Is a permit based on an erroneous application lawful?

If an application for an environmental permit includes an error and the permit granted incorporates the operating techniques described in the erroneous application, is the permit granted lawfully? The Court of Appeal has ruled that, where the error is immaterial, it is.

Bedfordshire Against Covanta Incinerator (BACI) applied for judicial review of the Environment Agency’s (EA) decision to issue an environmental permit to Covanta Energy Limited (Covanta) in January 2018 for the Rookery Pit Energy Recovery Facility. In November 2018 the Administrative Court rejected BACI’s claim. BACI appealed to the Court of Appeal.

At the core of the case was an error in the supporting information document submitted to the EA by Covanta as part of the permit application. A paragraph on preventing fugitive emissions of incinerator bottom ash (IBA) stated: “Any heavy metals within the IBA will be present as salts. These salts will be retained in solution when mixed with water and would not be expected to dissolve.” This statement was clearly wrong. The EA incorporated the operating techniques described in the supporting information document into the permit that it granted to Covanta.

Both the EA and Covanta conceded the error in the supporting information document, but the Administrative Court found that it had made no difference to the decision to issue the permit. BACI challenged that decision on four grounds: first, that the Administrative Court had misconstrued the permit as not containing the error of fact; second, that it had misdirected itself on the law relating to mistake of fact; third, that it should have acknowledged the risk of fugitive dust emissions occurring; and, fourth, that it was wrong to allow the EA a “margin of appreciation” in concluding that the permit was not unlawful.

On the first ground, the Court of Appeal noted that the permit granted incorporated only the parts of the supporting information document that described techniques by which the facility would be operated. The factually incorrect statement did not describe an operating technique.

On the second ground, BACI drew the court’s attention to several cases involving mistake of fact by a decision-maker, but the court ruled that this was not one of those cases, because the mistake had been made by the applicant, Covanta, and not the EA itself.

In its third ground of challenge, BACI argued that the existence of a dust management plan was evidence that the facility would fail to comply with the requirements of Article 46(5) of the EU Industrial Emissions Directive, which requires waste incineration plants to be designed and operated in such a way as to prevent unauthorised and accidental releases. Instead, the permit referred to “minimising” emissions. The court rejected these arguments on the basis that they were an attack on the EA’s assessment on its merits – something not possible in a judicial review claim.

The court also rejected BACI’s fourth ground of challenge, on the basis that the EA had made no mistake of fact or error of basic science, so the issue of whether it had a “margin of appreciation” did not need to be considered.

The error in the supporting information document relating to the solubility of heavy metal salts was such an obvious one that it is easy to say that an organisation such as the EA could not have been misled by it or committed the same error itself. This should give comfort to those who inadvertently make factual errors in complex permit applications.

However, this decision should not be seen as excusing all factual errors in permit applications, as if a regulator is misled by an error or commits the same error itself, then any judicial review proceedings challenging the regulator’s decision based on the error could have a different outcome.

R (BACI Bedfordshire Limited) v Environment Agency [2019] EWCA Civ 1962

A version of this article appeared in the ENDS Report in December 2019