given in the Concise and the Shorter Oxford English Dictionaries. A pedant might say that because surrounding groundwater would be able to pass through the clay liner after some 9 1/2 months or three years (depending on the thickness of the clay), it would be merely "hindered" from entering into the landfill. In absolute terms, the figure of 8.1 m 3 per day may seem large, but in the context of a void with a capacity to accommodate 3.9 m 3 of waste when compacted, it is fairly described as insignificant or de minimis.

[27]Notwithstanding the fact that clay is not impermeable, its permeability is so low that in ordinary language a clay liner of appropriate thickness will "prevent" groundwater from entering this landfill, just as the puddled clay liners laid down by the navvies in earlier centuries "prevented" the water in the canals from escaping into the surrounding soil, and a modern damp proof course "prevents" a house from becoming damp.

[28]The claimant relied upon the distinction between the obligation to "control" precipitation from entering the site, and the obligation to "prevent" surface water and groundwater from doing so. In the former case, it was impossible to stop rain water from entering a landfill site, since it would not be possible to cap the whole site until filling had been completed. In the latter case, it was possible to stop groundwater from entering a landfill, by locating the landfill above the water table.

[29]I accept that "prevent" in paragraph 2 imposes a more stringent obligation than "control", and that this is a reflection of what can reasonably be achieved in engineering terms when faced with the different problems posed by precipitation, surface water and groundwater. However, for the reasons set out above, I do not accept that "prevent" (in paragraph 2 of Annex 1) imposes any greater obligation than:

"stop to the extent that it is possible to do so using engineering techniques such as those described in paragraph 3 of Annex 1."

As mentioned above, on the claimant's interpretation of "prevent" in paragraph 2, since the groundwater could not be prevented from entering a sub-water table site, any landfill site would have to be located above the water table. The possibility of pumping the surrounding groundwater away from the outside of the clay liner was mentioned, but in order to prevent (stop) any groundwater from entering a sub-water table site, all of the surrounding groundwater would have to be pumped away. This would simply result in a reverse hydraulic gradient and the clay liner would not then prevent (stop) leachate from percolating through it in the opposite direction, into the surrounding soil, contrary to the underlying purpose of the Directive (see above).

[30]There is nothing on the face of the Directive itself or in the travauxpreparatoires to suggest that the Directive was intended to ban sub-water table landfills. Since such landfills are not uncommon in the UK and in other Member States (see the evidence of Mr Bliss and Ms Heasman above) one would have expected to see some express reference, perhaps in the recitals, if a ban on such landfills had been intended.

[31]Although paragraph 2 of Annex 1 is concerned with preventing the entry of groundwater into landfills, the primary focus of the Directive is the environmental threat posed by flows of leachate in the opposite direction, from the landfill into the surrounding soil and groundwater. In the EC's proposal for a Directive dealing with landfills, presented on 22nd May 1991, the following explanation was given for the need to prevent water from entering landfills:

"The issue of water entering into a landfill site is extremely important as it concerns not only the formation of leachates but the stability of the site as well. This concern justifies any measures taken to control water entering the site ..."

[32]In simple terms, the more leachate that is produced, the greater becomes the task of collecting and treating it to the "appropriate standard" in accordance with paragraph 2. If leachate escapes from a landfill site because the collection/treatment capacity is exceeded, or because the stability of the geological barrier required by paragraph 3 is impaired, then there is a risk of pollution of the soil, groundwater and surface water. While both surface water and groundwater must be prevented from entering into the landfill, the primary concern is still to prevent untreated leachate flowing out of the landfill. This suggests that groundwater should be stopped from entering a landfill site, whether above or below the water table, to the extent that it is possible to do so, using the techniques (set out in Annex 1) that must be adopted for the purpose of preventing the flow of leachate in the opposite direction. It does not suggest that there is a need for an outright ban on all sub-water table landfills.

[33]The claimant referred to guidance from the Scottish Environment Agency (SEPA) as to the effect of Annex 1. In paragraph 1.1.1 of an Interim Technical Guidance Note dated September 2002, the Agency's counterpart in Scotland said:

"Annex I of the Landfill Directive states that appropriate measures should be taken to prevent groundwater from entering the landfilled waste. This measure can be disapplied for landfill sites classified as inert under the Landfill Directive. SEPA interprets this to mean that in most circumstances sub-water table landfills will not be permitted. However, it may be possible for a landfill to be designed so that groundwater could be prevented from entering the landfilled waste although it may enter the engineered site, eg, drainage blankets/layers could be put in place. However, there would be significant sustainability issues associated with any such proposal and any such design should be subject to careful scrutiny."

[34]Since SEPA was not represented before me I may well be doing its Guidance an injustice, but I am not persuaded that it supports the claimant's contention that "prevent" means "stop". If prevent is so interpreted, it is difficult to see how "it may be possible for a [sub-water table] landfill to be designed so that groundwater could be prevented from entering the landfilled waste", without creating at least equal problems with leachate percolating in the opposite direction (see above). Realistically, there would be no circumstances in which sub-water table landfills could be permitted. SEPA's recognition that it will be possible to prevent groundwater from entering into some (but not most) sub-water table landfills may well be a reflection of a practical engineering, as opposed to a literal, approach to what is required by paragraph 2 in Annex 1.

[35]For these reasons, I reject the challenge on ground (1A). In the real world of large scale engineering operations where measures must be taken to guard against any threat to the environment (as opposed to some abstract or hypothetical world where perfection is attainable) the clay liner required by the permit will "prevent" groundwater from entering into the landfilled waste. Ground (1B) The Groundwater Directive is concerned with "the protection of groundwater against pollution caused by certain dangerous substances." The following recitals explain the background and underlying policy of the Directive, so far as relevant for present purposes. For ease of reference, I have numbered the recitals. [1] Whereas there is an urgent need for action to protect the groundwater of the Community from pollution, particularly that caused by certain toxic, persistent and bioaccumulable substances; [6] Whereas the following should be excluded from the scope of this Directive: domestic effluent from certain isolated dwellings and discharges containing substances in lists I or II in very small quantities and concentrations, on account of the low risk of pollution and the difficulty of controlling the discharge of such effluent; whereas discharges of matter containing radioactive substances, which will be dealt with in a specific Community instrument, should also be excluded; [7] Whereas to ensure the effective protection of groundwater in the Community it is necessary to prevent the discharge of substances in list I and limit the discharge of substances in list II; [8] Whereas a distinction should be drawn between direct discharges of dangerous substances into groundwater and actions likely to result in indirect discharges; [9] Whereas, with the exception of direct discharges of substances in list I, which are automatically prohibited, all discharges must be made subject to a system of authorization; whereas such authorizations may only be delivered after a survey of the receiving environment."

[36]Article 1 explains the purposes of the Directive. "1. The purpose of this Directive is to prevent the pollution of groundwater by substances belonging to the families and groups of substances in lists I or II in the Annex, hereinafter referred to as 'substances in lists I or II', and as far as possible to check or eliminate the consequences of pollution which has already occurred. 2. For the purposes of this Directive:(a) 'groundwater' means all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil;

(b) 'direct discharge' means the introduction into groundwater of substances in lists I or II without percolation through the ground or subsoil;

(c) 'indirect discharge' means the introduction into groundwater of substances in lists I or II after percolation through the ground or subsoil;

(d) 'pollution' means the discharge by man, directly or indirectly, of substances or energy into groundwater, the results of which are such as to endanger human health or water supplies, harm living resources and the aquatic ecosystem or interfere with other legitimate uses of water." Article 2 excludes certain discharges from the requirements of the Directive.

[37]Articles 3 and 4 are as follows. (I have underlined the passage particularly relied upon by the claimant.) "Article 3 Member States shall take the necessary steps to:(a) prevent the introduction into groundwater of substances in list I and

(b) limit the introduction into groundwater of substances in list II so as to avoid pollution of this water by these substances. Article 4 1. To comply with the obligation referred to in Article 3(a), Member States: - shall prohibit all direct discharge of substances in list I, - shall subject to prior investigation any disposal or tipping for the purpose of disposal of these substances which might lead to indirect discharge. In the light of that investigation, Member States shall prohibit such activity or shall grant authorization provided that all the technical precautions necessary to prevent such discharge are observed, - shall take all appropriate measures they deem necessary to prevent any indirect discharge of substances in list I due to activities on or in the ground other than those mentioned in the second indent. They shall notify such measures to the Commission, which, in the light of this information, may submit proposals to the Council for revision of this Directive."

[38]There is no dispute that the leachate within the landfill will contain list I substances. The claimant contends that there will be a direct discharge of list I substances because the leachate within the clay liner will be in direct (water-to-water) contact with the water that will be slowly percolating through the liner to the fill, and will thus be in direct (water-to-water) contact with the groundwater in the surrounding soil outside the liner. The claimant submits that there will therefore be "the introduction into groundwater of substances in list I without percolation through the ground or subsoil": see the definition of "direct discharge" in Article 1.2(b) (above).

[39]In the case of an above water table landfill there would be a layer of unsaturated ground between the clay liner and the groundwater in the saturation zone, so there would be indirect, rather than direct discharge for the purposes of the Directive: see the definition of "indirect discharge" in Article 1.2(c).

[40]In my judgment, the claimant's approach stands the Directive on its head. It is plain from the Recitals and the definition of "pollution" in Article 1.2(d) above, that the Directive is concerned to prevent the discharge of polluting (list I and II) substances into groundwater: the very process that will be prevented by the clay liner coupled with the maintenance of a hydraulic gradient, ensuring that any percolation through the liner will be in the opposite direction, into the landfill. In this context, "discharge" (whether direct or indirect) does not mean "the introduction of groundwater into leachate containing substances in lists I or II."

[41]Dr Woolf submitted that there was no practical distinction between introducing groundwater into leachate containing list I substances, and introducing leachate containing list I substances into groundwater. I do not accept that submission. While the chemical composition of the resulting liquid might well be the same, in the former example the polluted liquid would be contained within a clay liner, where it would be collected and treated to an appropriate standard; in the latter it would be free to pollute the surrounding groundwater, contrary to the underlying purpose of the Directive.

[42]Even if it was appropriate to reverse the direction of flow with which the Directive is concerned, and to treat the introduction of groundwater into leachate as though it was the introduction of list I and II substances into groundwater, it would not be appropriate to describe the water that has passed through the liner into the landfill as "groundwater", since it would no longer be "in direct contact with the ground or subsoil." The claimant submits that the clay liner is simply "ground" which has been moved from elsewhere and placed in position around the void. I do not accept the claimant's proposition that there is no distinction to be drawn between "the ground or subsoil" for the purposes of Article 2, and a clay liner that has been constructed to strict engineering standards. Although the Groundwater Directive preceded the Landfill Directive by some 20 years, the method of protecting the surrounding soil from pollution by leachate from landfills, by the creation of a geological barrier of the kind described in the later Directive, is not new. So far as possible, the two Directives should be interpreted so that they are compatible with each other. In making the later Directive the EC will have been well aware of the requirements of the earlier Directive. In the later Directive a clear distinction is drawn between the "soil, groundwater and surface water" and the "geological barrier" consisting of a "mineral layer" which must be installed to protect them from pollution.

[43]I see no reason not to adopt a similar approach to the meaning of "ground or subsoil" in paragraph 2 of Article 1 in the Groundwater Directive. They are to be distinguished from a geological barrier which has been installed to protect the soil, the groundwater within the soil, and the surface water upon it, from pollution.

[44]Both direct and indirect discharge of list I substances into groundwater must be prevented (see Article 3). The difference between the two forms of discharge is that in the latter case the list I substances will have percolated "through the ground or subsoil" before reaching the groundwater. Although the clay liner is to be distinguished from the ground or subsoil (which it has been installed to protect), the purpose of installing such a liner, with stringent engineering specifications as prescribed by paragraph 3 of Annex 1 to the Landfill Directive, is to make the percolation of leachate significantly more, not less difficult than it would have been if the leachate had simply been allowed to percolate through the natural ground or subsoil.

[45]Even if it were permissible to treat percolation through the liner into the landfill as the introduction of list I and II substances into groundwater, it would be absurd to regard the water that had passed through the liner as though it was akin to list I or II substances that had been able to reach groundwater without having passed through the natural ground or subsoil. Bearing in mind the underlying objective of the Directive, there would be no sensible reason for treating the "discharge" of water that had passed through a geological barrier which had been deliberately engineered in such a fashion as to minimise percolation, as any less "indirect" than the discharge of water that had passed through natural ground or subsoil.

[46]Although there is no binding authority, my approach to the meaning of "direct discharge" in the Directive is supported by certain dicta of Popplewell J in R v Vale of Glamorgan BC and Associated British Ports ex p James [1996] Env LR 102 (upheld by the Court of Appeal in an application for leave to appeal (1997) Env LR 195). ABP intended to redevelop a disused port in Barry, South Wales. The redevelopment site was highly contaminated and ABP proposed to deal with the contamination by removing some material and placing it into a sealed-off dock which had been pumped dry and sealed with a synthetic membrane. The working plan explained the proposals as follows (see page 108):

"(c) Groundwater levels around the disposal facilities are high in relation to the Graving Dock floors. Groundwater flow should a migration path develop through the liner system will be inward with consequently small risk of outward migration of contaminants. ... (d) Pumping boreholes will be provided in the event that liquid levels within the Graving Docks begin to rise and migration of contamination is evident. Pump draw down will, if necessary, maintain positive flow patterns into the docks at all times again protecting the Environment."

[47]As in the present case, pumping would ensure that there was a hydraulic gradient into the void (in that case the sealed docks) containing the waste. It was submitted on behalf of the applicant that the water thereby entering the docks was groundwater and that there would be a direct discharge of list I substances in the dock to groundwater contrary to Article 4.1 of the Groundwater Directive. On page 116, Popplewell J said:

"There are a number of difficulties about this submission. First, nobody has hitherto really addressed their minds to this argument or the factual matrix on which the submission is based. I have grave doubts whether water pumped into the system is groundwater for the purpose of the Groundwater Directive see Article 2. I very much doubt whether water entering into a site which has substances in it is covered by the phrase 'the introduction into groundwater of substances'. It is wholly unclear whether there is going to be percolation through ground or subsoil ... "

[48]The claimant points out that the Judge's reference to "water being pumped into the system" is inaccurate. Water percolated into the docks as a result of the hydraulic gradient created because contaminated water within them was being pumped out. However, it is clear from the remainder of the judgment that Popplewell J was well aware of the proposed process. Rejecting the applicant's application for leave to appeal, Hirst LJ (with whom Otton LJ agreed) said:

"I would add that for my part, it seems to me far-fetched in the extreme to suggest that the pumping of water back into the dock could possibly be treated as the introduction into groundwater of substances, quite apart from the fact that I do not think that looking at the definition of groundwater in the directive, water pumped back into the system falls within that definition."

[49]I agree. For the reasons set out above I can see no sensible basis, whether one adopts a literal or a purposive interpretation of the Groundwater Directive, for concluding that the percolation of water through the clay liner into leachate within a landfill is the introduction into groundwater of list I and II substances, without percolation through the ground or subsoil. It follows that I reject ground (1B). Ground (3) The claimant accepts that the Agency could lawfully conclude that the combination of the clay liner and maintaining a hydraulic gradient would prevent the outward movement of leachate from the landfill. However, she submits that the hydraulic gradient is maintained by pumping, to keep the level of the leachate within the liner two metres below the surrounding water table, that pumping is a "technical precaution", and that it is not permissible to rely on "technical precautions" to prevent (stop) the direct discharge of list I substances.

[50]The claimant accepts that reliance on "technical precautions" to prevent direct discharges is not expressly prohibited by the Groundwater Directive. However, she submits that such a prohibition must be inferred because Article 4.1 requires Member States to "prohibit all direct discharge of substances in list I", with no mention of utilising "technical precautions", whereas in the case of indirect discharges, Member States must subject them to prior investigation, and in the light of that investigation:

"shall prohibit such activity or shall grant authorisation provided that all the technical precautions necessary to prevent such discharge are observed."

[51]The claimant contends that if it had been intended to permit the use of "technical precautions" to prohibit direct discharges, Article 4 would have said as much.

[52]I do not accept the claimant's submissions for the following reasons. The starting point must be the purpose of the Groundwater Directive: to prevent the pollution of groundwater by list I and II substances (see Article 1). To that end, Member States must "take the necessary steps" to prevent the discharge, whether direct or indirect, of list I substances into groundwater (see Recital (7) and Article 3). Pausing there, it is difficult to see why "the necessary steps" should not include taking appropriate "technical precautions".

[53]The claimant submits that Article 4 tells Member States how "the necessary steps" required by Article 3 are to be complied with: direct discharge must simply be prohibited. Again, it is difficult to see why a permit for landfill under the PPC Regulations which not merely prohibited the direct discharge of list I substances, but also required certain technical precautions to be taken in order to give effect to that prohibition should be unlawful.

[54]The words "technical precautions" are very broad. They would include, for example, not merely pumping but all of the measures described in paragraphs 2 and 3 of Annex 1 to the later Landfill Directive. It is difficult to see how a prohibition of direct discharges could be effected save by the adoption of some technical precautions, however basic, if the list I substances were located below the water table, but the Groundwater Directive does not prohibit any activity (such as landfill) which might result in list I substances being beneath the water table. It is enough that they are prevented from discharging into groundwater.

[55]It is true that a distinction is drawn between direct discharges and actions likely to result in indirect discharges (see Recital (7)), but that is because the latter may or may not result in a discharge of pollutants into groundwater. Hence the need to subject any proposal for disposal or tipping of list I substances which might lead to indirect discharge to prior investigation. If the investigation concludes that there will be no such discharge, authorisation can be granted. On the other hand, if the investigation concludes that there is a risk of indirect discharge, then the regulatory authority has a choice: to prohibit the disposal or tipping activity itself, or to authorise it subject to conditions requiring the observance of all the technical precautions necessary to prevent indirect discharge arising from the activity.

[56]In the case of direct discharges there is no need to conduct a prior investigation, since it is plain that they will result in the pollution of groundwater, and there is no choice to be made between preventing the activity which might indirectly lead to a discharge and preventing the discharge itself.

[57]In the final analysis, what matters is that list I substances must be prevented from entering groundwater. In order to achieve this objective, I can see no practical difference between prohibiting a direct discharge, and requiring the observance of all the technical precautions that are necessary to prevent it. Seeking to draw a distinction between "prevent" and "prohibit" in the context of Articles 3 and 4 of the Groundwater Directive is a semantic exercise devoid of reality in the light of the underlying purpose of the Directive and the need to employ technical precautions in order to give effect to any prohibition. The claimant submits that such an approach is contrary to the decision of the ECJ in Commission v Germany

[1991] ECR I-00825

. In paragraph 14 of its judgment in that case the court said:

"The prohibition laid down in the first indent of Article 4.1 is general and absolute and applies to discharges of substances in list I without distinguishing between the substances themselves and solutions thereof. That article does not empower the competent authorities of the Member States to determine, on a case-by-case basis and having regard to the circumstances, whether or not discharges have a detrimental effect."

[58]However, the court in that case was not concerned with the question whether technical precautions could be adopted so as to prohibit/prevent direct discharges of list I substances. The German Government was arguing that list I substances could be directly discharged into groundwater "if there is no reason to fear detrimental effects on groundwater owing to pollution or impairment of the properties of the groundwater" (see paragraph 13). That argument was rejected, but the Agency does not argue that it is acceptable to discharge list I substances into groundwater if an assessment shows that there would be no risk of pollution. On the contrary, the permit requires technical precautions to be observed in order to prevent the discharge (whether direct or indirect) of list I substances into groundwater.

[59]It follows that I reject the claimant's challenge on ground (3). For the sake of completeness, I should mention the fact that the claimant's Skeleton Argument contended that:

"if the technical precautions relied on here - leachate pumping and off-site disposal - were to stop for whatever reason, there would be immediate direct discharge of list Is into the groundwater..."

[60]In her witness statement, Ms Cook points out that:

"... the result of a failure of the pumping mechanism has been modeled. The landfill design would mean that no discharge to groundwater of list Is outside the edge of the engineered liner would be expected to occur for many months (even if any were present in the landfilled waste), because of the properties of the liner. Systems will be in place to detect any rise in leachate levels so that appropriate remedial action can be taken before any environmental harm occurs."

Ground (4) Article 8 of the Landfill Directive requires Member States to take measures in order that:

"(a) the competent authority does not issue a landfill permit unless it is satisfied that: (i) ... the landfill project complies with all the relevant requirements of this Directive, including the Annexes."

[61]Since it will be relevant for the purposes of ground (2), it is convenient to set out sub-paragraph (iv) at this stage:

"(iv) adequate provisions, by way of a financial security or any other equivalent, on the basis of modalities to be decided by Member States, has been or will be made by the applicant prior to the commencement of disposal operations to ensure that the obligations (including after-care provisions) arising under the permit issued under the provisions of the Directive are discharged and that the closure procedures required by Article 13 are followed. ..."

[62]Paragraph 2 of Annex 1 sets out certain requirements in respect of water control and leachate management (see above). Amongst other matters, it requires that:

"Appropriate measures shall be taken, with respect to the characteristics of the landfill and the meteorological conditions, in order to: ... - treat contaminated water and leachate collected from the landfill to the appropriate standard required for their discharge."

[63]Table 9.1.1 in the permit states that:

"The Operator shall: (a) Put forward options for the treatment and disposal of leachate generated at the Permitted Installation having regard to BAT criteria [within 6 months from the date of this permit]. (b) Identify the best available option and submit a report detailing the proposals to implement it for approval by the Agency within 12 calendar months from commencement of landfilling; unless an alternative date is agreed in writing with the Agency."

[64]On 25th February 2005 Onyx submitted a report dealing with Leachate Treatment and Disposal Options. The Report states that:

"Without actual site data on the quality and quantity of leachate it is not possible to define the exact techniques that would be most appropriate for treatment or disposal options. However, once site specific data on the rate of leachate generation and quality of leachate is available it will be possible to commence a more detailed evaluation of the best option for treating and disposing of leachate from the site as is required in accordance with improvement reference 9.1 b) of the permit. Some of the likely options which are being considered for managing (treating and disposal) of leachate are set out below."

[65]The following options are then listed and briefly described: Leachate re-circulation, tankering off-site, discharge of treated leachate to sewer, and discharge to open water course.

[66]Ms Cook explains in her witness statement that:

"74. ... At the time of issuing the Permit, we had been satisfied, in particular on the basis of information supplied as part of Onyx's permit application in the working plan ... that appropriate measures would be taken in order to treat leachate collected from the landfill, in accordance with condition 9.1 of the Permit. 75. The point that could not be sensibly decided, before issuing the permit, was the specification of the precise measures for leachate treatment (the permit conditions already control the permitted head of leachate, the infrastructure for extracting leachate, and the infrastructure and methods for monitoring leachate depth and quality). Under the procedures envisaged by Condition 9.1 of the permit, the precise treatment measures will be identified at a date after the commencement of landfilling (Onyx must identify the best available option and submit a report detailing the proposals to implement it for approval by the Agency). 76. This approach enables the assessment of the appropriate measures to be based on the actual quality and quantity of leachate which is generated at the site, and which cannot be known until then."

[67]The claimant contends that the provisions of Article 8 and Annex 1 referred to above require the proposed leachate treatment disposal methods to have been identified and assessed as appropriate before a permit can lawfully be issued. The submission is confined to an exercise in semantics. No practical reason is advanced as to why the course adopted by the Agency in issuing this permit conflicts with the overall objective of the Landfill Directive (see Recital (12) and Article 1 above). The position would, of course, have been different if the Agency had not been satisfied, on the basis of the material submitted in Onyx's application, that appropriate measures would be taken in order to treat leachate collected from the landfill, and had proceeded to granted a permit "on a wing and a prayer" in the hope that appropriate measures would be devised. That is clearly not the position in the present case.

[68]Unless paragraph 2 of Annex 1 positively forbids such a practice, it will clearly be sensible to ascertain the actual (as opposed to the calculated) quantity and quality of leachate before determining the best disposal and treatment option, provided always that the Agency is satisfied on the basis of the information supplied by the applicant that appropriate treatment and collection measures can and will be taken.

[69]Before issuing the permit to Onyx, the Agency had to be satisfied that the landfill project complied with the requirements in Annex 1. Thus, it had to be satisfied that "appropriate measures shall be taken ... in order to treat contaminated water and leachate collected from the landfill ..." [emphasis added]. The requirement is concerned with measures that are to be taken in the future, once there is contaminated water and leachate that needs to be collected and treated.

[70]I can see no reason, whether linguistic or practical, to construe Annex 1 as imposing a requirement to the effect that "full details of the measures to be taken to treat contaminated water and leachate collected from the landfill ... must be submitted and approved before a permit is issued." Ground (2) Article 8(a)(iv) of the Landfill Directive is set out above.

(c) of the Permit which provides that:

"The financial provision for meeting the obligations under this Permit set out in the agreement made between the Operator and the Agency dated 27th August 2004 shall be maintained by the Operator throughout the subsistence of this Permit and the Operator shall produce evidence of such provision whenever required by the Agency."

[71]The Decision Document explains that:

"5.12 It is the Applicant's responsibility to meet the costs of the obligations under the Permit, including the costs of aftercare. The Agency has assessed the costs likely to be incurred for a period of 60 years post closure, and has provided for the establishment of a contingency fund thereafter. A Performance Agreement has been entered into between the Applicant and the Agency for the provision of a bond to cover the costs of any steps that the Agency may undertake to remove any imminent risk of serious pollution, or in the event of the Applicant's insolvency. 5.13 The Performance Agreement provides that, in the event of the Applicant being wound up or becoming insolvent, the Agency will require the bond secured under the Agreement to be paid out to the Agency. 5.14 The Performance Agreement will remain in force until the permit is surrendered. After 60 years post-closure has passed, a residual sum that is index-linked will be available for any costs incurred by the Agency, although the Applicant will remain responsible for compliance with the conditions of the Permit until the Permit is surrendered."

[72]A copy of the Agreement has been produced. The bonded sum rises from just under £1.25 million at the commencement date to just over £2.6 million after 12 years. After the "restoration date", when restoration of all the phases will have been completed, the bonded sum reduces year by year until, after 60 years (and for subsequent years thereafter) it is just over £227,000. The Agreement contains provisions whereby these sums can be revised to take account of, inter alia, inflation. Clause 2.5 of the Agreement sets out the circumstances in which the bond will be enforceable by the Agency:

"2.5 The Bond shall be enforceable by the Agency upon any of the following events occurring 2.5.1 any work undertaken by the Agency (whether by itself or any other authorised person) pursuant to regulations 26(1) and/or (2) of the PPC Regulations provided that the Agency has in relation to the exercise of powers under regulation 26(2) complied with the requirements of regulations 26(3) and in either case the Agency has served a notice on the Permit holder requesting reimbursement of the Expenses within 5 Business Days of the date of the service of the notice and the Permit holder has failed to pay 2.5.2 failure by the Permit holder to renew the Bond in accordance with Clause 2.2 2.5.3 the Permit holder committing or suffering any act which for the purposes of the Insolvency Act 1986 results in 2.5.4.1 a company voluntary arrangement 2.5.4.2 an administration order 2.5.4.3 a receivership 2.5.4.4 a winding up On the occurrence of the event referred to in Clause 2.5.2 or 2.5.3 the Agency shall be entitled to call upon the entire Bonded Sum (as at the relevant date in accordance with Clause 2.3) and to hold and to use such Bonded Sum if necessary in accordance with its powers under regulations 26(1) and/or (2) of the PPC Regulations in respect of the Permit ..."

[73]One might have thought that this was a fairly comprehensive provision by way of financial security, but the claimant contends that because, for example, the pumping and disposal of leachate may well have to extend far beyond 60 years after the restoration date, by assessing costs over a period of 60 years and making only a residual, or contingency provision for the period thereafter, the Agency could not lawfully have been satisfied that Onyx had made adequate provision to ensure that the obligations (including after-care provisions) arising under the permit will be discharged. In her witness statement, Ms Cook explained that:

" ... it is impractical to make any accurate forecast of landfill time to completion at this stage. Further uncertainties surround the actual cost of aftercare operations that will take place decades into the future. These have been assessed by reference to technologies and techniques available today, but this takes no account of efficiencies and innovations that may be developed during this lengthy period. For all these reasons, a time horizon of 60 years post closure has been subject to specific cost analysis with an in-built contingency to deal with unexpected events. As the uncertainties increase, specific cost analysis becomes less meaningful so a contingency sum is made available thereafter in perpetuity, as a reasonable approach to setting the level of financial provision."

[74]In my judgment, that approach to calculating the quantum of the financial security required in order to make "adequate provision" to ensure that the obligations imposed by the permit will be complied with for as long as necessary is well within the ambit of the discretion conferred upon the Agency by Article 8(a)(iv). There is an air of unreality in this ground of challenge because the claimant does not suggest that the residual or contingency sum, suitably adjusted for inflation, is likely to be inadequate for the purpose of ensuring that the after-care conditions, including the maintenance of pumping, are complied with after the expiration of the 60 year period. If Onyx is still the licence holder, it will be responsible for complying with the conditions and will be subject to the enforcement regime in the PPC Regulations. If it has gone out of business, the Agency will have access to the residual sum: see Clause 2.5.3.

[75]As refined in oral submissions, the claimant's complaint under this ground appears to be this: Although the Agency will be able to enforce the bond, and there is no reason to suppose that the residual sum will be inadequate for any work that the Agency might wish to undertake in order to ensure compliance with the permit conditions, the Agency would be able to enforce the bond only if that work was undertaken pursuant to Regulations 26(1) and/or (2) of the PPC Regulations. Those Regulations provide:

"(1) If the regulator is of the opinion, as respects the operation of an installation ... authorised under these regulations, that the operation of the installation ... or the operation of it in a particular manner, involves an imminent risk of serious pollution, the regulator may arrange for steps to be taken to remove that risk. (2) Where the commission of an offence under regulation 32(1)(a), (b) or (d) causes any pollution the regulator may arrange for steps to be taken towards remedying the effects of the pollution."

[76]By virtue of Regulation 32(1)(b) it is an offence to fail to comply with or to contravene a condition in a PPC permit. The claimant contends that a situation might therefore arise after the expiration of the 60 year period when pumping ceased in breach of licence conditions, but the Agency was unable or unwilling to use the bond to pay for steps to be taken to remedy the failure to comply with the conditions because it was not satisfied that was a risk of either serious pollution for the purposes of section 26(1), or pollution for the purposes of section 26(2).

[77]On the assumption that the Groundwater Directive, or provisions to that effect, are still in force 70+ years hence, it is difficult to see how allowing pumping to cease for such an extended period that leachate escaped from the landfill would not amount at least to pollution, particularly if the leachate still contained list I or II substances. The claimant's concern under this head is more fanciful than real. The Agency was entitled to conclude that Onyx had made adequate financial provision to ensure that the licence obligations would be complied with, notwithstanding the practical impossibility of carrying out any detailed cost analysis for the period more than 70 (60+10) years hence. Reference to ECJ It was submitted on behalf of the claimant that if I was in any doubt about the meaning and effect of the material provisions of the two Directives I should refer the questions of EU law to the ECJ. For the reasons set out above I do not have any real doubt as to the meaning of the relevant provisions. Even if I had been left in some doubt, I would have been most reluctant to exercise the court's discretion to refer a question to the ECJ, given the very substantial delays that have already occurred in this case. It will be remembered that planning permission was granted, and a waste management licence was applied for under the Environment Protection Act 1990 as long ago as 2000. The Agency has considered Onyx's application for a permit under the PPC Regulations for a lengthy period with great care. It is now time to put an end to the continued uncertainty for all parties. Conclusions For the reasons set out above I dismiss the application for judicial review on grounds(1) and (3). While I agree with Sir Michael Harrison that there is no substance in grounds

(2) and (4), having heard the claimant's arguments it seems pointless to refuse permission to apply for judicial review on the basis that those grounds are not arguable. The sensible course is to grant permission to apply for judicial review on grounds (2) and (4), but then to dismiss the substantive application for judicial review on all four grounds.

[78]In conclusion, I would like to thank all counsel for their very comprehensive and helpful submissions.

[79]MR FACENNA: My Lord, in relation to the appeal, I think you indicated to Dr Woolf, who was not able to be here today, that you would accept written submissions. So if the claimant is minded to apply for permission to appeal out of time, my learned friend for the interested party may have something to say about it.

[80]MR JUSTICE SULLIVAN: Yes, thank you, Mr Facenna. There is also a draft order on my desk.

[81]MR FACENNA: Yes, the Agency does apply for its costs. This is a case where the Agency has been totally successful and has won comprehensively on all points. Ordinarily, the general rule, of coures, would apply. We understand the claimant is publicly funded and, in the light of that, we have drafted what appears to be the appropriate order.

[82]MR JUSTICE SULLIVAN: Yes, right. What do you want to say, Mr Martin?

[83]MR MARTIN: Yes, my Lord, the claimant does not resist the application for costs by the Environmental Agency. As to the matter of appeal, as your Lordship knows, Dr Woolf was not able to be here today.

MR JUSTICE SULLIVAN: Yes.

[85]MR MARTIN: No decision has yet been reached as to whether to seek permission to appeal, but we would seek from your Lordship the grant of 14 days from the receipt of the transcript of this decision in order to make any further assessment and make any written submissions.

[86]MR JUSTICE SULLIVAN: What do you want to say about that submission? Mr Facenna, I do not think you have any views about that at all. Probably not? Mr Booth, have you got anything you want to say about that?

[87]MR BOOTH: Thank you, my Lord. My Lord, you already made the observation that this matter has dragged on. Permission was granted in 2000 and the initial application for a planning licence also went in at that stage. As you will be aware from the witness statement of Gerald Owen, he sets out in detail the concerns which the interested parties have about further delays in this matter. Specifically, as you will be aware, at paragraph 99 of his witness statement he sets out that unless work begins, preparatory work begins, in relation to laying the liner by the beginning of June, the work will not be completed this year because it has to be undertaken in the hot weather. That is leaving aside the costs issues which he raised at paragraph 101, setting out the costs which the interested parties are incurring annually by reason of the delay. The fact is, if we do not get a move on, then we cannot deal with it this year, and everything goes back nine months.

[88]What the interested parties would suggest is that written submissions to yourself be filed no later than close of play on Tuesday of next week, and it is Tuesday, 17th May, bearing in mind that 14 days is generally the period and allowing for the filing of the appellant's notice to the Court of Appeal, pursuant to paragraph 52.3. It would seem inappropriate, as far as the interested parties are concerned, to extend 14 days for submissions to yourself and then potentially a further period after that, given the very serious consequences that will have for the implementation of the permit.

[89]MR JUSTICE SULLIVAN: Yes. Of course, there is nothing to prevent Onyx, in the light of this judgment, from taking the view as to the prospects of any appeal being successful and proceeding. It actually can proceed this afternoon or later today if it wants to, can it not, if it wished to do so? There is nothing to stop it.

[90]MR BOOTH: That is, of course, correct, but obviously, as you will be aware, there would be costs implications.

[91]MR JUSTICE SULLIVAN: If the Court of Appeal said I have got it wrapped round my neck the wrong way, they will have lost a lot of money. Yes, I hear your submission. On the other hand, it does seem to me that it feels as though it is a fairly substantial judgment and people will have some time to consider it. I appreciate if Dr Woolf would have been here, being familiar with the case, he would have been in a much better position to be able to decide one way or the other whether to make an application. But it does seem to me, whilst 14 days is a bit ambitious, allowing the claimant seven days in receipt of the transcript, overall the period would be about a fortnight from now when the claimant will have decided whether to make submissions to me. I can then turn them around. So it does not seem to me it will take that long. Obviously, the judgment will speak for itself, but whether or not an application for permission to appeal will be encouraged or not -- What I think I am going to do, unless you have got anything else you want to say --

[92]MR BOOTH: No, my Lord, that is all I wanted to say.

[93]MR JUSTICE SULLIVAN: What I intend to do, Mr Martin, is give you seven days from the receipt of the transcript, which is fairly generous because if Dr Woolf was here, he would do the thing on the hoof, though he would probably be able to because he is very familiar with the case.

[94]What I am going to do in terms of a formal order is to grant permission to apply for judicial review on grounds (2) and (4) and dismiss the substantive application on all grounds.

[95]So far as costs are concerned, I will make an order in the terms of the draft order that has just been placed in front of me, which is what I call the usual Legal Aid order, but I am not allowed to call it that any longer. I give that to the Associate.

[96]So far as permission to appeal is concerned, any application for permission to appeal is to be made in writing to me within seven days of receipt of the approved transcript of the judgment. I give liberty to apply to the parties, just in case something terrible goes wrong so far as transcripts and so forth are concerned. So in other words, Mr Booth, it will mean that if there is some totally unexpected and untoward delay, you will be able to apply, liberty to apply in writing to me, and I can then sort it out. I do not envisage any problem. That meets the bill, does it, so far as you are concerned?

[97]MR MARTIN: Yes, indeed, my Lord. Much obliged.

[98]MR BOOTH: One further matter. Obviously, to date this matter has been expedited. I may be asking for something unnecessary, but if one envisages a situation where an application was made to yourself and was unsuccessful and further application was made to the Court of Appeal, is there any way you can seek that the matter be expedited insofar as the Court of Appeal --

[99]MR JUSTICE SULLIVAN: No. The Court of Appeal does not much appreciate being pushed around by puny judges. It is quite happy for things to happen in the reverse direction, but it does not much like that sort of suggestion. So I am afraid I cannot help you there. What I would be minded to do, and it can cut down the time to appeal, is to renew an application to the Court of Appeal, but the time is fairly limited anyway, it is measured in days rather than a couple of weeks, I think. So, frankly, it is only a gesture to cut it down to seven days, in any event, but at that stage it would then be up to Onyx if it wanted to ask the Court of Appeal to hurry things along to make its pitch to the Civil Appeals Office. That would be the way that would happen.

[100]MR BOOTH: Thank you, my Lord.

Lewis, R (on the application of) v Environmental Agency & Anor [2005] EWHC 1110 (Admin)

(c) of the Permit which provides that:

MR JUSTICE SULLIVAN: Yes.

MR JUSTICE SULLIVAN: Because you get notice of the renewals, you see, and that triggers it.