Court of Appeal rejects challenge to environmental permit for waste incineration plant over error in supporting information

The Court of Appeal last month rejected a claim that an environmental permit granted by the Environment Agency for a waste incineration plant was vitiated by an error made in the permit application.

In Baci Bedfordshire Ltd, R (on the application of) v The Environment Agency & Anor [2019] EWCA Civ 1962 the appellant, a local action group, appealed against an order of Mrs Justice Lang, by which she had dismissed its claim for judicial review challenging the environmental permit granted by the Environment Agency, to the second respondent, Covanta Energy, for the operation of a plant at Rookery Pit, Stewartby in Bedfordshire.

The Rookery Pit Energy Recovery Facility would recover energy from non-hazardous waste through incineration. It would have a capacity of about 585,000 tonnes of waste per annum.

A development consent order was granted for it – as a "nationally significant infrastructure project" under the Planning Act 2008 – on 22 November 2011.

Covanta applied for the environmental permit on 15 February 2017. The environmental permit was granted on 26 January 2018, under regulation 13 of the Environmental Permitting (England and Wales) Regulations 2016.

The single ground of challenge in BACI's claim for judicial review was that the Environment Agency issued the environmental permit unlawfully, on a factually incorrect and scientifically erroneous basis, which was that the measures adopted for dealing with fugitive emissions from incinerator bottom ash would prevent the discharge of potentially harmful heavy metals– such discharge being in breach of the Industrial Emissions Directive and the Environmental Permitting Regulations.

BACI contended there was a risk of the unmonitored discharge of toxic dissolved heavy metals into surface water draining to Stewartby Lake, about 500 metres to the north-west of the site. The lake is within a Nitrate Vulnerable Zone, and is connected to the River Ouse system, which feeds the supply of public drinking water.

The source of the factual error was said to be a sentence in the "Covanta Rookery South ERF Supporting Information" which was provided to the Environment Agency with the application for the permit.

In the High Court, both the Environment Agency and Covanta conceded the error in the supporting information document, but maintained that it had not affected the decision to issue the permit, and that the permit would be effective in preventing the discharge of dissolved heavy metals into the surface water drainage system.

Dismissing the claim, Lord Justice Lindblom (with whom Lord Justice Henderson and Lord Justice Peter Jackson agreed), said: “This is not a case where an obvious or alleged factual error said to vitiate the decision under challenge originated with the decision-maker itself. The error in question was not the result of any fault or omission by the defendant in the proceedings, whose decision is challenged.

“Nor was it adopted or relied upon by the decision-maker in the course of making its decision. And there is no evidence that it misled any third party. In short, there is nothing to show that it had any effect on the decision ultimately made, or that it undermined the decision-making process itself. In my view the judge's analysis and conclusions were correct.”

Lord Justice Lindblom added: “As Mr Guy Williams submitted on behalf of the Environment Agency, the inclusion of an incorrect statement on a matter of science in a document submitted by an applicant for an environmental permit is not, in itself, evidence of the same error being committed by the Environment Agency when exercising its own scientific judgment on whether the proposed facility might cause pollution. And in this case, on a fair reading of the relevant documents, one cannot conclude that when the Environment Agency was determining the permit application, and in particular when considering the efficacy of the measures for dealing with IBA and IBAA, it acted in the false belief that heavy metals do not dissolve in water.

“The clear inference to be drawn from the relevant documents is that it adopted a scientifically sound approach, and kept to that approach throughout. Its decision was not invalidated by false science, or any mistake of fact. The central premise in BACI's argument is mistaken.”

The Court of Appeal judge said the error did not affect the Environment Agency's determination. “There is no evidence to show that it did. The judge was right so to conclude.”