R oao David Edwards v. Environment Agency (1) First Secretary of State (2) and Rugby Cement Limited

Transcript date:

Friday, April 2, 2004

Matter:

Court:

High Court

Judgement type:

Permission

Judge(s):

Keith J

Neutral Citation Number: [2004] EWHC 736 (ADMIN)

Case No: CO/5702/2003

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 2 April 2004

Before:

THE HONOURABLE MR JUSTICE KEITH

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Between:

R (on the application of David Edwards) Claimant

- and -

(1) The Environment Agency

(2) First Secretary of State

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Rugby Limited Defendants

Interested Party

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Mr D Wolfe (instructed by Richard Buxton) for the Claimant

Mr D Elvin QC and Ms K Smith (instructed by Environment Agency Legal Services) for the First Defendant

Mr S Tromans (instructed by Michael Collins, RMC(UK) Legal Department) for the Interested Party

Hearing date: 19 March 2004

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Approved Judgment

Mr Justice Keith:

The issue of the Permit

1. Rugby Ltd. ("the Company") operates a cement plant near Rugby town centre. The operations had been authorised under the integrated pollution control regime enforced by the Environment Agency ("the Agency") under Part I of the Environmental Protection Act 1990. A new statutory regime governed by the Pollution Prevention and Control (England and Wales) Regulations 2000 ("the PPC Regulations") subsequently came into force in order to implement Council Directive 96/61/EC on integrated pollution prevention and control. Accordingly, if the Company was to continue operations from the plant, it had to obtain a permit under the PPC regulations.

2. On 12 August 2003, the Agency issued a permit ("the Permit") to the Company under reg. 10 of the PPC Regulations authorising the Company to continue operations at the plant. The Permit also authorised the use of tyre chips as a partial substitute for the existing fuels used in the operations subject to the satisfactory completion of trials.

The challenge to the issue of the Permit

3. Prior to the issue of the Permit, the Agency had embarked on an extensive consultation exercise. It acknowledged that the use of tyre chips as an alternative source of fuel even on a trial basis was a sensitive issue, and that there was considerable local concern about the effect of the trials on the environment. However, local opposition to the burning of tyre chips continued after the issue of the Permit, and this claim for judicial review of the grant of the Permit has been brought by a local inhabitant of Rugby, Mr David Edwards. The issue of the Permit was attacked on three grounds in the judicial review claim form, but the principal line of attack was that the requirements of Council Directive 85/337/EEC as amended ("the Directive") had not been complied with in connection with the issue of the Permit.

4. In summary, the purpose of the Directive was to ensure that a planning decision which involves the grant of "development consent" for a "project" as defined by the Directive and which may affect the environment is made on the basis of full information, which has been obtained by a procedure known as an environmental impact assessment. An essential element in that procedure is the publication by the developer of a statement ("an environmental statement"), in which information relating to the anticipated impact of the development on the environment is to be given. In that way members of the public are given an opportunity to express an opinion on the topic to enable the planning decision to be made in the light of such views. The non-compliance with the requirements of the Directive of which Mr Edwards complains is that an environmental statement was not published ("the Directive issue").

5. The Agency's case (and that of the First Secretary of State, who was also named as a defendant because he was responsible for transposing the Directive into English law) is that the issue of the Permit was not "development consent" for a "project" as defined by the Directive, and an environmental statement was therefore unnecessary. It had been necessary in 1995 when planning permission for new cement works had originally been submitted, and an environmental statement of the kind contemplated by the Directive had been published then. In any event, the Agency contends that in the process leading up to the issue of the Permit it had substantially complied with the requirements of the Directive.

6. The other two grounds on which the issue of the Permit was attacked were that (a) the Agency had failed to ensure that the proposal used the "best available techniques" ("the BAT issue"), and (b) the Agency had failed to consider whether burning waste tyres was the "best practicable environmental option" for dealing with the waste stream involved in the operation ("the BPEO issue"). The BPEO issue is no longer pursued.

7. The claim was considered by Sullivan J. without a hearing. He refused Mr Edwards permission to proceed with the claim. He did not think that Mr Edwards had a sufficient interest to bring the claim. He noted that the BAT issue was completely unparticularised. And he thought that insufficient information had been given about how the alleged non-compliance with the Directive had affected the issue of the Permit or what its impact on Mr Edwards had been. Mr Edwards now renews his application for permission to proceed with his claim. The problem with the particularisation of his claim has now been remedied. The BAT issue has been particularised (albeit only a week or so before the hearing), and the extremely skeletal grounds in the claim form relating to the Directive issue have been very considerably fleshed out in the skeleton argument of Mr Edwards' counsel, Mr David Wolfe (albeit received by the Administrative Court Office on the day before the hearing).

8. In the course of the hearing, it became apparent that it would take some time to determine the arguability of the two remaining issues, the Directive and BAT issues, as well as the question of Mr Edwards' standing to bring the claim. The estimate of two hours may have been sufficient for a judge who has had to consider issues arising from the Directive before, but not for one who had not. Accordingly, the parties agreed that the appropriate course for me to take was to decide the issue of standing, and if I concluded that Mr Edwards had the standing to bring the claim, I should direct that the question whether permission should be given for the claim to proceed should be decided at a full hearing of the claim, with a time estimate of 2 to 2½ days. I agreed to take this course in view of what I knew about the arguments relating to Mr Edwards' standing. I thought that it was a discrete issue which could be decided irrespective of the merits of the claim. After the argument on the issue of Mr Edwards' standing concluded, I reserved judgment, and this is my judgment on that issue.

The facts relating to Mr Edwards' standing

9. I begin where the Agency begins. It notes that the substantial and vociferous local opposition to the Agency's decision to permit the Company to burn tyre chips in its cement plant has not resulted in this claim for judicial review being brought by known opponents of the decision - for example, the Rugby Primary Care Trust or Rugby Borough Council or representatives of a local pressure group, Rugby in Plume. Instead, it has been brought by someone who did not make any representations to the Agency during the extensive consultation process which took place, who did not attend any of the public meetings, who did not express his opposition to the Company's proposal by sending to the Agency a pre-printed postcard which had been provided by local campaigners as an easy means for members of the public to register their objections, and who did not make himself known to the Agency at all.

10. So what is known about Mr Edwards? The claim form gives little away. It simply said that he was "a resident of Rugby who is affected by the operation of the [Company's] works and is concerned about the effects of the operations now permitted". It did not even give his address. In a subsequent witness statement, he said that he had lived in Rugby all his life, except while serving in the RAF, and he identified a large number of addresses in Rugby at which he had lived. A local councillor has said that at least at some of the places he had lived, he would have been affected by pollution from the Company's works. But she made no comment about his last address (wherever that was), and she states that he is currently homeless - though still in Rugby, I was told.

11. That is not to say that he is not concerned about the environmental effect of the decision he is seeking to challenge. He may not have taken an active part in the campaign, but the local councillor says that he has expressed his concern to her about the effect which the cement works has on Rugby and its inhabitants. And in his witness statement he said:

"I have not only kept myself informed about the issues involved with the Rugby Cement Works, but I have attended meetings, and recently even spoke, at one ‘Rugby in Plume' meeting. Although I distance myself nowadays from ‘formally' joining any organisations, I would consider myself firmly aligned with the ‘Rugby in Plume' camp. I have visited with members of Rugby in Plume often and been presented with more information than I could possibly fully analyse in a short time. The internet has proved useful, also. The information that I have seen, and understood, worries me greatly."

12. So how did Mr Edwards come to be the claimant in this claim? He does not say, but the answer may not be hard to find. The public campaign against the use of tyres was essentially expressed through Rugby in Plume. Its leading light was Mrs Lillian Pallikaropoulos. She has claimed to speak for between 50,000 and 90,000 local residents who are "affected" by the installation, to have instructed the solicitors now acting for Mr Edwards, to have committed substantial funds of her own to the campaign, and to be committed to a legal challenge to the Agency's decision to issue the Permit. However, Rugby Borough Council decided, following the receipt of advice from leading counsel, not to pursue a claim for judicial review of the Agency's decision. Following that decision, Mrs Pallikaropoulos was reported as saying that she had "already forked out £20,000.00 of her own money during the legal fight", and as "pledging to carry on the battle using legal aid". But she was also reported as saying:

"I'm too rich [to get legal aid], because I own my own house, so someone in Rugby has to come forward who feels strongly enough to take the case forward under the legal aid scheme."

Another report quoted Mrs Pallikaropoulos as saying:

"The council has proved it is out of touch [with] the people of Rugby, so we need someone who is able to take the case forward on a legal aid basis. I can't afford it."

The report concluded by saying that Mrs Pallikaropoulos had asked anyone who may be able to help to contact her on a telephone number which was then given.

13. Mr Edwards does not say that he responded to this request for assistance, but it may be that his alignment with Rugby in Plume only began after Mrs Pallikaropoulos' call for a volunteer. As it is, it is difficult to resist the inference that Mr Edwards has been put up as a claimant in order to secure public funding of the claim by the Legal Services Commission ("the Commission") when those who are the moving force behind the claim believe that public funding for the claim would not otherwise have been available. That possibility was raised in the Agency's summary grounds for contesting the claim dated 24 November 2003, and in the witness statement of 25 November 2003 of Mr David Sheldon, a process industries regulation technical adviser employed by the Agency. There is no evidence that it has ever been denied.

14. On these facts, two issues arise. First, since section 31(3) of the Supreme Court Act 1981 provides that "the court shall not grant leave [to proceed with a claim for judicial review] unless it considers that the [claimant] has a sufficient interest in the matter to which the [claim] relates", does Mr Edwards have a sufficient interest to bring this claim? Secondly, even if he does, is it an abuse of the court's process for him to bring the claim? I deal with each issue in turn, though there is plainly much overlap between them.

Mr Edwards' interest

15. In contending that Mr Edwards does not have a sufficient interest to bring the claim, Mr David Elvin QC for the Agency did not suggest that Mr Edwards was bringing his claim as an individual, and not on behalf of himself and other local inhabitants of Rugby. It would have been open to Mr Elvin to make that suggestion on the basis of the material in the claim form and Mr Edwards' witness statement. But such a suggestion would not have sat easily with the contention that Mr Edwards had been put up to front the claim by those who were the moving force behind it. So what Mr Elvin placed at the forefront of his argument was the nature of Mr Edwards' principal challenge to the decision. Since an environmental statement had not been published, members of the public had been denied an opportunity to express their response to the Company's view of the anticipated impact of the tyre trials on the environment. In that respect, the consultation exercise had not been conducted in the manner contemplated by the Directive. But in the consultation exercise which had taken place, Mr Edwards had played no part whatever. He therefore could have had no interest in whether an environmental statement of the kind supposedly required by the Directive should have been published.

16. I cannot go along with this argument. Apart from the fact that it takes no account of the other ground on which Mr Edwards challenges the decision to issue the Permit (the BAT issue), the argument does not acknowledge that Mr Edwards was entitled to leave it to bodies like the Rugby Primary Care Trust and Rugby Borough Council to look after the interests of local people, and to pressure groups like Rugby in Plume to be active in its opposition to the Permit on behalf of local people. You do not have to be active in a campaign yourself to have an interest in its outcome. If the consultation exercise ends with a decision which affects your interests, you are no less affected by that decision simply because you took no part in the exercise but left it to others to do so. You should not be debarred from subsequently challenging the decision on the ground of inadequate consultation simply because you chose not to participate in the consultation exercise, provided that you are affected by its outcome. It has been said that it is easier to identify a sufficient interest than to define it, but as a local inhabitant, Mr Edwards has a sufficient interest in the decision to issue the Permit even if he is temporarily homeless, because as an inhabitant of Rugby he will be affected by any adverse impact on the environment which the trials on the use of tyre chips may have.

Abuse of process

17. The argument relating to the abuse of the court's process is at first blush a more promising line of attack for the Agency, though here the issue is not really one of standing. The question of someone being chosen to bring a claim because he or she would be more likely to obtain public funding for the claim than a more obvious candidate for bringing the claim was discussed in R v London Borough of Richmond ex p. JC [2001] ELR 21. The case concerned the rights of parents to have their child educated at a school of their preference. Parents whose child has not been admitted to the school of their preference have a right of appeal to an appeals committee. At para. 31, Kennedy LJ said:

".....I am satisfied that where a parent wishes to challenge a local education authority or an appeals committee in relation to the handling of a parent's expression of preference as to the school at which his or her child should attend it is the parent and not the child who should mount the challenge. I accept that the child may have a sufficient interest to mount a challenge, and in some exceptional cases it may be appropriate for the child to make the application for permission to apply for judicial review, but normally, as it seems to me, the only reason why the application is made in the name of the child is to obtain legal aid, and to enable the parents to protect themselves in relation to costs. That I regard as an abuse. Our legal system works upon the basis that those who seek a remedy should expose themselves in relation to costs. If the device is used in future, permission to apply for judicial review may well be refused on that ground."

Ward LJ said much the same thing at para. 69. Having commented that it is the parents' appeal, not the child's, he said:

"The system is open to abuse if the child applies for legal aid and that abuse must be curtailed."

18. These dicta were considered in another education case, R (on the application of WB) v Leeds School Organisation Committee [2002] EWHC Civ 884, which was a challenge to a decision to close a school. The claims were brought by two children rather than their parents. Permission to proceed with the claim was refused at first instance, but when the Court of Appeal granted permission for the claim to proceed, Sedley LJ said at para. 7:

"The proposition for which the SOC relies on a passage of the judgment of Kennedy LJ in R v Richmond LBC ex p. JC [2001] ELR 13 para. 31 goes not to standing but to abuse and hence discretion. It merits careful consideration, but it is obiter and in our respectful view not easy to apply. We are not persuaded that the fact that some of the parents who were objectors are ineligible for public funding and have a sufficient interest is necessarily enough to render the claim an abuse, and we think that the concept of a device needs elaboration."

When the case was heard on its merits - see [2002] EWHC Admin 1929 - Scott Baker J (as he then was) said at para. 34 that there was "no indication that [the] observations [of Kennedy and Ward LJJ] were intended for any wider application than the particular type of case with which they were concerned". His conclusion at para. 37 was as follows:

"Both parents and children have a sufficient interest to bring proceeding[s] for judicial review in school closure or reorganisation cases. Ordinarily, it is likely to be the parents who have the real and primary interest in bringing the case. It is ..... the parents and not the children who have the right to be consulted under the legislation and the parents whose objections are required to be taken into account under the DfEE guidance. It may be an abuse of process for proceeding[s] to be brought in the name of a child rather than a parent where this is done for the purposes of obtaining public funding and protection against a possible costs order. However, clear evidence would be needed to establish this and there is no such evidence in the present case."

19. Although these cases were in the field of education, I do not think that they preclude the refusal of permission to proceed with a claim in another field if the claim has been brought in the name of someone solely for the purpose of obtaining public funding, and if in the circumstances it can really be said to amount to an abuse of the court's process. Nor do I think it necessary for it to be shown that the purpose was not merely to obtain public funding but also to avoid exposure to an adverse order for the costs of other parties. The latter is usually the consequence of the former. Each case will depend on its own particular facts. Having said that, there is a clear distinction between this case and the case of parents who wish to challenge an appeal committee's refusal to admit their child to the school of their preference. Although the child is plainly affected by the outcome of the appeal, he or she does not have a sufficient interest in bringing the claim, because the interest in bringing the claim is that of his or her parents since it was their appeal which was dismissed. That is to be contrasted with the position of Mr Edwards. Not only is he affected by the decision to issue the Permit, but there is in addition nothing which actually prevents him from having a sufficient interest in bringing the claim.

20. Moreover, in a case of this kind, it is not so much the court's process which is being abused, but rather the possibility that it is the Commission which may have decided to fund Mr Edwards' claim without being fully informed of the facts. In fact, the Commission is aware of the relevant facts, because the head of the Company's UK legal department set them out in a letter to the Commission dated 20 November 2003. The letter concluded:

"This must in our view raise very serious questions as to whether it is reasonable to grant funding to Mr Edwards under the Funding Code. In particular it is questionable whether the proceedings are for the benefit of Mr Edwards as an eligible individual (see para. 4.5 of the Code) or whether they are really for the benefit of other individuals who are not eligible. We would also comment that those individuals are presumably unwilling to expose themselves to the risk of an adverse order of costs, and that the provision of funding is intended to take advantage of the protection offered by section 11 of the Access to Justice Act 1999, for the benefit of campaigners who themselves would not qualify for funding and hence would not have the benefit of that section."

Since Mr Edwards still has a community legal services funding certificate, the Commission must have decided that the facts on which the Company relied did not justify the withdrawal of funding. In the light of the Commission's Funding Code guidance, it probably thought that it was appropriate for the claim to be brought in Mr Edwards' name, and that the claim was one which could produce real benefits for a large group of people, though if it thought that they could reasonably be expected to contribute to the cost of the litigation, they could be required to make an appropriate contribution as a condition of the grant of public funding. The Commission must therefore be taken to have addressed the question of whether granting a funding certificate to Mr Edwards would be an abuse of the system under which cases are selected for public funding.

Conclusion

21. For these reasons, I have concluded that it would not be an abuse of the court's process for this claim to be brought in Mr Edwards' name, even if he has been put up to front the claim in order to secure public funding for it, when it was thought by those who were the moving force behind the claim that funding would not otherwise have been available. Since Mr Edwards has the standing to bring the claim, it will now go forward to the further hearing to which I have already referred. In the circumstances, it has not been necessary for me to consider Mr Wolfe's wider argument that, whatever the position of Mr Edwards, the claim should be allowed to proceed on the basis that the issues which the claim raises need to be decided, that the court has a free-standing obligation to monitor compliance with a Council directive, and that the court should be slow to prevent a serious claim that a Council directive has been ignored from being heard. It is not contested that the Secretary of State for the Environment, Food and Rural Affairs should be joined as a defendant, given his responsibility for the environment and for the PPC Regulations, and I order that he be so joined.