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R (Friends of the Earth) v Environment Agency [2019] EWHC 25 (Admin) The Planning Court (Supperstone J) has given judgment rejecting a challenge by Friends of the Earth to the environmental permit granted by the Environment Agency to Cuadrilla Bowland for its mining waste related activities at the Preston New Road site. The challenge grew out of a variation to the permit granted by the Agency on 11 December 2017. The Preston New Road site is one of the first sites to receive planning permission in the UK. FoE argued that the Agency was required to reconsider whether the permit required the use of the “best available technique” (“BAT”) for the management of mining waste, and in particular for management of fracturing fluid injected into the Bowland Shale. It argued that a proper BAT analysis would have led to a requirement to use the electrocoagulation technique. The Agency and Cuadrilla successfully argued that the Agency was not obliged to reconsider BAT in relation to fracturing fluid in circumstances where the permit variation sought by Cuadrilla had no direct implications for the amount of fracturing fluid that would be injected. Under the Mining Waste Directive and the Environmental Permitting Regulations, the Agency was only required to review either the Waste Management Plan, or the permit conditions, where there was a “substantial change to the operation of the waste facility or the waste deposited”. This obligation to review the WMP and permit conditions was exhaustive of the circumstances in which such review was required and hence no such review was triggered by the making of a variation application which did not give rise to such “substantial change”. Matthew Reed QC and Matthew Dale-Harris appeared for the Claimant, Friends of the Earth. Tim Buley appeared for the Environment Agency. Nathalie Lieven QC, as she then was (now Lieven J) appeared for Cuadrilla.
