United Kingdom
Licences, Permits, Declaratory Relief, Damages, Air pollution, Standing
The appellant operated a sewage treatment plant facility that converted waste water to sludge for onward processing. The Pollution Prevention and Control (England and Wales) Regulations 2000 require all facilities involved in the disposal of non-hazardous waste by biological or physico-chemical treatment to be licensed by the Agency. The appellant argued the distinction between recovery and disposal of sludge, maintaining that, since it only had an intermediate role and did not ultimately dispose of the waste, it should not require a licence. The answer depended on the wording to be found in the Directive, as transposed into domestic legislation via the Pollution Prevention and Control Regulations 20004, and section 5.3 of Schedule 1, in particular. Did these plants carry out activities which amounted to: "Disposal of non-hazardous waste…by (i) biological treatment…which results in final compounds or mixtures which are discarded by means of any of the operations numbered D1 to D12 in [Annex IIA to Council Directive 75/442/EEC]; or (ii) physico-chemical treatment…which results in final compounds or mixtures which are discarded by any of the [same operations]…"? D1 to D12 of that additional Directive, the Waste Framework Directive, listed various disposal operations, principally forms of landfill or incineration. The Appellant said that the sludge plants did not fall within this definition. After all, the sludge was not disposed of at the sewage works. Hence there was not a disposal resulting in final compounds which are discarded, occurring at those plants. The House of Lords thought that this argument had “an attractive simplicity”. However, they, in line with the High Court and the Court of Appeal, rejected it because, agreeing with the Agency’s arguments, such an interpretation would produce “irrational results”. In dismissing its appeal, the House of Lords looked to the purpose of the statute, which was to protect the environment against potential damage from waste disposal operations.The Agency said that the words “which results in final compounds…” were designed to distinguish between waste which was destined for disposal and which underwent intermediate treatment operations prior to such disposal – wherever that disposal took place, and waste which underwent the same operations but which was destined for recovery. The House of Lords agreed. There was an ambiguity which “has to be resolved by the context and by looking at the scheme and purpose of the Regulations and the Council Directives which they implement.” The House of Lords divined within that scheme a clear general policy of preferring recovery rather than disposal, and hence a system which made the latter (disposal) more onerously regulated than the former (recovery) was entirely rational. By contrast, there was no obvious policy reason why the Directive should limit its scope to operations where the disposal was completed at the same site – which was the Appellant’s argument on the literal meaning.