Court of Appeal dismisses application for judicial review in relation to the Environmental Permitting Regulations

Judgment was handed down in R (o.a.o. Cleansing Service Group Limited) v Environment Agency on 15 February 2019. The Court of Appeal dismissed the claim for judicial review of policy guidance issued by the Environment Agency setting out its interpretation of provisions in the Environmental Permitting (England and Wales) Regulations 2016 (“the EPR”). The Claimant contended that the “S3 exemption” in Schedule 3 to the EPR authorised not only the storage of residual sludge from (inter alia) septic tanks but also the screening out of debris immediately prior to the storage of the sludge and the storage of that debris on site. Baker LJ (with whom Rafferty and Sharp LJJ agreed) held that:

• “Sludge” under both the Sludge Directive and the Sludge Use in Agriculture Regulations (“SUiAR”) did not mean “sludge including debris”;
• “Residual sludge” in the S3 exemption meant sludge that, after storage, was in a condition ready to be used in accordance with the Sludge Directive and the SUiAR – i.e. that had been treated and was simply being stored pending use;
• “Storage” under the S3 exemption did not include any form of treatment and the screening process that removed debris from the sludge was “unquestionably” a form of treatment; and
• Whether or not the S3 exemption was subject to the de minimis principle was something that could only be established on the facts of a particular prosecution.