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R (on the application of Anti-Waste Ltd) v Environment Agency

DATE: 04 Apr 2007

The claimant company applied to quash the refusal by the Environment Agency ("EA") of permits to allow it to deposit waste in two landfill sites and sought declarations to establish the true construction of material provisions in the relevant landfill regulations. The Claimant had sought to landfill at two sites so that the waste it deposited would overlap that in a previous existing closed cell of waste, a procedure known as “piggybacking”. The EA refused permission on the basis that piggybacking was not permitted by Directive 1999/31, which was implemented by the Landfill (England and Wales) Regulations 2002. The lawfulness of piggybacking fell to be determined and issues arose as to whether (i) a landfill permit could lawfully be granted for the separate operation of a landfill that partially overlaid a closed cell containing previously deposited waste; and (ii) if a permit had to relate to the whole site, namely the proposed landfill together with the closed cell, the EA was required to refuse to grant a permit where the existing deposits in the closed cell were responsible for harmful discharges to groundwater and where the landfills as a whole could not be made to comply with the technical requirements of the relevant landfill directives. The Claimant, contended that piggybacking was lawful and that a permit could be granted if the technical difficulties were overcome.

Collins J. held:

(1) A permit could not be granted for piggybacking if there was any serious risk that, as a result of the new deposits, pollution might occur from the old cell, for example because of compression. Equally, there had to be no interference with the ability to control any pollution from the old cell such that there was a risk of serious pollution of the environment. Thus, if engineered barriers might not survive for a sufficiently long time to cater for any after care requirements, a refusal would be justified. In principle, however, there was no reason why a new deposit in a defined area that excluded an old cell should not qualify. Piggybacking as claimed by the Claimant was therefore lawful only if it could be demonstrated that there was no serious risk of pollution either currently or in the future, and a landfill permit did not have to refer to the whole site including the old cell. (2) In the light of that decision, the groundwater issue did not arise for determination but had an installation to have been regarded as including an existing closed cell, the Groundwater Regulations 1998 would prevent the grant of an authorisation if there were any relevant discharges whether or not the new deposits themselves caused any such discharges.

The Claimant was granted declaratory relief. The EA have appealed to the Court of Appeal.

James Maurici submitted written arguments to the Court on behalf of Defra as an Interested Party.