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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Environment Agency v Biffa Waste Services Ltd [2006] EWHC 3495 (Admin) (12 December 2006) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2006/3495.html Cite as: [2006] EWHC 3495 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand London WC2 |
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B e f o r e :
MR JUSTICE TUGENDHAT
____________________
ENVIRONMENT AGENCY | (CLAIMANT) | |
-v- | ||
BIFFA WASTE SERVICES LTD | (DEFENDANT) |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR IAN CROXFORD QC and MR THOMAS de la MARE (instructed by Fairweather Whillis Toghill) appeared on behalf of the DEFENDANT
____________________
Crown Copyright ©
"The question for the opinion of the High Court is:
Was I correct to rule that, by the inclusion of the phrase ' ..... as perceived by an authorised officer of the Agency', Condition 2.6.12 of PPC permit number BK 1988 issued in respect of the respondent company's site known as 'Westmill II' was invalid or ultra vires on any or all of the following grounds:
a. It offends the principles of certainty (clarity and foreseeability) required for the elements of an offence by:
(i) Domestic law and/or
(ii) Art 7 ECHR.
b. It has the effect of usurping the fact finding and adjudicative roles of the Court by bestowing on an authorised officer the functions of establishing the relevant facts (according to that officer's subjectivejudgement
) and obliging the Court to convict whenever it is satisfied that the officer honestly perceived those facts.
c. It results in a Condition which extends beyond the object of the power provided for at Regulation 8 of the Landfill (England and Wales) Regulations 2002."
"A landfill permit shall include conditions specifying the list of defined types, and the total quantity, of waste authorised to be deposited in the landfill."
Regulation 8 (2) (a) provides that such a permit -
" ..... shall also include appropriate conditions -
specifying [amongst other things] requirements for -
.....
monitoring and control procedures, including contingency plans."
Regulation 8 (3) provides that a landfill permit -
" ..... shall also include -
(a) appropriate conditions for ensuring compliance with the requirements ..... "
"(1) The following requirements shall apply to landfill sites from the start of the operational phase until definitive closure.
(2) The operator shall carry out the control and monitoring procedures set out in Schedule 3.
(3) Where the procedures required by paragraph (2) reveal any significant adverse environmental effects, the operator shall notify the Environment Agency as soon as reasonably possible.
(4) When it receives a notification of significant adverse environmental effects in accordance with paragraph (3), the Environment Agency shall determine the nature and timing of corrective measures that are necessary and shall require the operator to carry them out.
(5) The operator shall report at intervals specified by the Environmental Agency, on the basis of aggregated data, the results of monitoring and on such other matters which the Environment Agency requires to demonstrate compliance with the conditions of the landfill permit or to increase its knowledge of the behaviour of waste in landfill."
"There shall be no odours emitted from the Permitted Installation at levels as are likely to cause pollution to the environment or harm to human health or serious detriment to the amenity of the locality outside the Permitted Installation boundary, as perceived by an authorised officer of the Agency [Environment Agency].
An authorised officer, as defined in the Regulations, is one duly authorised by the Environment Agency.
" ..... Landfill gas odour monitoring and reporting will be undertaken in accordance with the methodology detailed below."
Paragraph 6.3.4 provides:
"Frequency of landfill odour monitoring
Landfill odour monitoring will be carried out a minimum of once per working week during operating hours unless a complaint is received. The monitoring will then be carried out daily for at least 5 working days from the date of the complaint."
Paragraph 6.3.5 provides:
"Landfill odour monitoring methodology
Landfill odour monitoring will be carried out around the boundary of the operational cell of the landfill and in the residential area, industrial area and Health Farm close to the landfill as these have been identified as the sensitive receptors most likely to be affected. If a complaint has been received the monitoring will also be carried out close to the origin of the complaint or the nearest receptors.
The route will be walked by the designated person or site manager to detect any landfill odour with the designated person walking slowly and breathing normally.
If landfill odour is detected while walking the intensity should be recorded as at least 3.
When landfill odour cannot be detected in this way the designated person will stand still at the monitoring point and inhale deeply facing upwind. If landfill odour is then detected, but can only be detected in this manner, the intensity should be noted as 2."
There is also provision for monitoring from a car.
"Moderate landfill odour (landfill odour easily detected while walking and breathing normally)."
"Calibration of site operative
In addition to the landfill odour monitoring carried out in Section 6.3.5, landfill gas odour monitoring will be carried out once a month by the site manager in conjunction with the designated person. This will be undertaken to calibrate the landfill odour monitoring carried out by the designated person.
The designated person will also carry out landfill odour monitoring in conjunction with the Agency Officer when a visit is undertaken and this is requested by the Agency Officer. This will be undertaken to calibrate the landfill odour monitoring carried out by the designated person and ensure consistency in landfill odour monitoring.
When dual monitoring is carried out by either the site manager or Environment Agency Officer, then individual observations shall be taken and recorded prior to any discussion being undertaken."
Classification systems for the extent of odour and the sensitivity of location are also provided.
"In this way, counsel argued, the drafting of the condition took the decision as to whether any breach had occurred away from the court and left it in the hands of the SEPA officials. That result would be unobjectionable if Parliament had provided for it by legislation, but it was unacceptable for SEPA to seek to achieve it by skillful drafting of the condition."
The Lord Justice General stated at page 597:
"We reject this argument also. The position might well have been different if the condition had said that a certificate by the authorised officer would be conclusive evidence that there had been an offensive odour outside the process boundary due to emissions to air from the process. In that event SEPA would in effect be seeking to set its own officer up as the final arbiter of a matter which might lie at the heart of a prosecution under section 23 (1) (a) of the Act [Environmental Protection Act 1990]. Here, however, as Sir Crispin [counsel for the operator] accepted, there was no certification procedure and a sheriff could reject the authorised officer's evidence about an offensive odour, if he thought it incredible or simply unreliable. He might even reach the view that the officer had acted so unreasonably that he had in effect failed to apply the correct approach in deciding that an odour was offensive. As the Advocate Depute argued, the condition lays down a standard which is ascertainable and it refers to the authorised officer as a way of verifying, readily but not conclusively, whether the standard has been met. It remains open to the court before which any prosecution is brought to determine whether the Crown has proved that the operators failed to meet the required standard and so carried on the process in breach of condition 2.1.3."
"Of course issues may be raised in criminal proceedings about the undue sensitivity or sensitisation of local inspectors or as to differing standards as to what is 'offensive', or indeed as to whether a prosecution had been influenced by local pressure. But in principle, it is not irrational for a court to be able to receive and rely on the evidence of an insepctor that he smelt a smell and that it smelled horrible. He may be untruthful, he may be unreliable, he may be unduly sensitive, but courts are not unaccustomed to dealing with that sort of issue. The offensive escape has to be proved before the question of due diligence and reasonable steps arises."
Mr Justice Ouseley then cited the passage from Seed Crushers set out above and stated:
"I accept the force of that conclusion and adopt it in rejecting this part of the subjectivity argument."
"The respondents can - and indeed must - themselves check to see whether the emissions from the process are free from odour outside the boundary. By specifying that only a SEPA official can determine that there has been a breach, SEPA have narrowed the condition and have made its operation more certain and predictable, thus providing a substantial safeguard for the operators."
Mr Justice Ouseley adopted that conclusion. In the result, Mr Justice Ouseley held at paragraph 96:
"I cannot accordingly conclude that an odour boundary condition, framed by reference to the perception of a local authority enforcement officer, would be irrational or unlawful."
"Thejudgement
of the authorised officer therefore affords the 'best evidence' so to speak ..... "
and so on. What he was doing was, in his own words, explaining what had been put before him. What had been put before him both by that case summary and sections of the written submissions from Mr Banwell that I showed you earlier, in particular paragraph 17 was it, and indeed the way Mr Harris puts it here was that he was not grappling with the case on the basis of the way you have just disposed of it.
"The supposition ..... Mr Banwell denies this and submits that reliance on the subjective perception of the authorised officer does not make the condition inherently uncertain. Practically, determination of whether emissions reach a level which contravene the condition would be difficult to measure in empirical terms, given the wide - - - - - "
"Thejudgement
of the authorised officer therefore affords the 'best evidence' so to speak."
(The Bench retired)