Appeal dismissed against environmental permit decision

A local action group appealed to the Crown Court after its claim for judicial review was dismissed when it challenged the validity of an environmental permit granted by the Environment Agency.

The permit had been granted for the operation of a waste incineration plant, but there was a scientific error in the application submitted by the operator. The appellant challenged the lawfulness of the permit as a result of the error. The appeal was dismissed, as the judge ruled that the error did not affect the lawfulness of the Agency’s decision.

The judge considered four key issues – firstly, whether the permit incorporated the error. Including an incorrect statement in an application document was not evidence of the same error being made by the Agency in making its decision. Secondly, the appellant argued that the judge had relied on the Agency’s retrospective explanation after the fact. As a regulator, the Agency used its own scientific and technical expertise to inform its decisions, and there was no failure of its expertise in this case. 

Thirdly, they considered whether the judge had failed to investigate the need for a dust management plan. It was ruled that it was not for the court to ask why a plan was required. The final ground of appeal was based on the margin of appreciation. The judge ruled that the Agency had lawfully exercised its judgement and that the judge did not have to rely on establishing an enhanced margin of error for such regulators.

There was no evidence that the Agency itself made a mistake or was influenced by the mistake, or had failed to exercise its knowledge and expertise. The appeal was dismissed, as it was not for the court to explore the scientific integrity of the Agency’s assessment.


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