C & G Concrete Ltd v Secretary of State for the Environment Food and Rural Affairs [2007] EWHC 3522 (Admin)

[2007] EWHC 3522 (Admin)Case No CO/8427/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 6 September 2007
Strand
London WC2A 2LL
B e f o r e:
NICHOLAS BLAKE QC
Between
C & G CONCRETE LTDClaimantv
Between
SECRETARY OF STATE FOR THE ENVIRONMENT FOOD AND RURAL AFFAIRSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
MR STEEL appeared for ClaimantMR MAURICI appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: This an application for judicial review of a permit granted by the West Lindsay District Council following a disputed inquiry conducted by an inspector appointed by the Secretary of State for the Environment, Food and Rural Affairs, in respect of the operation of the claimant's plant, which is best described as a concrete batching plant, that makes ready made concrete and cement for use in construction purposes. The plant has been in long existence at Market Rasen in Lincolnshire, but it was required to comply with a new regulatory regime and, taking the matter very broadly, an issue at the inquiry relating to whether a permit should be granted at all and if so what condition should be attached to it, was the nature of the inspections that the operator of the plant must conduct upon this equipment to ensure that cement dust does not become released into the environment, thereby no doubt creating a hazard, particularly having regard to the fat that the plant is operated in the close vicinity of residential accommodation.[2]The matter crystallises on the two conditions that the inspector imposed as to regular inspections pursuant to the issuing of this operating permit, of the silo plant, a tall structure that has on its top at least two technical features, a lip that houses the filtration process and a valve mechanism which is on top. It is common ground that there is detailed guidance issued by the Secretary of State for blending, packing, loading and unloading and use of bulk cement and that that guidance was in issue and all parties were ring upon it at the hearing before the inspector. That guidance has two distinct parts that have become relevant in this application. In paragraph 5 (15) under the heading "inspection of filtration plant", there is a table called "filtration plant inspection frequency", which says:
"Filter cleaning method, fitted with reverse jet, frequency of visual inspection, at least once a month."
[3]The claimants point out, however, that the at least once a month is then followed by further guidance saying that:
"Reduced inspection frequency of bag filter may be appropriate as follows; (c) for filters fitted with reverse jets or the mechanical shakers where operating experience has demonstrated satisfactory operation of the arrestment plant (d) where process operation is infrequent."
[4]It is, I think common ground that the plant was not in continuous use and only on some occasions per week, which may be less than is always the case in industry standard measures.[5]That nevertheless gives an indication that the guidance of visual inspection of this part of the plant was at least once a month, but could be reduced in certain circumstances. Against that at 6.9 of the guidance note, there is guidance as to inspection of silo events to the external environment, or where silo emissions may escape from inside the building into the external environment."[6]A great many recommendations are made, but the one that is of relevance to the present application reads as follows:
"Seating of pressure relief devices on silos should be checked at least once a week or before a delivery takes place, whichever is the longer interval."
[7]As I read those two guidance’s, therefore, there should be checking of pressure relief devises on silos the least once a week, but there should be checking of reverse jets on silos or wherever they are located at least once a month, but possibly less frequently in certain circumstances.[8]The principal issue in this application for judicial review is that the inspector imposed in condition 9 an inspection regime of the whole silo top that appears to be at odds with the at least once a month guidance at paragraph 5 (15) of the Secretary of State's guidance note, and yet reading the bulk of the report there is little indication in the pre-ambler paragraphs, which have been the subject of analysis and submission today, and I do not read into this report, that there was a particular need to vary from the guidance generally applicable in such circumstances from at least 28 days to once a week, which is what condition 9 ends up with. On reading the report I was troubled by the reasoning process by which that condition was arrived at, since there were arguments placed before the Inspector about the undesirability of more frequent conditions for various reasons, and the Inspector seeks at various points in his report to refer to the 28 standard before, in his final paragraph, he says this:
"I see no need to prescribe the form of log books and find no reason to relax the normal requirement for weekly silo top inspections as set out in PG3104 and as reflected in other permits. I recognise that safety is an important consideration for work at height but the weekly checks need not involve dismantling and the work is required to minimise the risk of potentially polluting dust emissions. It is for the operator to ensure that the conditions are safe on top of the silo and in the actions to it."
[9]I think that refers to the fact that in order to inspect the top of this silo, substantial structure, and an operator has to climb up a protected ladder to have a look at what is going on at the top.[10]The claimant says that that conclusion is a clear error of law, since it departs from the at least 28 days standard, without any reason being given and, moreover, is a misdirection that the normal standard which was not being relaxed was weekly as opposed to effectively monthly.[11]As against that, there is the fact that the inspector was unimpressed with some of the histories of previous inspections of dust accumulation on this equipment, and he himself had made a personal visit which resulted in him describing what he found as "the discovery does not inspire confidence in the appellant's established inspection and maintenance regime". There was further an issue between the claimant and the council at the inquiry as to whether inspection was needed if there was no visible sign of dust getting into the atmosphere. The claimant's approach was you can easily check from a distance if dust is getting into the atmosphere. If there is no sign of that, then you don't need a more intrusive inspection or a more detailed inspection.[12]As I read the burden of the report, and without condescending to the technical details which the inspector no doubt had very considerable advantage over this court, that issue was decided against the claimant and the inspector did consider that what had been going on in the past was not sufficiently close monitoring of the operation of the plant and was intending to impose more stringent conditions than past practice had undertaken. It is in that context that one then goes to the second part of the guidance note, and really it amounts to what is meant by checking pressure relief devices on silos at least once a week. In my judgment, it appears from the totality of the report that the inspector concluded, and was entitled to conclude, that that involved actual inspection from the top of the silo, which is where the devices were inspected. Therefore, an operator was once a week going up or would be required to go up the ladder to get to the top of the silo, to look at that particular parts of the device, the pressure relief devices. In those circumstances, if they were doing that or were going to be required to do that by the terms of the permit, there was no good reason not to also ask them to look at another piece of equipment by visual inspection, the lip, whilst they were up there. That would not involve taking off the lip or any more difficult or mechanical operation on top of the silo that might be undesirable or impracticable.[13]I therefore conclude that the inspector's reference to weekly silo top inspections in 54 must be a reference to the guidance note at 6.9, rather than the monthly or at least once a month at 5 (15). In those circumstances, the additional requirement to look at two things on the silo top does not appear either inconsistent or unduly onerous obligation imposed upon this operator.[14]Nevertheless, it appears to me that there may have been some confusion as to two types of inspection and it equally is apparent that the claimant and the local authority had reached agreement as to the frequency of actually climbing up to the silo to too various things, and it may well be that the local authority upon reflection, recognising some ambiguity in the process by which this condition was imposed, would agree to a variation of that condition to three-weekly inspections, as had been proposed at the inquiry and would appear to be satisfactory. I am therefore in the end not persuaded that the condition of weekly inspections of the silo top was unlawful, in the sense of an unexplained departure from the policy taken as a whole, although it I in my judgment consistent with the "at least once a month" provision and I do not think that weekly and at least once a month sit happily together unless there is good explained reason for it. However, if one is going up to the silo top to check once a week, which I what the inspector seed to think should have been done, then there is very little in the point that one has to look at the lip as well, even though, if it was the lip alone one would not have to do it as frequently as once a week. That is I think common ground. It is what the guidance says. It is what the inspector seemed to think was appropriate for the lip inspection, and it may well be that that can be reflected subsequently by consent to a variation.[15]The other basis upon which relief is sought is condition 11. Here the point can be explained at shorter length.[16]Condition 11 says that operation of the reverse jets serving the filtration system shall be checked for evidence of malfunction at least once every 2 years and corrective action where necessary should be taken without delay. These checks shall include intrusive inspection and testing of the compressed air delivery system, printed circuit board, solenoid switches, diaphragm valves and pneumatic pipe work. Details of the chokes and any other remedial action should be recorded immediately after in the environmental log book."[17]The sort point is that whereas at the inquiry the local authority, the second defendant who does not appear in these proceedings, and the claimant were agreed or virtually agreed that what had to be intrusively inspected was the system as a whole, the condition imposed seems to require intrusive inspection of each of the component parts of the system and in so far as intrusive inspection of certain aspects, such as solenoid switches are concerned, might require as it were taking part things which best remain sealed. When this point was raised on the paper application, which came before Sullivan J, that judge, whose expertise in this particular area is of course acknowledged by all, suggested that it be best pursued by correspondence with the local authority who have the burden of enforcing the Inspector's conditions and that has been done. The correspondence indicates that the local authority interpret, and I consider reasonably interpret, that condition as not involving some of the more oppressive and impracticable inspections of component parts that the claimant feared. I appreciate of course it is the condition 11 which is the objective standard by which the operation of this plant is met, but it as a matter of practicality, if the parties can be agreed and are agreed upon what condition 11 actually means and if that agreement results in some minor variation of the way in which it is expressed in condition 11, that again can be done by an application and consent to the application to vary and in the meantime the claimant does have the protection of the correspondence which gives clear indication of the understanding of what the condition means. So if a fresh environmental health officer were to come along and take a different view, there would be substantial basis for protection of the claimant's legitimate interests in holding the authority to stand by their expressed views as to the meaning of the condition, given by a duly authorised representative in any action.[18]For those reasons condition 11, although it might have been the subject of further debate if there were any other good reason to challenge this permit, does not seem of itself to be a reason to grant judicial review.[19]Mr Maurici who appeared for the Secretary of State submits that variation applications are themselves an alternative remedy which ought to be pursued before applying for judicial review. I don't have to grapple with that sweeping submission as a whole in planning law but in the particular context of this case, given the close relationship to the issues at the inquiry, the practicalities of what conditions 9 and 11 mean and the fact that invoking the machinery of judicial review certainly creates expense and participation of the parties, it seems to me that the parties are sufficiently close on the substantive issues as to make that practical alternative a reasonable one in the context of this case.[20]The final ground upon which judicial review was sought was that the inspector was wrong not to award the claimants the costs of the inquiry, having regard to the fact that the central debate was about conditions whereas the local authority had refused the permit at all and he had not grappled with some of the submissions that were made in support of costs. I regard that claim as truly hopeless, as it appears to me that in the debate about conditions and whether the claimant was going to co-operate with the local authority at all, significant parts of the issues were not found in favour of the claimant and therefore it is not at all a case in which one would have expected to have seen a costs order against the local authority for acting unreasonably in the manner that is required by the regulatory regime.[21]In all the circumstances of this case, therefore, I conclude that there is insufficient prospects of success or otherwise in the interests of justice to grant permission in this case and the minor practical questions which may still be at issue can best be addressed sensibly without further legal costs by further discussions between the relevant local authority and the claimant.[22]I am grateful to all counsel for their assistance.[23]MR MAURICI: My Lord, on costs Sullivan J ordered £1,500 summary costs for the grounds, that is all I seek. Just confirmation that that order is in place.[24]MR STEEL: I just opened up the Mount Cook matters, therefore I don't pursue anything I would otherwise have said.[25]THE DEPUTY JUDGE: I think you can have your AOS costs in that sum, the sum of £1,500. I am grateful to whoever put me right on the wonderful world of cement silos.[26]MR MAURICI: Thank you my Lord.