Integrated pollution control - R v Environment Agency and Redland Aggregates Limited ex parte Gibson, R v Environment Agency and Redland Aggregates ex parte Leam and R v Environment Agency ex parte Sellars and Petty (8/5/99) High Court, QBD

United Kingdom
1)Section 7 of the Environmental Protection Act 1990 requires the Environment Agency to consider the "best available techniques not entailing excessive cost" (BATNEEC) and to have regard to the "best practicable environmental option" (BPEO) when reviewing authorisation applications. In two of the cases the Environment Agency considered the BATNEEC/BPEO of the existing process authorisation and of the method proposed in the variation. Mr Gibson claimed the Environment Agency had to conduct a full BPEO survey as Section 11 expressly referred to Section 7. The Court held that the Environment Agency was required to ensure BATNEEC/BPEO standards were met but not to conduct a full enquiry in every circumstance. In the present case the Environment Agency was entitled to have regard to the previous assessment of BATNEEC/BPEO. The variation was regarded, by the Environment Agency, as an environmental improvement in the context of existing BATNEEC/BPEO assessments. Thus the Court rejected Mr Gibson's argument.
2)Mr Gibson's second argument was that the Environment Agency had to consider all relevant objectives relating to the prevention of detriment to amenities. Under The Waste Management Licensing Regulations 1994 amenities issues, such as noise, smell, visual impact and traffic movements, must be considered where a prescribed process involves waste disposal or recovery. Redland Aggregates Limited reserved its position to contest that its use of solvent fuel was a "waste" product, but accepted it was for the purpose of the present case. The Court found that the Environment Agency could not equate its obligations under The Waste Management Licensing Regulations 1994 with BATNEEC/BPEO analysis and was wrong to do so. The Court found, however, that the Environment Agency had inadvertently assessed the amenity considerations and thus Mr Gibson's argument failed.
3)Mr Gibson's third argument was that a separate BATNEEC assessment needed to have been carried out for the waste treatment element of the plant's works. This, he contended, was required under the 1984 EC Framework Directive on industrial air pollution. The Court held that this was unnecessary. The Environmental Pollution (Prescribed Processes and Substances) Regulations 1991 state that only one application is necessary where waste treatment is ancillary to the works of a plant. This was the case here and the Court found that two authorisations for the same process would not be required. In any event, the Court doubted whether a further BATNEEC assessment would have had any effect on the authorisation.

The Court did not consider whether on the facts of the case a change in fuel is a change in use requiring planning permission. (ENDS Report 280, p49)