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Applications for Environmental Permits: errors and mistakes – how much do they matter?

silhouette_engineer_looking_Loaders_and_trucks_in_a_building_site_over_Blurred_construction_worker_on_construction_site Print publication

03/04/2020

R. (on the application of BACI Bedfordshire Ltd) v Environment Agency [2019] EWCA 1962

This case raises an interesting point: does a mistake in an application, which is not relied upon by a regulator when it makes its decision, invalidate the regulator’s decision to issue an environmental permit?

The simple answer is ‘no’.

A key consideration for the Court was that the “mistake” did not impact the decision made by the Environment Agency’; it was not replicated in the permit and there was no evidence that it influenced the decision maker.

Consequently, the fact the applicant made an error in a supporting document was not ‘automatically’ an error made by the Environment Agency; its’ decision was not affected by the mistake.

This case provides reassurance to operators that the Court will take a sensible and robust operation to judicial review challenges and underlines the well-established approach that the Court will not ‘step into the shoes’ of the decision maker or unduly fetter the primary decision making role of the regulator.

The Facts

BACI Bedfordshire Ltd (BACI) applied for a judicial review of a decision by the Environment Agency to issue an Environmental Permit under regulation 13 of the Environmental Permitting (England and Wales) Regulations 2016 for the second respondent Covanta Energy. BACI, a local action group, opposed to the development argued that the permit was issued on a “factually incorrect and scientifically erroneous basis”. The site at issue was Rookery Pit in Staffordshire which was granted a development consent order on the 22nd November 2011.

The Issue

LJ Lindblom summarised the issue at para 1 of his judgement asking ‘did an environmental permit for a waste incineration plant incorporate an error made in the permit application, and, if so, what were the consequences in law for the permit?’

BACI contended the error was contained within supporting information forming part of the application submission and that it invalidated the permit issued by the Environment Agency.

Lindblom LJ delivered the unanimous decision of the Court.  Referring to the supporting documents, Lindblom LJ said “The clear inference to be drawn from the relevant documents is that [the Environment Agency] adopted a scientifically sound approach, and kept to that approach throughout”[i].

Lindblom LJ highlighted the error relied upon by BACI “was not the result of any misleading advice from the Environment Agency. And it was not perpetuated in the environmental permit, or in the decision document, or in any other document prepared or produced by the Environment Agency itself”[ii].

The appeal was dismissed.

Conclusion

The risk of challenge to Environmental Permits remains, whether from competitors or third parties. The key is ensuring that the application and evidence is robust and scientifically sound. It is reassuring to see the approach taken by the Court in this case, which will reassure regulators and applicants alike.

To minimise the risk of time consuming and costly judicial review proceedings, it is vital that applicants carefully review the evidence they submit for permits, ensuring that it is factually and technically correct, and legally robust.

If you need assistance with any of the issues raised in this briefing, please do not hesitate to contact any member of the Planning & Environment Team, who will be very happy to help.

[i] Paragraph 54 of the judgment

[ii] Para 56 of the judgment

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