High Court imposes positive operational duties on state authorities in environmental pollution context

25 November 2021

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 had been triggered on, and had been breached by, 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. The duties arose and were breached because the EA had failed to implement Public Health England (“PHE”) recommendations and advice as to 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 Article 2 breach, 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 constituted a breach by the EA of its 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.

Further Information

If you have any questions or concerns about the topics raised in this blog, please contact Nick Wrightson or any member of the Public Law team.

 

About the Authors

Nick Wrightson is a Partner in our Public Law team. Nick has an administrative and public law practice focused on judicial review litigation and supporting clients through public inquiries and complex inquests. Nick’s experience includes representing public bodies, private companies, individuals, representative bodies and charities – often in high stakes, politically and commercially sensitive cases.

Hawa Jogi is a paralegal in the Public Law team.

 

Latest blogs & news

High Court imposes positive operational duties on state authorities in environmental pollution context

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 had been triggered on, and had been breached by, 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. The duties arose and were breached because the EA had failed to implement Public Health England (“PHE”) recommendations and advice as to dangerous hydrogen sulphide emissions emanating from a landfill site.

The Judicial Review and Courts Bill: Proposed reform of Judicial Review

Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.

As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.

Data protection law reform: A new direction? Part 1: Fixed and flexible ‘legitimate interests’

In this blog series, we will review the key proposals for reform of data protection law within the Government’s consultation paper ‘Data: A New Direction’. We will consider how far the Government will stray from the current path and signpost some potential pitfalls and practicalities for consideration along the way.

We begin with the Government’s proposals for creating a ‘whitelist’ of legitimate interests which always provide a lawful basis for processing under the UK GDPR. 

Can you refuse to give evidence to a public inquiry?

Individuals asked to give evidence to public inquiries often wonder whether they really have a choice. The case of Chairman of the Manchester Arena Inquiry v Taghdi [2021] EWHC 2878 (Admin) illustrates how refusing to participate might play out. Potential witnesses in next year’s coronavirus (Covid-19) inquiry take note.

Having our cake and eating it: Parliamentary sovereignty in light of Brexit and the Covid-19 pandemic

One of the key themes of the Brexit campaign was for the UK to retain Parliamentary sovereignty, or “Take Back Control.” This blog focuses on that aspect of Brexit and revisits previous discussions around delegated legislation and Parliamentary sovereignty to assess the effect of the past 9 months on our Parliament.

Reform of the Human Rights Act: The Lord Chancellor’s “mechanism” to correct judgements

At the recent Conservative party conference, the new Lord Chancellor, Dominic Raab, signalled his intention to “overhaul” the Human Rights Act 1998 (the ‘Act’). It has since been reported that he is working on a “mechanism” to allow the Government to introduce ad hoc legislation to correct court judgements that ministers believe to be incorrect. Whilst the precise details of any mechanism remain to be seen, this notion is constitutionally problematic in that it potentially grants the executive wide powers to override the judiciary.

Preparation for Public Inquiries - Webinar Summary

In light of the announcement that an independent inquiry into the Government’s handling of the coronavirus pandemic will begin in spring 2022, Kingsley Napley hosted a webinar last week on the theme of Preparing for Public Inquiries in conjunction with Blackstone Chambers and FTI Consulting. For anyone who missed this event, a recording is available here (LINK) and we have also prepared the summary below.  

What is Next for GDPR in the UK, is Change on the Horizon?

The General Data Protection Regulation (known to everyone as the GDPR) is probably the most famous piece of legislation to come from the EU. It was and is incredibly ambitious in its scope, and shapes the way we engage with organisations both online and in the real world. When the UK formally withdrew from the EU, GDPR became retained EU law and continued to apply as before. The government have recently announced that they want to reform data protection legislation, but substantial deregulation might be an unrealistic ambition.

Case Note – challenging the Court’s jurisdiction in judicial review proceedings: R (Girgis) v Joint Committee on Intercollegiate Examinations [2021] EWHC 2256 (Admin)

The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.

New guidance encourages judicial review practitioners to be concise, succinct and prepared

Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.

Can you devise an effective ouster clause to exclude a category of decision making from judicial review?

The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.

The UK Supreme Court has confirmed the principles for judicial review of policies

R (A) v Secretary of State for the Home Department [2021] UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department [2021] UKSC 38

Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.

Case Note – costs of interested parties in judicial review proceedings: CPRE Kent v Secretary of State for Communities and Local Government UK/SC 2019/0174

The Supreme Court has, unusually, recently heard, and now delivered judgment on, an appeal concerning costs in statutory appeal and judicial review cases.  It is unusual for costs issues to be considered significant enough to merit consideration by the Supreme Court and, not least given the outcome of the appeal – and of course it is easy to be wise after the event – it is something of a surprise that permission to appeal was granted in the first place.

Regulating working conditions: a ‘one stop shop’ approach to tackling modern slavery

To meet widespread concern about vulnerable workers and working conditions in industries including agriculture, fashion, food and waste disposal, last month (June 2021) the government set up a new watchdog to take over responsibility for tackling modern slavery, enforcing the minimum wage and protecting agency workers.

Data Subject Access Requests: The Do’s and Don’ts for Charitable Organisations

A Data Subject Access Request, or DSAR, is any request made by an individual for their own personal data. While they are quick and easy for an individual to make, many long hours and significant resources from your organisation will be needed in order to properly respond.

Judicial Review Reform – waiting for the sting

Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.

Safeguarding - 5 golden principles for school leaders

Over the past few weeks there has been a steady stream of disturbing stories alleging sexual harassment and sexual abuse of children attending a variety of schools across the country, not just incidents involving children and adults but in many cases peer-on-peer abuse.

A review of the SRA's Upholding Professional Standards Report 2018/19

The SRA introduced a new assessment and early resolution process focusing on upfront engagement and delivering, where possible, earlier outcomes on concerns reported to it. Additionally, in February 2019, the SRA introduced a revised Enforcement Strategy, setting out its approach to enforcement and the factors it will take into account when considering whether regulatory action is needed. 

Government Launches Public Consultation on Reforms to Judicial Review

On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.

Coaching, Teaching and Support Work in Lockdown: Safeguarding and Data Protection considerations when working with children online

The COVID-19 crisis has forced sports clubs, schools, universities and charities to rapidly change their approaches to coaching, teaching and support work. The regulations on social distancing have forced organisations to innovate; services which had previously been offered mostly or wholly in person were rapidly shifted online during “lockdown 1” and will return online at least for the duration of “lockdown 3”.  If the vaccine rollout has the desired effect there will no doubt be some return to “traditional” methods, but it seems very unlikely that the changes brought about by the pandemic will be completely reversed.  In this blog, Claire Parry from Kingsley Napley’s Regulatory team and Fred Allen from the Public Law team look at the challenges organisations face engaging with children online.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

Skip to content Home About Us Insights Services Contact Accessibility