The House of Lords (Lords Hoffman, Hope, Walker, Brown and Mance) have dismissed the appeal into Edwards (also known as Pallikaropoulos) v. Environment Agency & Others from the Court of Appeal  EWCA Civ 877. The case took 3 days to argue in January.
The case concerned the legality of a PPC permit which included the trial burning of tyres as a partial substitute fuel at Rugby Cement Works and concerns the operation of the PPC permitting regime and its interface with the requirements of environmental impact assessment. Issues also arose as to the exercise of the judicial review discretion not to quash where the breach of the duty to act fairly comprises a failure to consult on reports which have subsequently been overtaken by events.
The House of Lords (the leading judgment was given by Lord Hoffman) held that the PPC application was valid, EIA was not required (although there was a different of views as to whether it was an amendment to an Annex 1 project under Annex 2 or a new Annex 1 project) and that in any event (notwithstanding Berkeley) there was substantial compliance with EIA requirements in the form of the PPC application. The failure to disclose an internal air quality modelling report by the Agency did not warrant quashing, since the information was out of date, and the HL endorsed the Court of Appeal’s exercise of the discretion not to quash:
“65. Thus the relevance of the AQMAU reports has been completely overtaken by events. We no longer need to rely upon predictions. We know what has actually happened. As Auld LJ said in the Court of Appeal (at para. 126) “it would be pointless to quash the permit simply to enable the public to be consulted on out-of-date data.” To this pointlessness must be added the waste of time and resources, both for the company and the Agency, of going through another process of application, consultation and decision. In my opinion, therefore, the judge and the Court of Appeal were right to exercise their discretion against quashing the permit.”
On the general approach to EIA, Lord Hoffman endorsed Sullivan J’s approach to determining the validity of environmental statements in R (Blewett) v Derbyshire County Council  Env LR 29 and also sounded a note of caution as to the over-rigorous application of Berkeley:
“63. … So in Berkeley v Secretary of State for the Environment  2 AC 603 it was conceded, and the House decided, that the Court of Appeal had been wrong to refuse to quash a planning permission granted without the impact assessment required by the EIA directive on the ground only that the outcome was bound to have been the same. The relevant domestic legislation provided that in such a case the grant of permission was to be treated as not within the powers of the Town and Country Planning Act 1990. Lord Bingham of Cornhill said (at p.608) that even in a domestic context, the discretion of the court to do other than quash the relevant order “where such excessive exercise of power is shown” is very narrow. The Treaty obligation to give effect to European law reinforces this conclusion. I made similar observations at p. 616. But I agree with the observation of Carnwath LJ in Bown v Secretary of State for Transport, Local Government and the Regions  Env LR 509, 526, that the speeches in Berkeley need to be read in context. Both the nature of the flaw in the decision and the ground for exercise of the discretion have to be considered. In Berkeley, the flaw was the complete absence of an EIA and the sole ground for the exercise of the discretion was that the result was bound to have been the same.”
In a postscript to his speech, at para. 66, Lord Hoffman (Lord Hope made similar comments) deprecated the attempt by the Appellant to make submissions on the merits after receipt of the draft judgment:
“In my opinion the submission of such a memorandum is an abuse of process of the procedure of the House. The purpose of the disclosure of the draft speeches to counsel is to obtain their help in correcting misprints, inadvertent errors of fact or ambiguities of expression. It is not to enable them to reargue the case.”
David Elvin QC acted for the Environment Agency, Defra and DCLG.