This was an appeal by the appellants on behalf of a large number of residents of Rugby, against the refusal of the inferior court to quash a conditional permit granted by the Environment Agency to Cemex UK Cement Ltd, pursuant to regulation 10 of the Pollution Prevention and Control (England and Wales) Regulations 2000 for the continued operation of its cement plant in Rugby, including, as a new proposal, the burning of waste tyres as a partial substitute for conventional fuel in the kiln at the plant.
Cemex Ltd had submitted to the Council an environmental statement providing information in general terms about likely emissions from the proposed plant, but no detailed assessment of them or of their environmental impact, relying upon the integrated pollution control ("IPC") regulatory regime then in force. In 1999 the Agency authorized Rugby Ltd to operate the plant under that regime. In 2000 however, a new statutory regime ("the PPC regime") was introduced, introducing stricter substantive and procedural controls than those governing the IPC regime. In order to continue its operation of the cement works, Cemex Ltd had, therefore, to apply now to the Agency for a permit under the new regime. It did so on 21st August 2001.
Because of expressions of concern in the consultation about the likely impact on the environment of the introduction of burning of tyres, the Agency, in 2002 asked its Air Quality Monitoring and Assessment Unit ("AQMAU") to review the projections of Cemex Ltd, upon which it had relied in predicting insignificant environmental effect. AQMAU did that in relation to emissions from the main stack and of low level dust. In the course of its review, AQMAU obtained data as to the low level emission points and other, factual information. This information was not made available to the public for comment.
In its Decision Document, the Agency concluded that the use of tyres as a partial substitute for conventional fuel in the kiln, in conjunction with low level emissions of dust, would have no significant impact on the environment and would involve no significant risk to human health. On 12th August 2003 the Agency issued a conditional PPC permit. The conditions therein imposed stricter environmental controls than the IPC authorisation they replaced.
The appellants argued that there had been a denial to the public of adequate information to enable it fully to evaluate and understand the extent of the emissions.
The Court held that the non-disclosure of the AQMAU Reports left the public in ignorance, until the Agency’s grant of the permit, of the full information as to the extent of the low level emissions of dust and the information on their possible impact on the environment. It was of the view that such information was potentially material to the Agency’s decision and to the members of the public who were seeking to influence it. The failure by the Agency to disclose it at the time was a breach of its common law duty of fairness to disclose it.
It could not see, however, a basis for the argument that the Agency failed to comply with its obligations under the PPC Regulations in treating the application as valid. It therefore dismissed the appellants’ appeal against the rulings that the Respondents were not in breach of the PPC Regulations.