Residents kick up a stink over burning rubber

An appeal by residents who object to waste tyres being burned to fire kilns at a Rugby cement factory has been dismissed by the courts.

R (on the application of Edwards) v Environment Agency & Others

The Court of Appeal gave judgement in the case of R (on the application of Edwards) v Environment Agency & Others on 7 July 2006.

The case was an appeal against the High Courts decision of 19 April 2005, to refuse to allow judicial review proceedings challenging a conditional permit granted by the Environment Agency (EA) to Rugby Limited, now Cemex UK Cement Ltd, who appeared as an interested party within the proceedings under Regulation 10 of the Pollution Prevention and Control (England and Wales) Regulations 2000.

The permit granted was for the continued operation of the cement plant in Rugby, including, the burning of waste tyres as a partial substitute for conventional fuel in the kiln at the plant. One of the conditions of the permit therefore was that it was to be subject to completion of a successful trial of tyre burning.

The case arose due to concerns over the adequacy of the public consultation carried out as part of the Environment Agency's decision-making process. In particular, certain information obtained by the EA in order for its Air Quality Monitoring and Assessment Unit ("AQMAU") to review the projections of Rugby Ltd, upon which it had relied in predicting insignificant environmental effect, including data as to the low level emission points and as to Rugby's projections was not made to the public for comment.

Concerns were raised by the High Court Judge regarding the apparent lack of frankness on the part of the Agency in not alerting the public much earlier to the implications of the AQMAU Reports for possible contribution to environmental damage from low level emissions of dust.

The appeal, brought by Mr David Edwards and Mrs Lillian Pallikaropoulos, on behalf of a large number of residents of Rugby, raised three questions - 1) whether the Agency was in breach of the Environmental Impact Assessment Directive (Directive 85/337/EEC) 2) whether it was in breach of the IPPC/PPC regime and 3), if in breach of neither but of a common law duty of fairness, whether the High Court Judge wrongly refused relief in the exercise of his discretion.

However the Appeal Court held that although fairness in decision-making subject to public consultation would not generally require internal workings of a decision maker also to be disclosed as part of the consultation, where a decision-maker, in the course of decision-making, had become aware of some internal material or a factor of potential significance to the decision to be made, fairness might demand that the party or parties concerned should be given an opportunity to deal with it.

However, a domestic law procedural defect, not contravening EU law or rendering the ensuing decision ultra vires, would not necessarily lead to the quashing of a decision, but rather, it was a matter for the judge, looking at all the material facts of the case before him, to determine in the exercise of his discretion whether it was necessary or desirable for him to do so in the interests of justice.

The Appeal Court therefore held that it would not interfere with the exercise of High Court Judge's discretion to refuse relief and that it too would have exercised its discretion in the same way.

Further, it was not felt necessary to refer any questions concerning the EIA Directive or the IPPC regime to the European Court of Justice (ECJ).

Details can be found here.

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