UK Case Law

Opinion (No.2) of Lord Reed in petition of Scottish Power Generation Limited for Judicial Review of a decision by Scottish Environmental Protection Agency (SEPA)

Following the issuing of an Opinion by the Court of Session in December 2004, in which it was held that dried sewage sludge pellets fell within the definition of ‘waste’, Scottish Power sought a further hearing relating to the interpretation of the Pollution Prevention and Control (Scotland) Regulations 2000, and the Waste Incineration (Scotland) Regulations 2003.

In the Judicial Review raised by Scottish Power Generation Limited against a decision taken by the Scottish Environmental Protection Agency (SEPA), it was previously held that waste-derived fuel (WDF) burned at Longannet Power Station was “waste” as defined by Article 1(a) of the Waste Framework Directive (Directive 75/442/EEC), and that Longannet was a “co-incineration plant” as defined by Article 3(5) of the Waste Incineration Directive (Directive 2000/76/EC).

Further submissions made by Scottish Power though sought to argue that despite the decision that WDF were waste, Longannet was not an “existing waste incineration installation” as defined in regulation 2 of the Waste Incineration (Scotland) Regulations 2003 and therefore did not fall within the scope of regulation 3(2) of the 2003 Regulations.

Lord Reed in his second opinion of 24 May 2005, however did not agree, finding both that the plant was a waste incineration plant and a co-incineration plant.

While the main purpose of the plant is the generation of energy, Longannet “uses waste as a regular or additional fuel” and is therefore a co-incineration plant.

The plant is a waste incineration installation as activities are carried out at the plant, namely the burning of fuel in a combustion appliance with a net rated thermal input of 50 megawatts or more, which fall within section 1.1 of Part I of Schedule I to the PPC Regulations.

Whether Longannet was an “existing waste incineration installation” therefore depended on whether it was in operation before 28 December 2002 following the grant of a relevant approval.

Being in operation prior to this date, Scottish Power submitted that the “relevant approval” must be an authorisation as a waste incineration installation, which Longannet did not hold.

However the Court concluded that Longannet satisfied the definition of “an existing incineration installation”, having been “authorised as a waste incineration installation” from the time when the variation notice was issued in 1998.

The full opinion ([2005] CSOH 67) can be found at the following link.

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