EA Told To Think Again On Merits-Based Reviews Of CAR Decisions

• Published date: 19 January 2024
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation
• Law Firm: Burges Salmon
• Author: Victoria Barnes and Eilidh Wood

In the case of R (Suez Recycling and Recovery UK Ltd) v Environment Agency [2023], the Administrative Court held that the EA was bound to consider the need for a merits-based appeal process in respect of Compliance Assessment Report decisions

In the recent judicial review case of R (Suez Recycling and Recovery UK Ltd) v Environment Agency [2023] the Administrative Court ruled that the Environment Agency ("EA") failed to comply with the Regulators' Code in not considering whether to provide a proper appeal mechanism for challenging Compliance Assessment Reports ("CARs"). This decision is important for anyone who holds an environmental permit, as an adverse CAR can have serious consequences.

Background

Suez Recycling and Recovery UK Ltd ("Suez") was the owner and operator of the Byker Reclamation Plant (the "Plant") which benefitted from an environmental permit (the "Permit") regulated by the Environment Agency (the "EA"). The permit was subject to a number of conditions, including the requirement that emissions released from the Plant were free from odour:

"at levels likely to cause annoyance outside the site, as perceived by an authorised officer of the Agency, unless the operator has used appropriate measures, including those specified in any odour management plan, to prevent or where that is not practicable to minimise the odour."

In August 2020, the EA issued Suez with two negative CARs, citing breaches of the above condition as observed by their officers on 31 July and 7 August respectively. On both occasions the Officers found that the odour levels amounted to a Category 2 breach (significant impact or effect on the environment, people and/or property) under both the Compliance Classification Scheme ("CCS") and Common Incidents Classification Scheme ("CICS").

Negative CAR decisions can have a detrimental impact on recipients: from reputational damage to real financial loss. CAR assessments are also linked to the amount of subsistence payment payable by an operator to the EA in respect of their regulated premises, and this case became a perfect example of the latter, as the fact that the assessments were carried out across two calendar months, meant that Suez was faced with an additional 50% uplift on their existing subsistence payment.

Suez initially brought an action for judicial review in 2020, however this was refused on the basis that it was yet to exhaust its alternative remedies (i.e. the EA complaints procedure). The complaint was escalated to...