Rockware Glass Ltd., R (on the application of) v Quinn Glass Ltd & Anor, Court of Appeal - Civil Division, June 15, 2006, [2006] EWCA Civ 992,[2007] Env LR 3,[2007] JPL 217

Resolution Date:June 15, 2006
Issuing Organization:Civil Division
Actores:Rockware Glass Ltd., R (on the application of) v Quinn Glass Ltd & Anor
 
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C1/2005/2514, C1/2005/2514C, C1/2005/2514D & C1/2005/2514Y

Neutral Citation Number: [2006] EWCA Civ 992

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(HIS HONOUR JUDGE GILBART QC)

Royal Courts of Justice

Strand

London, WC2

Date: Thursday, 15th June 2006

B E F O R E:

LORD JUSTICE BUXTON

LORD JUSTICE RICHARDS

SIR CHRISTOPHER STAUGHTON

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THE QUEEN ON THE APPLICATION OF ROCKWARE GLASS LTD

APPELLANT

- v -

(1) QUINN GLASS LIMITED

(2) CHESTER CITY COUNCIL

RESPONDENTS

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(DAR Transcript of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

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MR R DRABBLE QC & MR R TAYLOR (instructed by CMS Cameron McKenna, EC1A 4DD) appeared on behalf of the First Appellant.

MR S TROMANS (instructed by Messrs Eversheds, 1 Royal Standard Place, Nottingham, NG1 6FZ) appeared on behalf of the Second Appellant.

MR R GORDON QC & MR J PEREIRA (instructed by DLA Piper Rudnick Gray Cary, 2 Princes Square, Leeds, LS1 4BY) appeared on behalf of the Respondent.

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J U D G M E N T

  1. LORD JUSTICE BUXTON: This judgment sets out no more than the background facts that are necessary to understand the issues and the judgment's conclusions upon them. Anyone who thinks they need to learn more about the matter can safely consult the full and careful judgment of HHJ Gilbart QC [2005] EWHC 2250 Admin.

  2. The case concerns a substantial industrial installation for the manufacture of glassware, located at a former power station at Elton, which is on the borders of the district of the city of Chester and Ellesmere Port in Neston. This is an area, as the judge pointed out, long known for its substantial industries, including petrochemicals, and refineries.

  3. The present works have been designed, as the judge found, to be the largest glass container work factory in Europe. It is a development by Quinn Glass Limited (``Quinn''), who are a major manufacturer of glass but, as the judge understood, a relative newcomer in the United Kingdom.

  4. The construction and operation of this plant required various authorisations, two in particular. First, the grant of planning permission under the 1990 Act and second, and this is the matter which the court is principally concerned, a permit under the Integrated Pollution Prevention and Control Regime (``IPPC'') designed for pollution control. It will be necessary to describe that regime in some more detail later on.

  5. The challenge in these proceedings relates to an IPPC permit issued by Chester City Council (``Chester''), the designated regulator, on 2 March 2005. The permit imposed a wide range of environmental restrictions on the operation of the plant, a matter to which I shall have to return in detail. The present case is however limited to the permit's requirements in relation to the emission from the plant of oxides of nitrogen, NO2. The legality of the permit in that respect was challenged before the judge by a competitor of Quinn, Rockware Plc (``Rockware''). The judge quashed the permit but suspended the operation of his order pending an appeal to this court.

  6. Having had the benefit of the judge's judgment, Chester no longer seeks in this court to maintain its certificate in its present form but Quinn, as an obviously interested party strenuously contend before us that the judge was wrong.

    The statutory framework

  7. The present case relates to the European Union's regime for pollution control. Starting with article 174, as it now is, (2) and (3) of the EC Treaty:

    ``(2) Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.''

    [Those are sentiments that appear later in this case]

    ``(3) In preparing its policy on the environment, the Community shall take account of: available scientific and technical data, environmental conditions in the various regions of the Community, the potential benefits and costs of action or lack of action and the economic and social development of the Community as a whole and the balanced development of its regions.''

  8. Those are sentiments which, in particular the reference to the potential benefits and costs of action or lack of action, again play a role later in the appeal. That regulation in the treaty is supported by three Directives with which we are concerned. The first is Directive 96/61, the Integrated Pollution Prevention and Control Directive, which I shall refer to hereafter as the IPPC Directive. Secondly, effectively as part of the same legislative exercise though passed some three days later than the IPPC Directive, is Directive 96/62 EC, the Ambient Air Quality Assessment and Management Directive. I shall refer to that as the Air Quality Directive. Third, and playing a lesser but not insignificant role in this case, is Directive 1999/30 EC, the Emissions Limit Values Directive, which lays down within the framework of the Air Quality Directive certain minimum standards for what are described as emissions limit values (ELVs). That is the unit or standard by which the quality of air is measured.

  9. Finally, and in the domestic sphere, we are concerned with Regulations passed in the year 2000, the Pollution Prevention and Control (England) Regulations (``the Regulations''). Although, strictly speaking, it is the Regulations that affect domestic operation, and there is no suggestion that the present Regulations do not properly implement the Directives, nonetheless it has been regarded as convenient and not inappropriate for argument to focus principally on the terms of the Directives.

  10. In addition to the Regulations the domestic regulator, such as Chester, has the benefit of guidance issued pursuant to Regulation 37(2) of the Regulations. The two documents in question are the Secretary of State's general guidance manual on policy and procedures of March 2003 which the judge called, and I will call, ``the Manual'', and a sector guidance note, IPPC SG2, which is the Secretary of State's Guidance on Glass Manufacturing Activities with a Melting Capacity of More Than 20 Tonnes Per Day, which describes itself in its paragraph 1(2) as giving statutory guidance:

    ``On the integrated pollution control standards appropriate for the generality of new and existing A2 installations in the glass manufacturing sector.''

  11. The plant with which we are concerned does indeed have a melting capacity of more than 20 tonnes per day and therefore this guidance note is relevant to it. It will be referred to hereafter as ``SG2'' and is of significant importance in this case.

    How the permit was granted

  12. The responsible person for pollution control in Chester was a Mr Hosker. He reported to the chief executive, a Mr Durham. For regulatory purposes, emissions are judged according to the ELV, already referred to, of the process in question, judged by units described in terms of grams per cubic metre: g/nm3. Mr Hosker concluded, and Mr Durham accepted on his advice, that the regulatory obligations under the Directives and Regulations would be achieved by requiring of the Quinn plant emission limits in a reducing scale, reducing to the end of 2009. That which was included in the permit, set out for convenience at paragraph 127 of the judge's judgment and elsewhere, provided for 1000 ng by the end of year one, 900 by the end of year two, 750 by the end of year three and 500 by the end of year four, those years being broadly judged from the date of the permit, so that the standard or limit of 500 mg would not be reached until the year 2009.

  13. How Mr Hosker reached that formulation is a matter of central importance in this case and I shall have to come back to it. The acceptance of that formulation by Mr Durham was important because it was he who took the decision to issue the permit. In doing so, he acted or conceived himself to be acted under delegated powers contained in rule 29 of the council's procedure rules. That was a power:

    ``To deal with matters where a decision is nominally to be made by the Council [I interpose, but] is governed substantially by matters of fact or technical factors so there is no real discretion.''

  14. That is the case that Mr Durham thought, on advice from Chester's lawyers, he was dealing with here. I would only comment at this stage that it is, to put it at its lowest, a striking fact that a permit for what is, as the judge found, the biggest glassworks in Europe never went anywhere near the elected representatives of the citizens of Chester, and was determined by the chief executive in an informal meeting of which no record was kept.

    The Directive and the Judge's view of it

  15. The recitals and general provisions of the IPPC Directive to some extent pull in two different directions, as was stressed before us by Quinn. First, there is emphasis on the need for a high level of protection for the environment. I should read at least some examples of that. Recital 8 says:

    ``Whereas the objective of an integrated approach to pollution control is to prevent emissions into air, water or soil wherever this is practicable, taking into account waste management, and, where it is not, to minimise them in order to achieve a high level of protection for the environment as a whole.''

    And Recital 14:

    ``Whereas full coordination of the authorisation of procedure and conditions between competent authorities will make it possible to achieve the highest practicable level of protection for the environment as a whole.''

  16. That is repeated in the articles themselves. For instance, article 1 says:

    ``The purpose...

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