Challenge to Bedfordshire EfW facility permit

The case, brought by local action group BACI centred on the question of whether an environmental permit for a waste incineration plant incorporated an error made in the permit application, and, if so, what were the consequences in law for the permit?

It was acknowledged by all parties that the applicant’s materials, which were referred to in the permit, was on basic scientific principles, wrong. The question was whether it invalidated the permit or not.

In the information used to support its application to the Environment Agency, the applicant had submitted a dust management plan to address concerns about the generation, transport, storage and treatment of incinerator bottom ash (IBA) on the site. The permit was granted under the Environmental Permitting (England and Wales) Regulations 2016 reg.13.

BACI, represented by Richard Buxton Solicitors, challenged the lawfulness of the permit on the ground that it incorporated a scientific error, in that the applicant’s dust management plan was based on the premise that heavy metals were not soluble in water, a scientifically inaccurate statement on basic principles. The discharge of such metals breached Directive 2010/ art.46(5). The error was contained in para.2.4.5 of a supporting information document provided to the Environment Agency.

In the High Court, the judge held that the error did not affect the lawfulness of the decision to issue the permit. She referred to the judgments in R. (on the application of Mott) v Environment Agency and Levy v Environment Agency, in which references were made to an enhanced margin of appreciation to be afforded to decision-makers in cases involving scientific, technical and predictive assessments.

The issues at the Court of Appeal were whether the judge had (1) misconstrued the permit as incorporating para.2.4.5 without the error contained in that paragraph; (2) misdirected herself on the law relating to mistake of fact; (3) failed to acknowledge that the need for a dust management plan was itself evidence of a risk of polluting emissions; (4) erred in relying on the concept of “margin of appreciation” in concluding that the permit was lawful.

The Court of Appeal found that a scientific error did not invalidate the Environment Agency’s decision to grant the permit. The agency had exercised its own scientific judgement as to whether the proposed facility might cause pollution and there was no evidence that the error had had any effect on the decision reached or undermined the decision-making process itself. Since there was nothing to indicate that the agency had failed in the exercise of its expertise, it was not for the court to explore the scientific integrity of its assessment beyond the normal scope of a public law challenge. The Appeal was dismissed.

Daniel Stedman Jones was the instructed counsel for the Claimant/Appellant.