The applications proposed a deposit that would overlap an existing closed landfill cell with an angled liner designed to prevent leaching between the new and old cells. This so-called ‘piggybacking’ of landfill waste is likely to become more attractive as pressure grows to locate new voids.
The relevant legislation was the Landfill (England and Wales) Regulations 2002 and the Pollution Prevention and Control (England and Wales) Regulations 2002 made under the Pollution Prevention and Control Act 1999.
The legislation implements the 1996 EU Directive on integrated pollution prevention and control and the 1999 Landfill Directive. It was agreed before the court that the regulations were consistent with the Directives in all material respects.
The first key issue before the Court was whether a piggybacking landfill fell within the definition of an ‘installation’ under the Pollution Prevent and Control regulations.
These define an installation as a "stationary technical unit" where one or more activities listed in the schedule are carried out, together with any other location on the same site where other directly associated activities are carried out. Landfill disposal of waste is included as one of the listed activities.
The Agency argued that the concept of a technical unit should be interpreted in the context of the Directives and regulation, and required a high level of environmental protection and an integrated approach to environmental management.
In the Agency’s view, the piggybacking cell and the closed landfill cell were interdependent and operationally they had to be managed and regulated in an integrated manner. In that light, the piggyback cell could not be regarded as a separate technical unit.
The Court of Appeal agreed with the High Court that there was no reason why a new deposit in a defined area that excludes an old cell should not qualify as a technical unit under the regulations.
According to Lord Justice Pill: "An application is made for a permit for an installation which involves identifying a stationary technical unit. That can be done by identifying a space in which the scheduled activity can be carried out independently as a functionally self-contained operation. It does not fail to meet that requirement because of its likely impact on other areas, including closed cells."
The potential impact might be relevant in deciding whether or not to grant the permit, but the technical and environmental considerations arising from the closed landfill cell’s close proximity did not bear upon the legal definition of a technical unit.
The second key issue concerned the 1998 Groundwater Regulations, which implement the EC 1980 Groundwater Directive.
They provide that authorisation cannot be given "if it would permit" the direct discharge of a List I substance. Furthermore, regulation 13 provides that any measures taken under the regulations must not lead directly or indirectly to groundwater pollution.
In the context of a piggybacking application, the Agency argued that if the closed landfill were already leaking, a new application could not be granted unless it contained conditions preventing pollution from the whole landfill.
Anti-Waste argued that if the new landfill did not exacerbate the old discharge the authorisation could not be said to have permitted the discharge.
Lord Justice Pill agreed with the company: "The regulations contemplate a discharge, direct or indirect, which results from the activity to be authorised and its consequences but not a discharge extraneous in the sense that it is unrelated to the new activity."
He accepted that member states’ obligations under the Directive might mean a state was in default if it failed to end an old discharge, but the permit system should not be used to force a new applicant to end an existing, possibly long-standing, breach.
Although the Court of Appeal’s decision clearly indicates that, as a matter of law, the regulations and EC Directives permit piggybacking applications, the result does not necessarily give such applications a green light. The Agency stuck to its view that for technical reasons such applications were unlikely to be granted.
In this context, the Court of Appeal stated that it was unhappy at dealing with pure questions of law in the absence of clearly established facts and that the company should have first pursed its statutory right of appeal against the application’s refusal to the Secretary of State.
Although both parties sought declarations from the Court as to the state of the law, the Court found it impossible to agree an appropriate declaration in the absence of facts.
As Lord Justice Sedley noted rather tartly: "To do so without addressing the technical facts is to seek declarations of Delphic generality; to tie a declaration to ascertained facts is an impossibility if the court is not to take on the role of the Secretary of State; and to tie it to assumed or hypothetical facts is a waste of time."
Richard Macrory is professor of environmental law, University College, London