On Thursday 16 September 2021 in the High Court, Fordham J handed down judgment in R (on the application of Richards) v Environment Agency and Walleys Quarry Limited [2021] EWHC 2501 (Admin) (“Richards”). The High Court declared that positive operational duties were triggered on the Environment Agency (“EA”) under the European Convention of Human Rights Act (“ECHR”): Article 2 right to life and Article 8 right to respect for private and family life. For the Environment Agency to comply with its operational duties, the Declaration identified that the EA must implement Public Health England (“PHE”) recommendations and advice regarding the dangerous hydrogen sulphide emissions emanating from a landfill site.

Facts of Richards

The Claimant is a vulnerable five-and-a-half-year-old boy who lives around 400 metres northwest of, and is particularly badly affected by hydrogen sulphide emissions from, the Walleys Quarry Landfill Site (“WQLS”).

The Claimant suffers with a respiratory condition, namely bronchopulmonary dysplasia (“BPD”). The current levels of hydrogen sulphide emissions from WQLS are hindering his recovery and lung development. Without being able to recover from BPD, the Claimant will develop chronic obstructive pulmonary disease (“COPD”) which would dramatically shorten his life expectancy.

The Defendant, the EA, is responsible for pollution control and regulates the WQLS, which operates under an environmental permit issued by the EA. This was originally granted on 9 June 2005 and most recently varied on 30 October 2020.

The WQLS hydrogen sulphide emissions have also subjected the wider local community to unbearable living conditions (involving bad smells, fumes, headaches, sore throats, itchy eyes etc.) leaving residents concerned about the impact on their physical health.

PHE, an executive agency of the Department of Health and Social Care, undertook and published key assessments that monitored air quality (“Fourth PHE Risk Assessment”) and emissions emanating from the WQLS. The monitoring results indicated that the hydrogen sulphide emissions exceeded WHO guidelines, resulting in the following key recommendations in the Fourth PHE Risk Assessment:

PHE strongly recommends that all measures are taken to reduce the off-site odours from the landfill site, as early as possible

PHE strongly recommends that all measures are taken to… reduce the concentrations in the local area to levels below those health-based guidance values used to assess long-term exposure.

The Claimant sought judicial review on the basis that the EA had failed to discharge its statutory duty under section 6 of the Human Rights Act 1998 (“HRA”) to protect his ECHR Article 2 and Article 8 rights.

The key questions for the Court were whether the EA had discharged:

  1. its statutory duty under section 6 HRA to protect the Claimant’s ECHR Article 2 right to life and Article 8 right to respect for private and family life; and
  2. its public law duties at common law to act reasonably and take reasonable steps to acquaint itself with relevant information.

Judgment

The High Court found that the EA had not discharged its statutory duty and had not complied with its duties under Article 2 and Article 8. The Court confirmed that regulators like the EA have a positive obligation to take reasonable steps and employ appropriate measures to “secure practical and effective human rights safeguards”.

Fordham J held that there was a real and immediate risk to the Claimant’s life which was significant and substantial; present and continuing. In triggering the positive operational duty under Article 2, the Court identified BPD as an inevitable precursor to a serious illness reducing life expectancy and accelerating death. It was this inevitability that the Court found attributable to the Claimant’s on-going exposure to the current level of hydrogen sulphide emissions from WQLS. Fordham J cited Rabone v Pennine Care NHS Trust [2012] UKSC 2 (“Rabone”) in finding that as the operational duty was triggered, the EA knew or ought to have known of the real and immediate risk to life and “failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk” (Rabone [12]).

In addition to the operational duty under Article 2, the Court was satisfied that the environmental pollution also had a direct effect on the Claimant’s home, family life and private life. This triggered a positive operational duty under Article 8. This duty required the EA to take reasonable and appropriate measures to secure the right to private and family life, striking a fair balance between the interests of the Claimant and the community as a whole. The Court found that no fair balance had been struck.

The Court also indicated that the EA had failed to implement the clear advice and recommendations identified by PHE. Hence, it had failed to comply with its positive operational duty, given the real and evidenced health concerns of the Claimant. The Court was not satisfied on the evidence that the EA had taken reasonable and appropriate steps to act on PHE’s advice to comply with the applicable legal duties. In fact, the EA failed to indicate how the key recommendations in the Fourth PHE Risk Assessment had been addressed, despite the EA’s witness statement and defence being dated the following day.

Fordham J granted a declaration that the Environment Agency must implement the advice of PHE as expressed in the Fourth PHE Risk Assessment by designing and applying (and continuing to design and apply) measures that would, in its judgment, effectively reduce the odours and concentration of hydrogen sulphide emissions from WQLS.  This was found to be an obvious and pressing public interest imperative that the EA needed to address as a matter of urgency. The Court indicated that it also expected the EA to publish how it had done so. However, the Court stopped short of declaring a current breach by the EA of its legal duties, preferring to focus on the authority addressing its legal duties/objectives to “secure practical and effective human rights safeguards”.

Comment

This human rights judgment effectively deals with Article 2 and Article 8 of the ECHR in the pollution and environmental contexts. The Court did not shy away from imposing positive operational duties on state authorities for ongoing environmental pollution and dealt confidently with overlapping claims under Article 2 and Article 8. Indeed, Fordham J took the unusual step of summarising the key Strasbourg case-law in this area and providing an incisive distillation of the key propositions arising from it (at [36] to [42]).

Secondly, Richards is an example of “hot-tubbing” of witnesses to promote accessibility and transparency. This approach is relatively uncommon in a public law challenge. It involved concurrent expert evidence being given to provide assistance to the Court as to the experts’ ideas and opinions in a direct interactive discourse. The court placed significant importance on technical expert evidence and reports regarding emission levels as being necessary in understanding the impact on the Claimant and the wider local community. That said, the Court robustly emphasised the limits of its role. Although it engaged with the expert evidence in detail, and the judgment goes to some lengths to summarise it, the Court drew firm boundaries around its role, stating that it would be inappropriate for it to adopt any particular guideline level or value for hydrogen sulphide emissions and it would be inappropriate and unnecessary for the Court to identify any particular step or steps which the EA should be requiring WQLS to take. It limited itself to finding that the current level of hydrogen sulphide from WQLS triggered a positive operational duty under Articles 2 and 8. Fordham J was firm that “Like the Strasbourg Court, it is not this Court’s ‘task to determine what exactly should have been done in the present situation to reduce pollution in a more efficient way’ and ‘to dictate precise measures which should be adopted’.”

Interestingly, the judgment considered the experiences of the local community to be relevant to the balancing of competing considerations in the application of the ECHR, despite other community members not being parties to the proceedings.