Walleys Quarry Ltd, R (on the application of) v The Environment Agency [2025] EWHC 521 (Admin)

Case No AC-2024-LON-004231[2025] EWHC 521 (Admin)
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday 4 February 2025
Strand
London
WC2A 2LL
Before
MRS JUSTICE HEATHER WILLIAMS
THE KING
Between
(ON THE APPLICATION OF WALLEYS QUARRY LTD)ClaimantTHE ENVIRONMENT AGENCYDefendant
MR MARK WATSON KC & MR DOUGLAS SCOTT (instructed by Cameron McKenna Nabarro Olswang LLP) appeared for ClaimantMR GWION LEWIS KC & MS JACQUELINE LEAN (instructed by The Environment Agency) appeared for Defendant
JUDGMENT
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[1]Introduction On 28 November 2024 the Environment Agency served a Closure Notice on the Claimant in respect of its site at Walleys Quarry Landfill, Cemetery Road, Silverdale, Newcastle-under-Lyme, Staffordshire (“the Site”), relying upon powers conferred by para 10 of Schedule 10 of the Environmental Permitting (England and Wales) Regulations 2016 (“EPR 2016”).[2]The Claimant has a statutory right of appeal to the Secretary of State for Transport from the Closure Notice and the Claimant submitted an appeal on 6 December 2024. The appeal has recently been listed for a two-week inquiry in May 2025. The institution of the statutory appeal does not have the effect of staying or suspending the Closure Notice: regulation 31(7) of the EPR 2016.[3]This claim for judicial review, which also relates to the Closure Notice decision, was filed on 23 December 2024. By an application notice also filed on 23 December 2024, the Claimant seeks interim relief in the form of an order staying the Closure Notice pending the outcome of the statutory appeal. The application is made on the basis that a stay is urgently required as otherwise the Closure Notice will cause significant financial difficulties for the Claimant as it is projected to become cashflow insolvent by the end of February 2025 and its insolvency will render the exercise of its statutory appeal rights meaningless, thereby infringing its rights under Article 6 of the European Convention on Human Rights (“ECHR”).[4]The application for judicial review relies upon three grounds. In summary they are that: i) The Defendant acted unlawfully in issuing the Closure Notice including Step 1 of Stage 1 of Schedule 2 of the Notice (“Step 1”), which requires the Claimant to “cease accepting waste and do not recommence the acceptance of waste for disposal or recovery at the landfill”. The inclusion of this requirement, it is said, was outside the lawful ambit of the power in para 10, Schedule 10 of the EPR 2016, under which the Defendant purported to be acting (“Ground 1”); ii) The imposition of Step 1 deprived the Claimant of important procedural safeguards that would apply if the Defendant had instead issued a revocation notice in respect of its environmental permit, in particular as the effect of a revocation is suspended pending the outcome of a statutory appeal. Requiring the Claimant to cease its landfill operation by way of Step 1 is a revocation in all but name and an outcome that can only be achieved by the revocation process (“Ground 2”); and iii) The Defendant’s approach to the service of the Closure Notice was procedurally unfair as the Claimant was not provided with an opportunity to make representations or to comment on the steps contained in this Notice. This is particularly significant, it is said, in relation to the inclusion of Step 1, given the operational, environmental and financial consequences for the Claimant of imposing the immediate cessation of waste acceptance at the Site (“Ground 3”).[5]As matters stand, the stay is the only relief sought in the claim form. However, during the course of oral argument, Mr Watson KC indicated that the Claimant would also be seeking an order quashing at least Step 1 of the Closure Notice if the claim proceeded to a substantive hearing.[6]By order of 7 January 2025, Mould J transferred the judicial review claim to the Planning Court and classified it as a significant Planning Court claim pursuant to CPR PD54D.[7]By order of 8 January 2025, Chamberlain J directed that the application for interim relief was to be listed for an oral hearing in the week-commencing 27 January 2025, with a time estimate of 3 hours. The application was duly listed for 29 January 2025.[8]The Defendant filed Summary Grounds of Defence dated 23 January 2024, resisting the claim. The Defendant also disputes the Claimant’s entitlement to interim relief. The Defendant accepts that the Court has jurisdiction to grant interim relief of the kind sought but contends that the strict and established requirements for the grant of such relief are not met in this instance.[9]The background to the Closure Notice, from the Defendant’s perspective, is that the operation of the Site has been the cause of prolonged and heightened levels of hydrogen sulphide (“H2S”) emissions since late 2020 and these emissions have significantly affected the community surrounding the Site and continue to do so. Despite earlier regulatory action by the Defendant, the Claimant has not taken necessary measures to reduce the fugitive emissions to an acceptable level and, in the circumstances, the Defendant considered that service of the Closure Notice was justified and appropriate.[10]Mr Watson contended that the Court should also determine the question of permission to apply for judicial review. Mr Lewis KC was neutral on this point. As I heard fairly full submissions as to the arguability of the Claimant’s grounds, I consider that I am well placed to also address the issue of permission and will do so in this judgment.[11]A document bundle prepared for this hearing comprised (with recent additions) almost 700 pages. Skeleton arguments were filed in accordance with Chamberlain J’s directions.[12]The Claimant relies upon the following evidence: i) A witness statement from Jon Clewes, the Claimant’s Managing Director, dated 23 December 2024 (“Clewes 1”); ii) Witness statements from Stephen Lyon, the Chief Financial Officer of Red Industries and, until 3 October 2024, a director of the Claimant, dated 23 December 2024 (“Lyon 1”) and 27 January 2025 (“Lyon 2”); iii) A witness statement from Aimie Farmer, a Senior Associate at the Claimant’s solicitors, dated 20 December 2024 (“Farmer 1”); iv) An expert report from Leslie Heasman, the Managing Director and a Principal Environmental Chemist at MJ Carter Associates, dated 23 December 2024 (“the Heasman report”); v) An expert report from Peter Dilworth, a Chartered Civil Engineer with Egniol Consulting Limited, dated 22 December 2024 (“the Dilworth report”); vi) An expert report from Michael Denny, the Managing Director of Alvarez & Marsal Restructuring, dated 23 December 2024 (“the Denny report”); and vii) The CTEH report dated 24 October 2024.[13]The Defendant relies upon: i) A witness statement from Nicola Ingrey dated 23 January 2025 (“Ingrey 1”); ii) A witness statement from Steven Roberts dated 23 January 2025 (“Roberts 1”); iii) A witness statement from Christopher Lowe, a Senior Air Quality Adviser and Team Leader in the National Odour Team in the Chief Regulator’s Group at the Environment Agency, dated 23 January 2025 (“Lowe 1”); and iv) An expert report from Campbell Jackson, a Chartered Accountant and a partner in the Forensic & Integrity service department of Ernst & Young LLP, dated 23 January 2025 ("the Jackson report”).[14]The Defendant made an application dated 23 January 2025 to rely upon the evidence that I have just listed for the purposes of this hearing. The Claimant did not object and I grant that permission.[15]By application notice dated 27 January 2025, the Claimant applied for permission to rely upon Lyon 2. As Mr Lewis submitted, some parts of this statement contain expert, rather than factual, evidence. However, Mr Lewis pragmatically agreed that I should admit the entire statement but treat the passages that went beyond witness evidence of fact with caution, rather than seeking to distinguish between the factual and the purported expert evidence in the order that I made admitting the evidence. I will take this course, and accordingly, I will grant the application of 27 January 2025 on this basis. For the avoidance of doubt, where Lyon 2 strays into areas of expert evidence, I have not accorded those passages the weight that I would attach to independent expert evidence.[16]The time allowed for the hearing on 30 January 2025 was fully occupied with counsel’s submissions (which in fact lasted approximately 3.5 hours). This was understandable given the amount of material and the breadth of the issues involved. During the hearing I indicated that I intended to give a “read out” judgment the following Tuesday (4 January 2025), as there would be insufficient time for me to give judgment at the hearing. Both parties were content with this course.

The Court’s jurisdiction to grant the interim remedy sought

[17]It is accepted that section 37 of the Senior Courts Act 1981 gives the Court jurisdiction to grant interim relief of the kind sought.[18]In R (ABC Ltd) v Revenue and Customs Commissioners [2017] EWCA Civ 956, [2018] 1 WLR 1205, the Revenue had refused the claimants’ applications for approval under section 88C of the Alcoholic Liquor Duties Act 1979 to sell controlled liquor wholesale, on the grounds that they were not fit and proper persons to carry on that activity. The claimants had a right of appeal to the First-tier Tribunal (“FTT”), which they had exercised, but the FTT had no power to grant interim relief to enable them to continue to trade pending the hearing of the appeals. The claimants sought judicial review of the refusal of their applications and also sought injunctive relief staying the Revenue’s decision so that they could continue to trade in the interim. At para 61, Burnett LJ (as he then was) accepted:
“(i) The High Court has jurisdiction to grant an injunction maintaining registration pending appeal to the FTT, which has been revoked by HMRC, when a parallel challenge to that decision is made in judicial review proceedings; (ii) The jurisdiction should not be exercised simply on the basis that the person concerned has a pending appeal with a realistic chance of success; (iii) If the decision is challenged only on the basis that HMRC could not reasonably have come to it, the case falls within section 15 of the Finance Act 1994 and the court should not intervene; (iv) If the challenge to the decision is on some other ground outside the statutory regime the court may entertain judicial review or grant interim relief; (v) A definition of the additional element needed is elusive but would include ‘abuse of power’, ‘impropriety’ and ‘unfairness’ as envisaged in the Harley Development Inc v Commissioner of Inland Revenue [1996] 1 WLR 727.”
[19]From para 81 Burnett LJ explained the nature of the jurisdiction as follows:
“81. In my opinion, a statutory appeal against a refusal of approval which is unable to provide a remedy before an appellant has been forced out of business, rendering the appeal entirely academic (or theoretical or illusory in the language of the Strasbourg Court) is capable of giving rise to a violation of article 6 which the High Court would be entitled to prevent by the grant of appropriate injunctive relief under section 37 of the 1981 Act. To that extent, the exceptions enumerated by Underhill LJ in CC&C Ltd [2015] 1 WLR 4043 can be expanded to include cases in which a claimant can demonstrate, to a high degree of probability, that the absence of interim relief would violate its ECHR rights. … … 83. It was no part of Mr Coppel’s case that interim relief should issue automatically even if a claimant could demonstrate that it would not be able to survive the wait for the appeal to be heard. He recognised that factors such as the strength of the appeal and the nature of the concern that led to the refusal to approve would be factors to weigh when considering whether to grant an injunction, itself a reflection of the fact that the Scheme exists to protect the public purse and legitimate traders. … 85. A claimant seeking an injunction would need compelling evidence that the appeal would be ineffective. It would call for more than a narrative statement from a director of the business speaking of the dire consequences of delay. The statements should be supported by documentary financial evidence and a statement from an independent professional doing more than reformulating his client’s stated opinion. Otherwise, a judge may be cautious about taking prognostications of disaster at face value. It should not be forgotten that a trader who sees ultimate failure in the appeal would have every incentive to talk up the prospects of imminent demise of the business, in an attempt to keep going pending appeal. Equally, material would have to be deployed which provided a proper insight into the prospects of success in an appeal. … Finally, there would have to be detailed evidence of the attempts made to secure expedition in the F-tT and the reasons why those attempts failed. Whilst the jurisdiction exists to grant interim relief in this way, its use is likely to be sparing because steps (i) and (ii) identified above should provide practical relief in cases which justify it and the circumstances in which it would be appropriate for injunctive relief to issue will be rare.”
[20]In R (Nourish Training Limited) v Commissioner for His Majesty’s Revenue and Customs [2023] EWHC 350 (Admin), Bourne J reviewed the caselaw in this area. The claimant sought to judicially review the defendant’s decision cancelling its VAT registration with immediate effect. The claimant had a statutory right of appeal to the FTT, which it had exercised, but the FTT had no jurisdiction to grant interim relief. The claimant sought an interim injunction in the judicial review proceedings. In addition to citing from Burnett LJ’s judgment in the ABC case, at para 40 Bourne J referred to the judgment of Julian Knowles J in R (S & S Consulting Services (UK) Ltd) v Commissioners for Her Majesty’s Revenue and Customs [2021] EWHC 3174 (Admin), where he set out the following principles (amongst others):
“(1) In an application for an interim injunction in a public law case, the basic principles which are familiar from American Cyanamid v Ethicon Ltd [1975] AC 936 are applied with some modification [51]. (2) Accordingly, ‘… whether to grant an injunction in a public law case involves the exercise of a discretion which takes all relevant matters into account, including the strength of the case advanced by the party seeking relief, but without applying a rigid test to that aspect, such as requiring a “strong prima facie case”
. The context of the particular decision under challenge, the interests of the public in general that are involved, and the broader legal framework will obviously be important factors for the court to take into account’ [52]. (3) In CC & C Ltd v Revenue and Customs Commissioners [2015] 1 WLR 4043, Underhill LJ said: ‘43. I do not therefore believe that the court is entitled to intervene to grant interim relief where the registration of a trader in duty-suspended goods is revoked simply on the basis that there is a pending appeal with a realistic chance of success. But it does not follow that there are no circumstances in which the court may grant such relief; and, as noted above, HMRC do not in fact so contend. … However, where the challenge to the decision is not simply that it is unreasonable but that it is unlawful on some other ground, then the case falls outside the statutory regime and there is nothing objectionable in the court entertaining a claim for judicial review or, where appropriate, granting interim relief in connection with that claim. … ‘43. I do not therefore believe that the court is entitled to intervene to grant interim relief where the registration of a trader in duty-suspended goods is revoked simply on the basis that there is a pending appeal with a realistic chance of success. But it does not follow that there are no circumstances in which the court may grant such relief; and, as noted above, HMRC do not in fact so contend. … However, where the challenge to the decision is not simply that it is unreasonable but that it is unlawful on some other ground, then the case falls outside the statutory regime and there is nothing objectionable in the court entertaining a claim for judicial review or, where appropriate, granting interim relief in connection with that claim. … 44. In short, therefore, I believe that the court may entertain a claim for judicial review … in cases where it is arguable that the decision was not simply unreasonable but was unlawful on one of the more fundamental bases identified above. Such cases will, of their nature, be exceptional.’”[21]Bourne J also referred to the judgment of Sir Ross Cranston in another removal of VAT registration case, R (Ingenious Construction Ltd) v HMRC [2020] EWHC 2255 (Admin), saying at para 40:
“(6) Sir Ross Cranston ruled that there was a power to grant the injunction sought but (1) the public interest would carry significant weight in the balance of convenience, (2) an applicant would need to establish to a high degree of probability that the absence of interim relief would render its appeal rights illusory and (3) that, following CC & C, an applicant had to show not just a realistic chance of success but something akin to an abuse of power, impropriety or unfairness.”
Bourne J continued:
“(7) Although there were differences between the relevant statutory schemes, these did not mean that there should be different approaches to the grant of injunctive relief [92]. (8) If insolvency were to become a real prospect, the claimant's primary remedy should be to seek further expedition of its FTT appeal [126].”
[22]Counsel did not suggest that an interim remedy of this nature has been granted in the planning context previously, but I accept there is no reason in principle why this could not be the case, provided a claimant is able to establish the criteria identified in these authorities.[23]The authorities show, in summary, that where a legislative scheme has not provided for an appeal against a particular decision or notice to have a suspensory effect, a claimant must surmount a series of high hurdles before this Court will be willing to grant a stay by way of interim relief. In light of the authorities, the parties were agreed that the Claimant had to demonstrate that: i) The grounds for judicial review give rise to a real issue to be tried; ii) These grounds were capable of establishing some unlawfulness that amounted to an abuse of power, impropriety or unfairness; iii) There is a high degree of probability, shown by compelling evidence, that in the absence of interim relief, in light of its insolvency, the Claimant’s appeal rights would be illusory; and iv) Attempts have been made to secure expedition of the statutory appeal and the reasons why those attempts failed. If the Claimant is able to meet these criteria, then the Court has to proceed to assess where the balance of convenience lies, bearing these findings and the public interest very much in mind.[24]In the present case, the criteria I have identified at (i), (iii) and (iv) are in issue, as is the question of where the balance of convenience lies, albeit element (iv) played a secondary role in Mr Lewis’ submissions. Counsel accepted that for the purposes of assessing element (i), I should focus on the three grounds relied on in these judicial review proceedings, rather than the additional grounds raised in the statutory appeal. Mr Lewis indicated that he did not raise any free-standing submissions in relation to element (ii), if the Claimant showed that there was a real issue to be tried, in light of the nature of Grounds 1 – 3 in this case. Both counsel accepted that for present purposes there was no material distinction between the question of whether there was a real issue to be tried and the permission question of whether the grounds were arguable with a real prospect of success.

The Regulatory position

[25]All landfill facilities in England are obliged to comply with the requirements of Council Directive 1999/31/EC on the landfill of waste (“the Landfill Directive”), read with Council Decision 2003/33/EC. The Landfill Directive is implemented in England and Wales through the EPR 2016. The Site is a “regulated facility” under regulation 8(1) of the EPR 2016, being an “installation” carrying on activities specified in Part 2 of Schedule 1 to the EPR 2016. The definition of to “operate a regulated facility” includes to “carry on a waste operation” and an ”operator” is the person who has control over the regulated facility (regulation 7).[26]The operation of the Site as a landfill is therefore prohibited unless authorised by an environmental permit (regulation 12). Regulation 13(1) provides that the regulator may grant the operator an environmental permit authorising the operation of a regulated facility.[27]This Site is required to be operated pursuant to an environmental permit originally granted to Lafarge Aggregates Limited on 9 June 2005 and varied since then (Permit Ref: EPR/DP3734/DC) (“the Permit”). The Permit was transferred to the Claimant (then known as Red Industries RM Ltd) on 3 November 2016. It has been subject to a number of other variations, most recently on 27 April 2023.[28]The Claimant must operate the Site in accordance with the conditions of the Permit. The conditions most relevant for present purposes include: Condition 1.1.1:
“The operator shall manage and operate the activities: (a) in accordance with a written management system that identifies and minimises the risks of pollution, including those arising from operations, maintenance, accidents, incidents, non-conformances, closure and those drawn to the attention of the operator as a result of complaints; and (b) using sufficient competent persons and resources.”
Condition 2.1.1:
“The operator is only authorised to carry out the activities specified in schedule 1, table S1.1.”
The table indicates at A1 that those activities include “Landfill for non-hazardous waste and landfill restoration”. Condition 2.41:
“The activities shall, subject to the conditions of this permit, be operated using the techniques and in the manner described in the documentation specified in Schedule 1, table S1.2, unless otherwise agreed in writing by the Environment Agency.”
This table includes a number of paragraphs of document 3 of report LAF/WY/TD/1138/01 including paragraph 2.11. Paragraph 2.11 of that document addresses de-commissioning and includes:
“i. The landfill will be constructed and operated on the principle of containment. Details of the design of the site are presented in Section 2 of the Working Plan. Following the completion of landfilling and prior to the issue of a Certificate of Completion or equivalent under IPPC the best available techniques for pollution prevention and control will be used tominimise the risk of pollution from the site. The main subjects for pollution prevention and control are leachate and landfill gas management details of which are presented in paragraphs 2.17 to 2.31 and 2.32 to 2.52 of the Working Plan. The techniques for the management of leachate and landfill gas are consistent with the guidance presented in Waste Management Papers 26B and 27. ii. As described in Section 5 of the Working Plan monitoring in the post closure period will be carried out. Consistent with the guidance presented in Waste Management Paper 4 the monitoring will include leachate and groundwater levels and quality, surface water quality and landfill gas. The monitoring will be carried out to confirm the continued effectiveness of the containment system and the measures for leachate and landfill gas management at the site.”
Condition 3.3.1:
“Emissions from the activities shall be free from odour at levels likely to cause pollution outside the site, as perceived by an authorised officer of the Environment Agency, unless the operator has used appropriate measures, including, but not limited to, those specified in any approved odour management plan, to prevent or where that is not practicable to minimise the odour.”
[29]Landfill gas, defined in Article 2(j) of the Landfill Directive as all the gases generated from the landfilled wastes, is a known problem associated with landfill sites. If not properly managed and controlled, landfill gas can pose a risk to the environment and to human health. Annex 1 to the Landfill Directive therefore requires operators of landfill sites to take appropriate measures to control the accumulation and migration of landfill gas, and to ensure that it is collected and burned to generate energy or flared. The requirement is transposed in regulation 35(1) and Schedule 10 to the EPR, which I will return to shortly. It is a requirement imposed on the Site through condition 2.9.2 of the Permit.[30]The Environment Agency is a non-departmental public body, established by the Environment Act 1995. As a body created by statute it must, of course, operate within the powers and constraints conferred and imposed by legislation.[31]Part 3 of the EPR 2016 makes specific provision for the discharge of functions by the Defendant in relation to regulated facilities such as the Site.[32]Parts 4 and 6 of the EPR 2016 grant the Defendant several powers to ensure compliance with the EPR and/or prevent or remedy pollution. These include:(i) a power to serve an enforcement notice (regulation 36);(ii) a power to serve a suspension notice (regulation 37);(iii) a power to revoke a permit, in whole or in part (regulation 22)(iv) a power to take steps to prevent or remedy pollution(regulation 57).[33]Regulation 19 of the EPR 2016 provides that, once granted, an environmental permit continues in force until one of a number of circumstances apply, including surrender and revocation. Regulation 22(1) provides that the regulator may revoke an environmental permit in whole or in part. The regulation continues:
“(2) If the regulator revokes an environmental permit in part, it may vary the permit conditions to the extent that it considers necessary to take account of the revocation. (3) Where the regulator decides to revoke an environmental permit, it must serve a notice on the operator specifying— (a) the reasons for the revocation, (b) in the case of a partial revocation— (i) the extent to which the environmental permit is being revoked, and (ii) any variation to the conditions of the environmental permit, and (c) the date on which the revocation will take place, which must not be less than 20 working days after the date on which the notice is served. (4) Unless the regulator withdraws a revocation notice, an environmental permit ceases to have effect on the date specified in the notice— (a) in the case of a revocation in whole, entirely, (b) in the case of a partial revocation, to the extent of the part revoked.” (a) the reasons for the revocation, (b) in the case of a partial revocation— (i) the extent to which the environmental permit is being revoked, and (ii) any variation to the conditions of the environmental permit, and (c) the date on which the revocation will take place, which must not be less than 20 working days after the date on which the notice is served. (a) in the case of a revocation in whole, entirely, (b) in the case of a partial revocation, to the extent of the part revoked.”
[34]Regulation 23 addresses “steps to be taken after revocation takes effect”. Regulation 23(4) provides that the environmental permit continues to have effect to the extent that it requires the steps to be taken until the regulator issues a certification stating that it is satisfied that all the steps have been taken.[35]Regulation 31 is concerned with statutory appeals. Rights of appeal against the service of enforcement notices, suspension notices, revocation notices and landfill closure notices (amounts other enforcement actions) are conferred by regulation 31(1)(f). Regulation 31(7) states that an appeal does not have the effect of suspending a decision or notice, save “if an appeal is brought against a revocation notice, the notice does not take effect until the final determination or the withdrawal of the appeal”.[36]The powers to serve enforcement notices, suspension notices and to revoke permits apply in relation to all installations and activities which are subject to permit under the EPR 2016. However, Schedule 10 to the EPR 2016 contains specific provisions in relation to landfill sites. Paragraph 10 of Schedule 10 relates to the closure of a landfill. It is a key provision for present purposes. It provides: “10. Closure of a landfill(1) The regulator must set out any reasoned decision under Article 13(a)(iii) of the Landfill Directive in a closure notice served on the operator.(2) A closure notice must, in addition to stating the regulator's reasons for requiring initiation of the closure procedure, specify— (a) the steps the operator is required to take to initiate the procedure, and (b) the period within which they must be taken.(3) The regulator may withdraw a closure notice at any time by further notice served on the operator.(4) Closure of a landfill does not relieve the operator of liability under the conditions of the environmental permit.” (a) the steps the operator is required to take to initiate the procedure, and (b) the period within which they must be taken.[37]Article 13 of the Landfill Directive provides:
“Closure and after-care procedures Member States shall take measures in order that, in accordance, where appropriate, with the permit: (a) a landfill or part of it shall start the closure procedure: (i) when the relevant conditions stated in the permit are met; or (ii) under the authorisation of the competent authority, at the request of the operator; or (iii) by reasoned decision of the competent authority; (b) a landfill or part of it may only be considered as definitely closed after the competent authority has carried out a final on-site inspection, has assessed all the reports submitted by the operator and has communicated to the operator its approval for the closure. This shall not in any way reduce the responsibility of the operator under the conditions of the permit. (c) after a landfill has been definitely closed, the operator shall be responsible for its maintenance, monitoring and control in the after-care phase for as long as may be required by the competent authority, taking into account the time during which the landfill could present hazards. The operator shall notify the competent authority of any significant adverse environmental effects revealed by the control procedures and shall follow the decision of the competent authority on the nature and timing of the corrective measures to be taken; (d) for as long as the competent authority considers that a landfill is likely to cause a hazard to the environment and without prejudice to any Community or national legislation as regards liability of the waste holder, the operator of the site shall be responsible for monitoring and analysing landfill gas and leachate from the site and the groundwater regime in the vicinity of the site in accordance with Annex III.”
It therefore contemplates at (a) three situations in which a landfill closure may be initiated, including a closure initiated by the operator and one initiated by the competent authority – in this case the Environment Agency. (a) a landfill or part of it shall start the closure procedure: (i) when the relevant conditions stated in the permit are met; or (ii) under the authorisation of the competent authority, at the request of the operator; or (iii) by reasoned decision of the competent authority; (b) a landfill or part of it may only be considered as definitely closed after the competent authority has carried out a final on-site inspection, has assessed all the reports submitted by the operator and has communicated to the operator its approval for the closure. This shall not in any way reduce the responsibility of the operator under the conditions of the permit. (c) after a landfill has been definitely closed, the operator shall be responsible for its maintenance, monitoring and control in the after-care phase for as long as may be required by the competent authority, taking into account the time during which the landfill could present hazards. The operator shall notify the competent authority of any significant adverse environmental effects revealed by the control procedures and shall follow the decision of the competent authority on the nature and timing of the corrective measures to be taken; (d) for as long as the competent authority considers that a landfill is likely to cause a hazard to the environment and without prejudice to any Community or national legislation as regards liability of the waste holder, the operator of the site shall be responsible for monitoring and analysing landfill gas and leachate from the site and the groundwater regime in the vicinity of the site in accordance with Annex III.”[38]This provision needs to be considered in conjunction with the material parts of Articles 7, 8 and 9. As material, Article 7 says:
“Application for a permit Member States shall take measures in order that the application for a landfill permit must contain at least particulars of the following: … (g) the proposed plan for the closure and after-care procedures.”
[39]Article 8, as material, provides:
“Conditions of the permit Member States shall take measures in order that: (a) … (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 this Directive are discharged and that the closure procedures required by Article 13 are followed. This security or its equivalent shall be kept as long as required by maintenance and after-care operation of the site in accordance with Article 13(d). Member States may declare, at their own option, that this point does not apply to landfills for inert waste.” (a) … (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 this Directive are discharged and that the closure procedures required by Article 13 are followed. This security or its equivalent shall be kept as long as required by maintenance and after-care operation of the site in accordance with Article 13(d). Member States may declare, at their own option, that this point does not apply to landfills for inert waste.”
[40]Article 9 provides, as material:
“Content of the permit Specifying and supplementing the provisions set out in Article 9 of Directive 75/442/EEC and Article 9 of Directive 96/61/EC, the landfill permit shall state at least the following: … (c) requirements for the landfill preparations, landfilling operations and monitoring and control procedures, including contingency plans (Annex III, point 4.B), as well as provisional requirements for the closure and after-care operations.”
[41]The Defendant indicates – and the Claimant does not dispute – that the majority of landfill closures are initiated by the relevant operators. Closure as a result of a determination by the competent authority – in this case the Environment Agency – are more unusual.[42]By paragraph (5) of Schedule 10 to the EPR 2016, the Defendant must exercise its relevant functions so as to ensure compliance with specified provisions of the Landfill Directive, including Article 9, and also Article 11(1) (which relates to waste acceptance procedures) and Article 13. In exercising those functions, it must do so having regard to Article 1 of the Landfill Directive.[43]The Defendant has produced its own internal guidance on the closure of landfills:
“Progressing operational landfills through definite closure to after-care” (“the Landfill Closure Guidance”). The guidance on closures initiated by the Environment Agency includes the following: “We can start the closure process. This will normally be when the management of an operational site is poor and further operation of the site may result in significant, long-term pollution… Starting the closure process following a failure of the management of an operational landfill is similar toa revocation notice. You must only use it as a last resort once you have exhausted all other enforcement options (e.g., a suspension notice)… When you issue a landfill closure notice, the operator must still comply with their permit conditions. This ensures the operator remains responsible for maintaining active pollution control measures. A revocation notice may provide a similar level of control while it is in place, but its aim is to remove the permit. That is undesirable for a landfill that may present a pollution risk for decades.”
The guidance goes on to list in bullet points a number of “Situations where you may consider closing a site”. These include:
“persistent non-compliance with permit conditions that suggest that the operator is not competent to manage the activity.”
[44]The Landfill Closure Guidance is directed at the Defendant’s officers. The Defendant has also published guidance for operators, entitled “Landfill operators: environmental permits. Close your landfill sites.” The focus of that guidance is upon operator-initiated closures.

The Factual Circumstances

[45]Given the nature of the hearing and the need to give this judgment relatively swiftly, it is only feasible to provide a short summary of the factual circumstances. However, I confirm that I have read all of the witness statements and experts’ reports contained in the bundle, along with the other documentation that the parties referred me to.[46]As part of its role as regulator, the Defendant regularly assesses whether a regulated facility is complying with the conditions of its environmental permit. The outcome of these compliance assessments is recorded in a Compliance Assessment Report (“CAR”) form. The CARs identify any non-compliance with the permit and set out any action that the Defendant expects the operator to take to deal with it. The Defendant says (and as I understand it, the Claimant does not dispute) that since 2019 the Claimant has been subject to more frequent compliance assessments than are normally undertaken in respect of landfill facilities. The level of such assessments further increased in 2021 after there was a substantial increase in complaints from the public that the Defendant received about unpleasant odour emanating from the Site. From February 2021 the Defendant installed a number of monitoring stations (referred to as “MMF” and then a number in the Defendant’s material) in order to gather data. The results of this monitoring are shared on a regular basis with the United Kingdom Health Security Agency (“UKHSA”). Since April 2021, the UKHSA (which was previously Public Health England) has produced monthly Health Risk Assessments based on the off-site air quality monitoring data. These Health Risk Assessments set out (amongst other things): i) The percentage of time during the most recent months when H2S emissions recorded at the MMFs were above the World Health Organisation odour guidance value (7 ug/m3) over a 30-minute averaging period; ii) How the monthly average concentration of H2S recorded at each MMF during the most recent month compares to the long-term health-based guidance value (2ug/m3); and iii) The UKHSA’s advice as to the risk to health due to the emissions.[47]The Health Risk Assessment for the period up to December 2024 (which is exhibited to Lowe 1) says:
“The results for hydrogen sulphide in December 2024 were above the World Health Organization (WHO) odour annoyance guideline value for a significant percentage of the time at all three monitoring sites (MMF Maries Way, MMF Silverdale Pumping Station and MMF Galingale View). Since August 2024, the monthly percentage odour annoyance values have increased overall at all three monitoring sites. Exceedances of the odour annoyance guideline value may result in headache, nausea, dizziness, watery eyes, stuffy nose, irritated throat, cough or wheeze, sleep problems and stress. The more time spent above the guideline, the greater the likelihood of symptoms being experienced and consequently impacting people’s health and wellbeing. All three monitoring sites … show a monthly average concentration in December 2024 above the long-term (lifetime) health-based guidance value. Since August 2024, the monthly average hydrogen sulphide concentrations have increased overall at all three monitoring sites. The cumulative average concentrations for MMF Maries Way and MMF Galingale View are above the long-term (lifetime) health-based guidance value. At MMF Silverdale Pumping Station, the cumulative average concentration is below the long-term (lifetime) health-based guidance value. The risk to long-term (lifetime) health cannot be excluded, where the cumulative average concentrations are above the long-term health-based guidance value. Currently this risk is likely to be small, but the longer the exposure is above the long-term (lifetime) health-based guidance value, the greater any potential risk will become.”
[48]A shorter document from UKHSA (also exhibited to Lowe 1) addresses the Health Risk Assessment of interim air quality monitoring results for the recent period of 6 – 12 January 2025. It includes the following (bolded text in the original):
“UKHSA is aware that residents living near Walleys Quarry Landfill site have experienced increased odour pollution from the site throughout December, continuing into January. The air quality data supplied by the Environment Agency (EA), for our December risk assessment, shows that hydrogen sulphide levels over the Christmas period were substantially above the World Health Organization (WHO) odour annoyance guideline level, with continual periodic high spikes of emissions throughout this time. This is consistent with the increase in local complaints sent to the EA and local authority. … The interim concentrations of hydrogen sulphide for the period 6 to 12 January 2025 were above the WHO odour annoyance guideline value for a significant percentage of the time at MMF Maries Way, MMF Silverdale Pumping Station, and MMF Galingale View. The more time spent above the guideline, the greater the likelihood of symptoms being experienced and consequently impacting on people’s health and wellbeing. Assessment of daily exposure UKHSA has also used the WHO 24-hour air quality guideline value of 150 μg/m 3 to assess daily average exposure to hydrogen sulphide. This value is protective of eye irritation. The weekly raw (indicative) hydrogen sulphide monitoring data for the period 6 to 12 January 2025 has been converted to 24-hour averages for each of the monitoring days. At MMF Maries Way, 24-hour average values were below the WHO 24-hour guideline value of 150 μg/m3. However, at MMF Pumping Station and MMF Galingale, the 24-hour average guideline value was exceeded on three days during the monitoring period: 10 January at MMF Pumping Station, and both 10 and 11 January 2025 at MMF Galingale, with 24-hour average concentrations of 205 μg/m3 and 213 μg/m3 (10 January) and 258 μg/m3 (11 January). Exposure to concentrations of hydrogen sulphide above the WHO 24-hour guideline value may cause irritation of the eyes nose and throat. … Overall conclusions The assessment is that while the risk to long-term health is still likely to be small, short-term transient health effects may be experienced such as irritation to the eyes, nose and throat, in addition to effects resulting from odour such as headache, nausea, dizziness, watery eyes, stuffy nose, irritated throat, cough or wheeze, sleep problems and stress. Individuals with pre-existing respiratory conditions such as asthma and chronic obstructive pulmonary disease (COPD), may be more susceptible to these effects. ... UKHSA strongly recommends that all measures be taken to reduce the off-site odour pollution from the landfill site, to reduce the health impacts experienced in the local community.”
Assessment of daily exposure

Overall conclusions

[49]The Defendant has received and continues to receive a significant number of complaints about odour from members of the public. Tabulated figures were included in the appendices to the Closure Notice Decision Document. Between 1 - 22 November 2024, the Defendant received 1,262 odour reports in relation to the Site.[50]A fuller account of the position regarding the emissions up to 2021 is to be found in Fordham J’s judgment in R (Richards) v Environment Agency [2021] EWHC 2501 (Admin), a judicial review claim brought by a vulnerable child with serious health conditions who was affected by the H2S emissions. A declaration was sought that the Environment Agency was failing to take the measures necessary to protect the claimant from emissions from the Site in violation of his rights guaranteed by Articles 2 and 8 of the ECHR. Although there was a successful appeal in that case, there is nothing to suggest that the Court of Appeal disagreed with Fordham J’s summary of the factual position; see in particular paras 17 – 18 for a summary of the accounts of the impacts upon local people.[51]The Defendant has taken a number of earlier forms of regulatory action in respect of the Site. This includes enforcement notices and on 1 March 2024, a suspension notice. These actions are listed in full at para 12 of the Closure Notice Decision Document.[52]Clewes 1 seeks to put these earlier actions in a context, indicating that various notices were withdrawn following prompt compliance by the Claimant. In other instances, the basis for the regulatory action was challenged. Furthermore, he says the Claimant does not accept that there is a problem to the degree indicated by the Defendant. For example, Clewes 1 says that whilst the Defendant relies upon odour complaints to evidence the risk of serious pollution, these have only been substantiated by Environment Agency officers on a very limited basis, given the large number of inspections that have been carried out. Specifically the list of CARs in relation to the Site indicates that there have only been six occasions where the Defendant’s officers have assessed the circumstances as breaching condition 3.3.1 of the Permits relating to odour. The H2S monitoring data and the conclusions drawn by the UKHSA are also to some extent disputed, as set out in the CTEH report; albeit Mr Watson’s submissions at this hearing realistically focused upon what he said were the limited conclusions drawn by the UKHSA, including that the long-term risk to health was small, rather than on a detailed challenge to that body’s findings.[53]Mr Lewis’ response to the point about the limited number of CARs was that, firstly, the relevant chart showed a number of CARs concerning breaches of related conditions, such as the Odour Management Plan being inadequate; and, secondly, that data showed the level of emissions tended to be higher at night times, when it was unlikely that the Defendant’s inspections took place. He also emphasises that improvements effected at the Site after earlier regulatory action was taken were no more than short-term and had not been sustained.[54]On 4 October 2024, the Defendant notified the Claimant by a “Minded to issue Closure Notice” letter that it considered the management of the Site to be poor and that it was considering serving a closure notice on the ground that further operation of the Site could result in significant long-term pollution. The letter set out a series of ten numbered propositions.[55]The Claimant was given an opportunity to make representations in response and it did so in a 17-page letter from its solicitor dated 25 October 2024, which set out the Claimant’s position in relation to each of those ten points.[56]Having considered the representations, on 28 November 2024 the Defendant decided that regulator-initiated closure of the Site was justified. The Closure Notice was served on the Claimant the same day. The reasons for issuing the Notice were set out in Schedule 1 of that document, which said:
“1. The Environment Agency considers the management of Walleys Quarry Landfill Site to be poor, and that further operation of the site may result in significant long-term pollution from fugitive emissions of landfill gas. 2. The site operator has not installed capping systems or gas collection infrastructure promptly to minimise fugitive gas emissions. In addition, the site operator is not controlling leachate formation adequately or managing surface water to alleviate hydrogen sulphide generation. The site operator has been unwilling or unable to prevent acceptance of waste that has continued to produce hydrogen sulphide. The site operator has failed to manage the phasing and deposit of waste at the site to minimise emissions of landfill gas and facilitate the installation of capping and gas collection infrastructure in a timely manner. The site operator has had ample opportunity to address these shortcomings but has failed to do so. 3. The failure of the site operator to take the measures necessary to reduce fugitive gas emissions, with unacceptable levels of hydrogen sulphide, has resulted in odour pollution over an extended period and a risk to human health experienced by the community, as described by the UK Health Security Agency in its Health Risk Assessments. 4. The Environment Agency has therefore concluded that the site needs to close as the risk of significant odour pollution will continue as long as the site operator continues to accept waste.”
[57]Schedule 2 of the Notice specified the steps that the Claimant was required to take and the time by which they were to be done. Regulation 38 of the EPR 2016 makes failure to comply with such a step a criminal offence.[58]Step 1 of Stage 1 was:
“With effect from 00:01 on 29 November 2024 cease accepting waste and do not recommence the acceptance of waste for disposal or recovery at the landfill.”
This step, as I have indicated, is the focus of Grounds 1 and 2 of this application for judicial review. Stage 1 contained thirteen steps in all, the last of which was to provide the Defendant with a Landfill Closure and After-care Plan, to be completed by 28 February 2025. Stage 2 is to be completed by 30 May 2025 and requires the Claimant to provide the Defendant with a closure report specifying how closure has been achieved and how the activities at the site will be managed, monitored and maintained during the after-care phase.[59]At the hearing on 30 January 2025, the parties were agreed that, as set out in Roberts 1, Steps 1 – 5 of Stage 1 of the Notice have been completed; and Step 6 was required to be completed by 31 January 2025.[60]I have read the Closure Notice Decision Document in full. It sets out a history of odour problems at the site, previous enforcement attempts and the Claimant’s compliance rating history, which has been in Band F (the lowest) for the last 3 years. The document refers to the Landfill Closure Guidance. It expresses the view that the Claimant has failed to satisfactorily improve its compliance and management of the impact of operations outside of the Site boundary. From para 88 onwards, the document discusses other regulatory options, expressing the view that the Agency does not have any confidence that long-term compliance can be achieved by using further statutory notices, given the history. Of the option of revocation, the document says: “A revocation notice may provide a similar level of control to a Closure Notice while it is in place, but its aim is to remove the permit. That is undesirable for a landfill that may present a pollution risk for decades” (para 92). At paras 97 – 98, the document itemises factors in favour and against the issue of a Closure Notice. The latter includes recognition that: “closure will have a significant financial impact on [the Claimants] by taking away the gate fee income stream and this may in turn impact on [the Claimant’s] ability to comply with the requirements imposed by the Closure Notice and after-care requirements”; and that “Negative financial impact on the operator may contribute to it entering insolvency with the associated risk of site abandonment…" The decision document then turns to each of the ten points raised in the “minded to” letter, addressing the Claimant’s responses.[61]Paragraphs 3.3 and 3.4 of the Heasman report identify a number of practical issues and difficulties that are said to arise from the implementation of Step 1 of the Closure Notice. It is also said, at paras 3.5 and 3.6, that the costs of taking this step at the time envisaged by the Defendant are unviable and the fact that substantial volumes of virgin materials (instead of suitable wastes) will be used offends principles of sustainability. The report takes issue with the Defendant’s view that increased emissions of H2S in the landfill gas at the Site comes from recently deposited waste. The expert also identifies various criticisms in respect of Step 2 of the Closure Notice, concluding that “there are immense difficulties as to how Step 2 could be safely designed, risk assessed, planned, approved and implemented in the specified time”.[62]As I indicated to Mr Watson during his oral submissions, I am not in a position at this stage to evaluate the competing expert evidence relating to these kinds of issues. As it was, even without going into these technical matters, counsel’s submissions exceeded the 3 hours allowed for this hearing. Plainly these matters will be relevant to and considered as part of the statutory appeal. In terms of the matters before me, they only have a bearing on the balance of convenience issue, which I am in any event in a position to address.[63]The Grounds of Appeal submitted for the statutory appeal fall into two parts. Part 1 raises various legal issues. Grounds 1, 2 and 5 reflect the three grounds raised in these judicial review proceedings. In terms of the legal grounds, it is also said that the Steps in the Closure Notice are not sufficiently clear; that the practical effect of the Closure Notice will not prevent or negative effects on the environment; and that the Defendant exercised its powers in an oppressive way. Grounds 8 – 11 are factual grounds challenging the first three reasons relied upon by the Defendant in the Closure Notice Decision Document. Ground 12 contends that the steps set out in Schedule 2 of the Closure Notice are unreasonable, both in substance and in respect to the period of time within which they are to be undertaken.[64]A Pre-Action Protocol letter dated 6 December 2024 was sent to the Defendant. This elicited a substantive response dated 12 December 2024.

The Claimant’s Grounds for Judicial Review

[65]As regards Grounds 1 and 2, the crux of the Claimant’s submission is that the reference in Article 13(a) of the Landfill Directive to “the closure procedure” is a reference to the “provisional requirements for the closure and after-care operation” included in the permit grant in compliance with Article 9(c) of the Directive. In turn, it is said that the references in para 10(2) of Schedule 10 of EPR 2016 to the “initiation of the closure procedure” and to the “steps” the operator is required to take “to initiate the procedure” are references to the closure procedure that is incorporated as an operating technique in the landfill permit. Accordingly, submits Mr Watson, the Defendant has no power to impose steps in the Closure Notice that go beyond the steps envisaged by that closure procedure (save to the extent that revisions to this closure procedure have been approved by the regulator during the course of the permit).[66]In the present instance, the closure procedure that was incorporated as an operating technique in the Claimant’s permit does not extend to requiring the immediate cessation of the acceptance of waste at the landfill.[67]Mr Watson further submitted that this approach was consistent with the proper interpretation of the requirements to take “steps” elsewhere in EPR 2016, for example in relation to enforcement notices in regulation 36(2)(c), which refers to “steps that must be taken to remedy the contravention or to ensure that the likely contravention does not occur”. “Steps,” he said, do not extend to cessation of the authorised waste operation.[68]Mr Watson also emphasised that the requirement for immediate cessation of waste acceptance for disposal at the Claimant’s landfill goes to the very heart of the authorised operation under the permit. He said it amounts to extinguishment of the lawful activity or operation (i.e. landfill) that is authorised by the permit; and he said that this equates to a revocation of that legal authorisation. However, the EPR 2016 is carefully drafted so that a lawfully authorised waste operation under regulation 13 may only be extinguished at the behest of a regulator by the revocation process in regulation 21. Moreover, in recognition of the consequences of such enforcement, a revocation notice does not come into effect in a period of less than 20 working days (regulation 22(3)(c)) and the effect is suspended pending an appeal (as I have referred to). Mr Watson said that Parliament cannot have intended landfill closure notices to have equivalent (or more egregious, in respect of immediacy) consequences to revocation notices, without providing equivalent procedural safeguards. He also pointed out that, pursuant to regulation 19, a permit continues in force until it is revoked; whereas he says the Defendant’s actions have brought the permitted activities to an end by an indirect method that is not contemplated by the EPR 2016.[69]Mr Watson further argued that the Defendant’s approach is based on a fundamental legal misconception regarding the nature of revocation. Paragraph 92 of the Closure Notice Decision Document (which I have already read out) and passages in the Environment Agency’s guidance indicate that the Defendant’s position is that a revocation notice served pursuant to regulation 22 EPR 2016 is not apt in respect of a landfill because “its aim is to remove the permit … [and] that is undesirable for landfill that may present a pollution risk for decades”. However, he says this fails to take account of the very flexible powers which are built into regulation 22, which permit revocation “in part” (regulation 22(1)), or “variation” of the permit (regulation 22(2) and 22(3)(b)), and the imposition of the “steps” contemplated by (regulation 23). Further, as regulation 23(4)(b) makes clear, partial revocation does not remove the permit in its entirety, or the conditions attached to it, save insofar as they are revoked. Accordingly, it is said that the Defendant’s decision that revocation was not an appropriate enforcement mechanism in the context of a landfill is legally unsustainable.[70]Thus, says the Claimant, the Defendant’s decision to serve a Closure Notice with requirements which could only properly be achieved by revocation is contrary to the statutory scheme and has the effect of depriving the Claimant of the legitimate procedural safeguards which it should have been afforded under regulations 22 and 31 of the EPR 2016.[71]In respect of Ground 3, Mr Watson submits that the Defendant failed to give the Claimant any opportunity to make representations as to the contemplated requirements of the Closure Notice and specifically as to the immediate cessation of waste acceptance, which was not mentioned in the “Minded to” letter. This was despite the fact that the Closure Notice Decision Document expressly contemplated insolvency (in the passages that I have referred to). The context – including the serious economic consequences for the Claimant, the penal sanctions for non-compliance, the strict time limits that were set out in relation to the steps and the fact that the Claimant was only given 14 hours’ notice in respect of Step 1 – all means that fairness required this opportunity to be given.

Real issue to be tried / arguable grounds

[72]I do not accept that these grounds are arguable or that they raise a real / serious issue to be tried.[73]As the Defendant submits and I accept, this ground of challenge proceeds on a misunderstanding of the closure procedures within the EPR 2016, their relationship with other powers under the EPR 2016 and the closure process itself.[74]The Claimant’s key submission that a Closure Notice can only require the initiation of the operator’s own extant closure plan as submitted and approved as part of the permit granting process is not borne out by the legislative provisions and would make no sense in the context of a regulator-initiated closure that will require a bespoke closure plan to be prepared and approved to deal with the irregularities that triggered the service of the Closure Notice.[75]As the Defendant submits, when it granted the permit, specifying as it did, section B2.11 on “De-commissioning” as a required “Operating Technique”, it did so on the assumption that the landfill would be managed properly and in accordance with the Permit. It was not addressing a scenario where concerns over emissions and poor management had got to a level that had led it to take the relatively rare course of determining to issue a Closure Notice. In this regard, I also note that the text of section B2.11 is in very general terms – it does not set out a step-by-step plan for the kind of closure process that the Defendant envisages as necessary.[76]This position is further reinforced by the fact that the Landfill Directive only requires the Permit to provide, as a minimum, for “provisional requirements for the closure and after-care operations” (Article 9(c)). As I have noted, the Claimant accepts that a closure and after-care plan may be developed (with the agreement of the regulator) during the lifespan of the landfill. However, that may or may not have occurred in any particular instance. If the plan has not been developed in that way, the proposition that a regulator-initiated closure must be confined to the limited steps identified in the pre-permit “provisional” plan is particularly jarring, in circumstances where the landfill site will not be in the condition that the provisional closure plan contemplated.[77]Furthermore, the language of Article 13 itself does not support the Claimant’s interpretation. The opening words of that Article refer to measures being taken in accordance with the permit “where appropriate”. Having regard to the three specified scenarios where the closure procedure may be started that Article 13(a) goes on to list, this would be “appropriate” in respect of an Article 13(a)(i) operator-initiated closure “when the relevant conditions stated in the permit are met”. However, it is hard to see how this would be “appropriate” where the closure is initiated by the decision of the competent authority, for the reasons that I have just identified. Moreover, the qualifying phrase “where appropriate” must have been included in the Directive for a reason. It is difficult to discern the purpose of its inclusion if it is not for this reason. If a closure was always to be undertaken in accordance with the closure and after-care requirements of the permit, Article 13 could have – and in all likelihood – would have said that. Moreover, on any view, “where appropriate” must in some way caveat the Claimant’s suggested interpretation that “the closure procedure” is that and only that which is spelt out by the permit.[78]When I put this point to Mr Watson during the course of oral argument, he acknowledged that the Closure Notice could in fact include further requirements that were not in the permit. However, he said this could not extend to a step as fundamental as a requirement to cease accepting waste. I will come to the latter contention shortly, but it is important to note both that his significant concession in this regard undermines a number of the planks of the Claimant’s arguments and, once it is accepted that the regulator can add steps in the Closure Notice that are not spelt out in the permit, it is difficult to see why a line should be drawn between a requirement to stop accepting waste and other steps that the Claimant apparently now accepts could be included. I cannot detect anything in the statutory language that would warrant drawing such a distinction.[79]As I have explained, Mr Watson also advanced an argument based on what he said was the restricted meaning of “steps” in the EPR 2016. However, the sheer fact that other kinds of “step” are referred to in respect of other enforcement processes – regulation 36(2)(c) in relation to enforcement notices being the example given – does not in itself alter or confine the otherwise broad meaning of the word “step” itself. Self-evidently different processes or forms of enforcement may require different “steps”. Furthermore, where a particular form of step is contemplated, such as in regulation 36(2)(c), the legislature has specified the nature of that step, but it has not done so in a restrictive way in Schedule 10, para 10(2).[80]The Defendant submitted with force that the cessation of the acceptance of waste at a landfill site is a necessary first step in initiating its closure by a regulator. As I have said, nothing in Article 13 of the Landfill Directive or Schedule 10 para 10 to the EPR 2016 supports the proposition that the “steps” required to be taken in a regulator-initiated closure notice cannot include the cessation of the acceptance of waste. Indeed, it is difficult to see how there would be a meaningful commencement of the process to close the landfill if it is still accepting waste for disposal.[81]As regards the submission that the cessation of waste disposal can only be achieved by the service of a revocation notice, I accept Mr Lewis’ point that this approach is inconsistent with para (4) of Schedule 10 of the EPR 2016, which explicitly proceeds on the basis that the permit and its terms continue to subsist after a Closure Notice is served and makes no reference to revocation.[82]As Schedule 10(4) is predicated on the basis that the permit continues, this also underscores that the closure notice procedure is not simply revocation by another name. The Claimant is incorrect in submitting that service of a Closure Notice with Step 1 included has the practical and legal effect of bringing about the immediate revocation of the Permit; as the Defendant has explained, the Permit and its conditions remain in force.[83]Whilst it is correct that a revocation notice may be partial and that post-revocation requirements may be imposed (as I have indicated), the closure notice process is specific to landfill sites, where the ongoing risks of decomposing materials may continue for many years and where, accordingly, as Mr Lewis submitted, it is important that the permit and its requirements continues to subsist and that this is clearly understood. It also follows that I do not accept that there is any force in the suggestion that the Defendant has misunderstood the nature of the revocation process in the text that appears at para 92 of the Closure Notice Decision Documents. Indeed, even if it had, I do not see how that would assist the Claimant’s Grounds 1 or 2, given I have accepted that the language of Article 13 and Schedule 10 para 10 permits the inclusion of Step 1 in this Closure Notice. At most, an alleged misunderstanding of an alternative option on the part of the Defendant would go to an argument about the rationality or reasonableness of the decision to serve a Closure Notice – an issue that has not been raised in these proceedings.[84]I mention for completeness that while both parties sought to draw support for their arguments from various passages in the Environment Agency’s guidance, I did not find this text to be of direct assistance, as I have to determine the meaning of the material wording of Article 13 of the Landfill Directive and Schedule 10 para 10 of the EPR 2016 from an objective standpoint.[85]Mr Watson accepted during oral argument that Ground 2 is parasitic on the success of the arguments advanced in respect of Ground 1. I agree. If the Defendant was entitled to include Step 1 of this Closure Notice, as it was not out with its statutory powers to do so, it is difficult to see what Ground 2 adds. The sheer fact that use of the revocation procedure may have been more favourable to the Claimant as it would have enabled it to continue to receive waste until after the appeal was heard does not mean that the Defendant was obliged to take that route.[86]As regards Ground 3, there is no general requirement for a person who is the subject of contemplated regulatory action to be notified of this in advance and given the opportunity to make representations as to the steps that might be required of this person if the regulatory action is taken. The EPR 2016 does not confer such a right and the Claimant has not identified any caselaw that supports the existence of such a right.[87]It is also noteworthy that the Defendant did give the Claimant advanced notice of the proposed intention to issue a Closure Notice and the opportunity to make representations in advance – an opportunity which was utilised in the 17-page response letter that was submitted on behalf of the Claimant (as I have already indicated).[88]The Claimant submits that its expert evidence demonstrates that there were significant matters that it could and would have raised had it been given the opportunity to make submissions on the steps to be included in the Closure Notice, setting out these matters in some detail at paras 81 – 92 of the Statement of Facts and Grounds. However, this does not avail the Claimant if, as I have accepted, it did not have a right to make such representations in the first place. It can put its expert evidence before the Inspector in the statutory appeal.

High degree of probability that the Claimant is unable to exercise appeal rights through insolvency

[89]In light of my conclusion on the preceding issue, the application for interim relief fails. However, I will also consider whether this requirement has been satisfied, in case I am thought to be wrong on whether there is a real issue to be tried on any of Grounds 1 – 3.

The Claimant’s evidence and the contentions

[90]The evidence that the Claimant relies upon in this regard is provided in Lyon 1, Lyon 2 and the Denny Report. Mr Lyon has overall responsibility for the Claimant’s financial operations; he reviewed the pertinent financial documents and produced a short-term cashflow forecast (“STCFF”) for the following 15-week period, which he has subsequently updated. He says that the majority of the Claimant’s revenue is derived from landfill sales in respect of the Site, so that requiring the Claimant to cease all waste acceptance at the Site has deprived it of its predominant source of income and, in the circumstances, it is inevitable, based on current predictions, that cash will run out inthe last week of February 2025, so that the Claimant will be cashflow insolvent by the end of February 2025.[91]Mr Denny’s report contains the usual declaration required of an independent expert. He was provided with the documentation referred to in Lyon 1. Following his review of these materials, Mr Denny concluded that the STCFF shows that, absent a resumption of trading activity, the Claimant’s cash resources “appear likely to be exhausted within the next three months”. The sensitised STCFF indicates a cash shortfall of £43,000 in the week ending 16 February 2025 and a shortfall of £296,000 in the week ending 2 March 2025.[92]As Mr Lyon explains, and Mr Denny sets out in his report, the Claimant was, until recently, part of the Red Industries Group (“Red”), but undertook a statutory demerger in May 2024. Following this, Renewacore was formed as a non-trading holding company. The Claimant is the only trading entity within this new Group and operates without any cross guarantees in place with Red.[93]Mr Denny notes that the Claimant is the subject of approximately £80.8 million of disputed claims against it by HMRC, which are the subject of appeals and other challenges. A review outcome in relation to claims amounting to approximately £75.1 million of this figure was expected by 18 January 2025, but I was informed at the hearing that the outcome of this will not now be known until some point in February 2025. Mr Denny also notes that payments in excess of £1 million in relation to corporation tax will fall due to HMRC over the 15-week period that he has considered.[94]Costs incurred in discharging the remedial obligations in the Closure Notice and payable during the forecast period are indicated by the Claimant to be £718,000.[95]Mr Denny indicates that the Claimant has also confirmed that there are no shareholder funds available to meet any cash shortfall. It is said that the Claimant’s only borrowing facility, with HSBC, has been put on stop by the bank, following the service of the Closure Notice. Mr Denny also notes that in the current financial year, the Claimant wrote off £8.9 million, a non-cash item relating to a promissory loan due to the Claimant from group companies prior to the de-merger.[96]The Denny Report acknowledges that the claimant has a source of continuing income from CLP, a gas contractor based on the Site, which collects gas generated from the landfill and sells it to utility companies. It pays the claimant a monthly royalty of £70,000 in relation to this.[97]The most recent STCFF is dated 22 January 2025. In essence, Mr Lyon says that it confirms the picture shown by the earlier material and the Denny Report.[98]Accordingly, Mr Watson submits that the evidence shows that the Claimant will become cashflow insolvent in a matter of weeks, unable to trade and unable to pay its creditors. That, in turn, it will be unable to exercise its right of appeal, rendering the right to appeal entirely academic and in turn, leading to a violation of the Claimant’s Article 6 ECHR rights, if interim relief is not granted.

Conclusions on financial viability

[99]I do not consider that the Claimant has shown by compelling evidence that there is a high degree of probability that it will be unable to exercise its rights of appeal through insolvency. There are a number of shortcomings and unsatisfactory aspects to the Claimant’s evidence. The Jackson report highlights a substantial number of issues. It is sufficient for present purposes to confine my reasoning to the points that Mr Lewis developed in his oral submissions, which I accept.[100]Firstly, Mr Denny includes a number of significant caveats in his report. He has not undertaken any sort of audit; he is reliant upon the accuracy and the completeness of the information provided by the Claimant. It will be recalled that in the ABC case, Burnett LJ said that the statement from a director of the business should be supported by documentary financial evidence and “a statement from an independent professional doing more than reformulating his client’s stated opinion”. It is not clear to me that Mr Denny has done much more than this.[101]Mr Denny also records that he has not been asked to comment on historical information. Mr Watson suggested that this did not matter as the assessment is forward looking. However, I accept Mr Lewis’ submission that this wider review would be important in testing assumptions that have been made, for example, in relation to payments to creditors. It would also be relevant to a consideration of the causes of the Claimant’s current financial situation. As Bourne J’s decision in Nourish Training underscores, the claimant not only has to show a high degree of probability of impending insolvency, but that this situation results from the matters complained of (that is to say, the regulatory decision that it seeks to challenge on appeal): see para 69 of Bourne J’s judgment. Mr Jackson observes that a historical review is a fundamental part of the cashflow analysis.[102]The limits of the exercise that Mr Denny was able to undertake are also reflected in the disclaimers to his report. The disclaimers indicate that it has been prepared “solely on the instruction of the Company” and also includes the following:
“Except to the extent otherwise stated in our report, our work has been carried out on the basis that any information supplied (whether or not in writing and by Management or otherwise) to A&M and on which our work is based is complete, accurate and not misleading. Documents relied upon are referenced in the body of the report and at Appendix 3 as appropriate. All documents provided are assumed to be original or otherwise true and accurate copies. We have not tested, nor been asked to test, the accuracy and integrity of the documents and information provided to us. We take no responsibility for the integrity of documents, data, or other information provided as part of this engagement. A&M has not performed anything in the nature of an audit nor, except where otherwise stated, have we subjected the financial or other information contained in this report to checking or verification procedures. Because A&M’s services are limited in nature and scope, A&M cannot be relied upon to discover all documents and other information or provide all analyses that may be of importance in this matter. There is no assurance that all matters of significance will be disclosed by A&M’s work. A&M assumes no responsibility for the realisation of any projections.”
[103]Secondly, Mr Denny indicates that his instructions were to consider “the possible downside sensitivities and mitigations in relation to cashflow assumptions and highlighting their impact on the forecast,” in other words, sensitivities that might have a negative impact on the Claimant’s cashflow. It is unclear why he was not asked to consider and apparently did not take account of upside sensitivities – another point highlighted in the Jackson Report.[104]Thirdly, it is not at all clear that the Claimant has taken appropriate steps to seek alternative sources of funding. To take the HSBC example, Mr Lyon exhibits an email from HSBC sent on 14 January 2025 that does not in fact suggest that the door has been closed on the possibility of a loan. Rather the emails says that the loan facility “is not withdrawn per se, simply the ability for you to draw is temporarily removed … until a point we have a clear way forward / resolution”. Strikingly, there is no indication at all as to what the Claimant has done since receiving this email to take this forward with HSBC, nor any indication as to what steps, if any, it has taken in relation to contacting other potential lenders.[105]Fourthly, the STCFF assumes the Claimant will pay £152,000 of shareholder fees to Renewacore during the 15-week forecast period, but no evidence or explanation has been provided as to the nature of these shareholder fees, their amount, why they would be incurred during this period or whether any flexibility as to the timing of their payment has been explored.[106]Fifthly, it has not been explained why the forecast has been limited to the seemingly arbitrary 15-week period.[107]Sixthly, it appears that there are other potential causes for the Claimant’s current financial position that the evidence does not rule out and that are independent of the impact of Step 1 of the Closure Notice. In particular, the recent write off of the very large sum in promissory notes and also the very substantial sums owed to the Revenue.[108]In short, the evidence falls well short of the high threshold test that must be met in this instance.

Expedition of the statutory appeal

[109]As the appeal has now been listed for May (a date earlier than anticipated), I would not have dismissed the application on this basis, if the Claimant had been able to establish the other requisite criteria. That said, I note for completeness, there is some force in Mr Lewis’ point that the emails sent by the Claimant’s solicitors do not convey the degree of urgency that might have been expected in circumstances where the Claimant, it is said, was about to be deprived of the appeal by insolvency and in breach of its Article 6 ECHR rights.

Balance of convenience

[110]As this consideration does not in fact arise in light of my earlier conclusions, I will deal with it relatively briefly.[111]Mr Watson accepted that the public interest is to be given significant weight at this stage. However, he emphasised that UKHSA considered the long-term health risks from emissions from the Site to be “small”. He said that the Claimant now only sought to stay the Closure Notice Steps until the determination of the statutory appeal (as opposed to any subsequent appeal from that decision, as was originally proposed); and it was open to the Defendant to impose other regulatory requirements for this interim period. As the appeal was likely to be determined by June, this was a relatively short period of time. He also relied upon the impact of Step 1 on the Claimant’s source of income and thus the viability of its business.[112]I am not persuaded by these contentions. There is a strong public interest in ensuring that the Environment Agency can perform its statutory functions – here of exercising the powers conferred on it by Parliament for the protection of the environment and the regulation of landfill sites and in a context where Parliament has not provided for any power to stay the effect of a closure notice pending an appeal.[113]The Defendant has attempted lesser regulatory action on a number of occasions in the past, with no more than limited, temporary success and there is a body of evidence indicating a history of poor management at the Site.[114]The public interest also arises in terms of the interests of third parties, namely those living in the area of the Site. Even if the risks of long-term adverse health effects are small, there is clear and recent evidence of the potential short-term health effects upon those in the locality from the fugitive landfill gas emanating from the waste on the Site, as I have already summarised. In addition to the impact upon health, the evidence, including the large number of complaints received by the Defendant, indicates that odours from the Site have caused a great deal of unpleasantness for those living in the local community over a protracted period of time. This public interest dimension is reinforced by Fordham J’s finding in Richards (that was not overturned on appeal) that the Defendant was under the positive operational duty arising under Article 8 of the ECHR to take reasonable steps to protect the claimant in that case in light of the impact on his home, family life and health.[115]In terms of the other factor prayed in aid by the Claimant, I have already addressed the unsatisfactory nature of the evidence relating to the Claimant’s insolvency.[116]Accordingly, I am also quite satisfied that the balance of convenience lies in favour of refusing the interim relief that is sought. Now that the Claimant has undertaken the first five or six steps prescribed by Schedule 2 of the Closure Notice, emission levels are expected to reduce, with consequent improvements for the local community.

Conclusion

[117]I therefore refuse the application for interim relief and refuse permission to apply for judicial review. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk

Cited in 1 later judgment