Appeal judgement gives lift to 'piggybacking' landfills

The Court of Appeal recently overturned a decision regarding PPC permits for 'piggybacking' landfills. The ruling has significant implications for landfill operators, as Ellie Watson and Simon Read explain

On 20 December 2007, the Court of Appeal in the case of Enviro-nment Agency v Anti-Waste Ltd EWCA Civ 1377, overturned the EA's decision to refuse to consider permit applications for landfill cells that are partially laid on top of existing closed landfill cells - a practice known as 'piggybacking'.

The decision has implications for operators seeking to commence landfill and other PPC-regulated activities on top of closed landfills, and for the definition of 'installation' under the PPC regulations. Anti-Waste made an application for PPC permits for two landfill cells in Norfolk on sites that partially overlaid existing closed landfill cells. The EA rejected the application.

Anti-Waste sought to appeal this decision to the Secretary of State. Before doing so, the parties agreed to make an application to the courts for declarations as to the interpretation of certain key provisions in the relevant legislation. Two issues came before the High Court:
  • can a PPC permit lawfully be granted for the separate operation of a landfill that partially overlies a closed cell containing previously deposited waste? (The installation issue).
  • where the permit must be issued for the new cell and the closed cell together, must a permit be refused where the closed cell is responsible for discharges of harmful substances into the groundwater and the two cells together cannot be made to comply with regulatory requirements? (The groundwater issue).
Appeal process
The High Court held that piggybacking cells can lawfully be granted permits, but not where a discharge would continue from the old cell as that would amount to permitting the existing discharge. Both parties appealed the decision to the Court of Appeal. The court similarly considered each of these issues.

First, the installation issue. The Court of Appeal, finding in favour of Anti-Waste, upheld the decision of the High Court that a permit can lawfully be granted for a landfill cell that partially overlies a closed cell. In making this decision, it considered the interpretation of 'installation' in the PPC regulations and the accompanying guidance.

An installation is defined in the PPC regulations as "a stationary technical unit where one or more activities ... are carried out and any other location on the same site where directly associated activities are carried out". It was held that both the closed cell and the new cell are technical units separately carrying out appropriate activities.

In making an application for a new cell, it was not necessary to consider neighbouring technical units that carried out separate activities. The new cell would be carrying out an activity that is self-contained and accordingly it was appropriate for Anti-Waste to make the application for a permit in respect of the new landfill cell only.

When it came to the groundwaste issue, the Court of Appeal again found in favour of Anti-Waste, quashing the High Court's decision that issuing a permit to the new cell would amount to a permit to continue the existing discharge. Although the Court of Appeal did not go on to issue a declaration, it suggested that discharges from closed cells that were not directly or indirectly related to the activity that is the subject of the application - i.e the new cell - should not be considered in the application.

The decision is important as piggybacking is increasingly used by landfill operators as a way of maximising the use of ever decreasing space at existing landfills. The judgement confirms that a closed cell should not be treated as part of a new cell, for the purposes of the PPC regime. This may serve to reduce the technical hurdles that applicants would otherwise face and provide the EA with clear guidance as to how it should approach the application procedure.

Obstacles still to mount
The operator will still be required to use the best available techniques to mitigate against any adverse environmental effects of the piggybacking cell. Therefore, although the Court of Appeal appears to have given the green light to piggybacking, the reality is that such activities will still face obstacles in obtaining permits.

This is because although the impact on neighbouring installations is not relevant to defining the scope of an installation, it will be relevant to determining whether there is an overall adverse effect on the environment, and therefore contrary to the purpose of the integrated PPC regime. If the effect of the new landfill is to increase pollution from a neighbouring installation, the application should be refused.

Although on proper construction the continuing discharge of harmful substances from a neighbouring site should have no bearing on the application for a new landfill, if that new landfill exacerbates the discharge or makes it more difficult to stop, the permit should be refused. Operators will continue to face technical difficulties in obtaining PPC permits for activities on land overlying closed landfills.

Ellie Watson and Simon Read are solicitors in the planning & environmental team at Pinsent Masons

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