Neutral Citation Number:  EWHC 513 (Admin)
IN THE HIGH COURT OF JUSTICE CO/961/2001
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2
Wednesday, 6th February 2002
B e f o r e:
MR JUSTICE OUSELEY
THE QUEEN ON THE APPLICATION OF
(1) CASTLE CEMENT LIMITED
(2) THE SECRETARY OF STATE FOR THE ENVIRONMENT,
TRANSPORT & THE REGIONS
Computer-aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2ag
Telephone No: 0207-421 4040/0207-404 1400
Fax No: 0207-831 8838
(Official Shorthand Writers to the Court)
MS E SHARPSTON QC & MR M HUTCHINGS (instructed by Richard Buxton, Cambridge) appeared on behalf of the claimant
MR D ELVIN QC & MS K SMITH (instructed by the Environment Agency) appeared on behalf of the defendant
MR J FINDLAY (instructed by Norton Rose, London) appeared on behalf of Castle Cement Ltd
MR J HOWELL QC & MS R HAYNES (instructed by the Treasury Solicitor) appeared on behalf of the Secretary of State for the Environment, Transport & the Regions
J U D G M E N T
(As approved by the Court)
Wednesday, 6th February 2002
1. MR JUSTICE OUSELEY: In the light of the submissions that I have heard, I accept that it would be appropriate for a number of questions to be posed to the European Court in Luxembourg. The questions which have been raised by Mr Howell and Mr Elvin cover to a very large extent, it seems to me, the real matters of concern which have been raised by Ms Sharpston, insofar as they are necessary for the resolution of the disputes and go to questions of interpretation. It seems to me also that, bearing in mind there are some disputed issues of fact, it is important that the questions go on the basis that either the necessary facts will be agreed or that the necessary assumptions can be made, but these questions seem to raise few, if any, issues of contentious fact.
2. As far as Mr Howell's broad areas are concerned, they all seem to me to be appropriate. I will read them out as I have noted them. They all relate to the question of the relationship between planning permission and other authorisations and the requirement for environmental assessment.
3. If the planning permission cannot be quashed, but should not have been granted without an Environmental Impact Assessment, does the Directive require somebody to carry out an environmental assessment when that other body is granting an authorisation under its own powers for the purposes of the operation of the installation?
4. Secondly, if the development consent has been granted, does the project change, or is it the same project, when the full extent of the consent is exploited, or is there some other stage at which it can be said that the project has changed? I put it that way because, as formulated by Mr Howell, the question permitted only one answer: if there is no change is it the same project? I understand the point that he is making, but I think we might try and formulate it as a question that is capable of more than one answer.
5. The third point which he raised was for the purposes of paragraph 13 of Annex 2. Is the mere fact that there has been a change of fuel in a cement installation capable of being a change to the project for the purposes of that paragraph? I also think Mr Elvin's questions about whether, in the event that the Directive is held to be applicable in these circumstances, nonetheless is it something which the claimant here can rely on as having an indirect horizontal effect, or indeed is it something that can be relied on so as to require an emanation of the state to give it effect as an inverse direct effect.
6. It was also appropriate, in view of the way in which the Environment Agency has approached the question of the variation authorisation, to have a question which deals with whether the Environmental Impact Assessment Directive has been complied with on the facts alleged by the Environment Agency in substance, and whether that amounts to a compliance in full with the Environmental Impact Assessment Directive.
7. Those I am entirely content with. I am very reluctant to see a question in relation to mitigation measures, because it seems to me that that is very much dependent upon the facts of what has constituted the project. Insofar as one is looking at mitigation measures that do not form part of the project as defined, there does not appear to be an issue between the parties as to their not being taken into account for the purposes of the assessment of whether the project would have significant environment effects.
8. The remaining issue seems to me to revolve around the question of whether, in certain circumstances, a kiln in which what is hazardous waste upon arrival at the site is burned for the purpose of cement making, can become a waste disposal installation for the purposes of Annex 1, and whether it can become so if there are streams of low calorific value added to the Cemfuel. It seems to me that that latter subquestion involves a good deal of factual analysis as to how the streams are made up and why, which I would be very reluctant to send off to Europe.
9. So far as the slightly broader question goes: in what circumstances would what might be regarded as a cement installation become a waste disposal installation, for example does the use of x amount of Cemfuel amount to use for a cement installation, and would y amount of Cemfuel be regarded as waste disposal, I have some difficulty with seeing that as an interpretation question or one that necessarily arises here.
10. I am not entirely sure that I want, however, to rule it out of the question in the absence of its explicit formulation, so I have indicated the four areas which are appropriate for questions and a fifth which may be. I have indicated that I do not want the mitigation question. I will allow Ms Sharpston the opportunity either to persuade her colleagues or to persuade me, or someone else, that there should be an another question added.
11. I would also say that because of what I have decided there seems to me no reason not to allow the amendment to the grounds which Miss Sharpston seeks to make. Of course, the defendants and interested parties will have the opportunity, I do not know if a time limit needs to be set, to reply to the underlying evidence or to provide evidence in response to those points.
12. How much time would you like? I think it is principally your evidence, but it may be subject --
MR ELVIN: Can I just take brief instructions. My Lord, I think 28 days if that is acceptable to the court.
MR JUSTICE OUSELEY: Yes.
MR FINDLAY: My Lord, I would ask for two weeks longer than that so that we can see what the Agency has put in and we do not duplicate what they have done, which is effectively what we have tried to do with our case up until now, otherwise we may well be putting in exactly the same material.
MR JUSTICE OUSELEY: I do not know, do you talk to the Environment Agency at all?
MR FINDLAY: We do, although it may be said they are doing a lot of talking for us in this case. My Lord, we do not necessarily have as close a relationship with the Environment Agency as some others in this court might think we do.
MR JUSTICE OUSELEY: I will give you one more week. It seems to me you jolly well ought to get it done, and all you will need to do really is delete bits.
MR JUSTICE OUSELEY: Four weeks for the defendant, Environment Agency, five weeks from today for Castle Cement to reply to the evidence. It is the evidence of Dr Howard, is it?
MR ELVIN: Yes. I have to say, my Lord, I am slightly concerned we are actually giving evidence for allegations that are formulated in the grounds but have no actual factual substance on the evidence. I am not sure I can see a way round that other than by asking you to order the claimants to put in further evidence, and I am reluctant to do that.
MR JUSTICE OUSELEY: It is difficult to order the claimants to put in further evidence, at least for me at this stage, because I am not sufficiently on top of the papers to see which allegation it is that is being made that you say is not supported by the evidence. It seems to me that that really is a matter for your submission. I think you are going to have to make a judgment as to the extent to which there is an allegation not supported by fact which you do not wish to deal with.
MR ELVIN: My Lord, I do not think I could urge any other course on your Lordship given the fact that, without spending hours going through it, I do not think we could really deal with it.
MR JUSTICE OUSELEY: It may be that your solicitors would write to Mr Buxton and say, we do not consider you have any evidence for this, are you intending to put more in.
MISS SHARPSTON: My Lord, I was going to make that suggestion. I am sure that those instructing me would be happy to seek to respond properly to such a request.
MR JUSTICE OUSELEY: I do not want it to turn into a great paper chase, you will know what I mean, where you keep pointing out weaknesses, that is then followed up by evidence, to which you then reply.
MR ELVIN: May I take the course of least resistance and assume it is all in the evidence and then see what happens.
MR JUSTICE OUSELEY: Yes, that might be best.
MR FINDLAY: It would certainly help if we knew what the final position of the claimant's evidence was in this case before we put our evidence in.
MR JUSTICE OUSELEY: Well, I am assuming that everything they are relying on is now in. That is the basis upon which I am approaching that.
MR FINDLAY: My Lord, I am grateful for that indication.
MR JUSTICE OUSELEY: Unless I am told now that that is not so and that you are to expect more, I am going to assume they have put in all they want in and you are now replying to it.
MR FINDLAY: Much obliged.
MR JUSTICE OUSELEY: I think that now leaves the question of the drafting of the questions which have to be approved. I do not know what your proposals are. Is it best if there is somebody who takes the lead in relation to this matter?
MR HOWELL: I think the finger is pointed in our direction for that.
MISS SHARPSTON: My Lord, I am conscious of how helpful my learned friends has been so far in the formulation of the questions, and I would not wish to stop them running with the ball, but, in my respectful submission, the case does look rather different depending on whether it is the claimant or the three parties aligned against the claimant who produce the first draft, and I would at least wish your Lordship to consider the possibility that the claimant might produce the first draft, bearing in mind that there is some expertise on this side of the court in doing that.
MR JUSTICE OUSELEY: There is ultimately one document that has to be produced, and it is the responsibility of the court to approve it, it is certainly not my intention to draft it. I propose to invite the Secretary of State to do the draft before it comes to the court. I am sure it would have been circulated to the Environment Agency, to Castle Cement and to the claimant, and I would expect recognition to be made by the Secretary of State in accepting amendments, suggestions and corrections to the fact that it is a court document rather than the Secretary of State's document. I am sure that will not be taken as an opportunity to try and put a particular spin upon the facts and that it would be neutral. If, by the time it comes to me, or to whoever, there are significant areas of disagreement, that will have to be dealt with either in writing or in oral argument. That seems to me the most appropriate way forward. I am not inclined at present to impose a timetable for the production of a draft or for the matter to come back to the courts, unless the parties wish me to do so.
MR ELVIN: Perhaps the appropriate course is that there is liberty to restore the matter before your Lordship if, for example, matters reach an impasse and a draft has got as far as it can without the ability of the party.
MR JUSTICE OUSELEY: I shall give liberty to restore for argument if necessary. I think the real question is, does there need to be a time set for the production to the court of a schedule?
MR ELVIN: My Lord, it might be sensible to set a long stop on that simply to stop matters drifting. It does not have to be a particularly early one, but at least a long stop.
MR JUSTICE OUSELEY: The burden is, first of all, with Mr Howell, then the other parties will certainly need time to consider and respond, he will need time then to take on board the points that are being made, and I know Mr Howell realises that this is not the Secretary of State's document and therefore he has to be open handed and minded about what goes on.
MR HOWELL: Might I suggest, rather than having an end date, that your Lordship would indicate that any further evidence (inaudible) in four weeks time, or five. If we would undertake to provide a first draft for everyone else to look at within six weeks, what I would then envisage is that there should be an attempt by all parties to agree, and only if we cannot agree should we take the liberty which your Lordship has given us to reply. I think that what would also be helpful is that if we reach an unhappy stage where we cannot agree, at least what I hope we could agree are those points where there is an issue, so we could formulate the points clearly for your Lordship to rule on. My Lord, having said that, I have said six weeks for the first draft, I have not suggested a timescale thereafter. Obviously that may depend on the responses and the discussions thereafter, but I would hope that all parties would act reasonably --
MR JUSTICE OUSELEY: What I have in mind is six weeks for a first draft, I was then going to say four weeks for reply, and I would like the matter then mentioned, which is a mention that can be done in writing, just so I am kept informed as to where the case has got to two weeks after that, that makes it 12 weeks. That will not be me, unless you fancy a trip somewhere. You can communicate with me in writing because I shall be at Leeds, but I would like to have the final document or the matter mentioned in the week of 27th May. I would like be updated as to where matters are in the week starting 27th May. Whether that is you have agreed, in which case I will have the schedule, or it is you have not agreed, and I will then deal with the issues on papers or in writing as the case may be. Six weeks for the first draft. You have in fact plenty of slippage in that. I will not, in those circumstances, say four weeks reply, I will say six weeks reply, so you will make sure you get those in, then you have got plenty of opportunity for the parties to debate. I think I will say six weeks for reply, the parties ought to have met and discussed any issues. By 17th May there ought to have been a discussion.
MR HOWELL: My Lord, may I mention one thing. Effectively what your Lordship is allowing is my learned friend six weeks to reply to the first draft, I am afraid I do not have a calendar here.
MR JUSTICE OUSELEY: Well, six weeks for the first draft would take you from today's date to 20th March. Six weeks after that, which includes the Easter break, would be 1st May, so in fact although it looks like a long time it is broken up a bit by vacation.
MR HOWELL: My only concern was that we should have enough time to discuss whatever may be in issue before we have to come back to you. The other point is obviously if my learned friend would find it of assistance to have a meeting (inaudible) --
MR JUSTICE OUSELEY: I entirely understand that, and that is obviously very sensible. What I am doing is not setting down the only times when you can meet and discuss things, but setting down a timetable in case things are going awry.
MISS SHARPSTON: I have taken your Lordship's indications as the long stop arrangements.
MR JUSTICE OUSELEY: They are long stop arrangements rather than prohibition of communication otherwise.
MISS SHARPSTON: My Lord, the only slight matter of concern is that I was reflecting upon my learned friend's submissions in relation to their further evidence, because we had offered to put in extra evidence to clarify if there were points that were unclear, I appreciate your Lordship does not want there to be an endless stream of evidence but I have, I suppose, a remaining concern in case some points are raised in reply which in fact leave a loose end.
MR JUSTICE OUSELEY: I understand and recognise that in these cases there tends to be a bit of a flurry of witness statements going to and fro, and it may not be realistic to absolutely exclude further evidence. I would hope that there would be contact if a point is obviously unclear, rather than simply saying this point is obviously unclear, if it was thought that there was an answer that would inevitably be forthcoming, but I cannot make an order that the parties should behave with common sense in the interests of the litigation at this stage.
MISS SHARPSTON: No, my Lord.
MR JUSTICE OUSELEY: You are entering a note of reservation about the suggestion that there is no more evidence to come, but the principal point is clear. The only evidence that you have in mind is if it becomes apparent from what is said by the defendant and interested parties that they had misunderstood something.
MISS SHARPSTON: My Lord, yes.
MR JUSTICE OUSELEY: Well, I am not going to make rulings on that. As I say, I hope that people will behave sensibly in relation to that, and if it is necessary, provided it does not give rise to too much inconvenience, it can be dealt with. I very much doubt that I would preclude it, after all I am only concerned merely at this stage with making sure that the reference is in order. What happens five years later when you get an answer is another matter.
MISS SHARPSTON: My Lord, indeed.
MR ELVIN: My Lord, could your Lordship also make a formal costs order.
MR JUSTICE OUSELEY: Yes, costs in the case, and the costs of doing the work that is being done will be costs in the case.
MR ELVIN: My Lord, all the costs relating to the reference will be domestic court costs in any event.
MISS SHARPSTON: In relation to costs, I merely raise the point rather tentatively, since it is a reference of necessity it means there will be a certain time spent while matters goes to Europe, I was wondering whether your Lordship might perhaps be minded on the legal aid side to make an order so that we could have our taxed costs up to this point.
MR JUSTICE OUSELEY: Subject to the right formula I see no reason why you should not be able to obtain legal aid taxation of your costs. It is not a matter that hinges on anyone else. An order for the detailed assessment of the claimant's legal aid costs to date.
MR JUSTICE OUSELEY: Is there any need for the matter to be reserved to me?
MR ELVIN: My Lord, the case has now actually begun in front of your Lordship and in a sense it is your Lordship's decision on reference. I would respectfully suggest that it ought to stay with your Lordship.
MR JUSTICE OUSELEY: Yes. Thank you very much.