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Following a one-day hearing, the High Court has refused an application by Walleys Quarry Ltd, the operator of a landfill site in Silverdale, Newcastle-under-Lyme, for interim relief pending its appeal against a closure notice issued by the Environment Agency at the end of November.
Landfill closure notices initiated by the Environment Agency are rare; most landfills are closed at the initiation of the operator. In this case, the Environment Agency has initiated the closure of the landfill itself, citing long-standing concerns about the management of the site. In recent months, heightened levels of hydrogen sulphide in the vicinity of the landfill have led the UK Health Security Agency to recommend that “all measures be taken to reduce the off-site odour pollution from the landfill site, to reduce the health impacts experienced in the local community”.
The closure notice required the operator to cease accepting waste on 29 November and then undertake a series of remedial steps ahead of submitting proposals for the definitive closure of the landfill and the aftercare required.
The operator has exercised its right of appeal against the closure notice under the Environmental Permitting (England and Wales) Regulations 2016. The appeal will be heard at a public inquiry in May. In parallel, the operator has sought to challenge the closure notice on legal grounds in a claim for judicial review. Within that claim, the operator sought an interim order suspending the closure notice pending its appeal. The operator claimed that a denial of interim relief would be a breach of Article 6 ECHR as it would become insolvent, and therefore unable to fund an appeal, if not allowed to resume its normal operations in the interim.
Giving judgment on 4 February, Mrs Justice Heather Williams refused the operator’s application for interim relief, concluding that the operator had not demonstrated that there was a serious issue to be tried. Citing the judgment in ABC Ltd v HMRC [2017] EWCA Civ 956, the judge also held that the operator had failed to show, by “compelling evidence”, that there was a “high degree of probability” that it would become insolvent and therefore unable to exercise its right of appeal in May. The judge’s conclusions on these matters meant that the question of the balance of convenience did not arise. Nevertheless, the judge observed that the balance was in favour of refusing the interim relief sought in view of the volume of evidence of poor management at the site, and the strong public interest in enabling the Environment Agency to perform its statutory functions.
Having been required to consider the merits of the claim for judicial review in some detail, the judge also refused the operator permission to proceed with the claim.
The refusal of interim relief by the court means that the closure notice continues in full effect pending the operator’s appeal.
Gwion Lewis KC and Jacqueline Lean are acting for the Environment Agency in both the judicial review and statutory appeal proceedings.
There is extensive coverage of the history of the site on BBC News, including here.
