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Article 2 and Article 8 ECHR engaged by failure to regulate hydrogen sulphide emissions from landfill - R (on the application of Richards) v Environment Agency and Walleys Quarry Limited [2021] EWHC 2501 (Admin)

Article 2 and Article 8 ECHR engaged by failure to regulate hydrogen sulphide emissions from landfill - R (on the application of Richards) v Environment Agency and Walleys Quarry Limited [2021] EWHC 2501 (Admin)

Landfill site

Judgment of Mr Justice Fordham handed down on 16 September 2021
Case note by Esther Drabkin-Reiter

Following an expedited rolled up judicial review hearing, the High Court has issued a declaration in terms that, in order to comply with its legal obligations, the Environment Agency (EA) must:

 “design and apply … such measures as, in the Agency’s regulatory judgment, will do and effectively achieve the following outcomes in relation to emissions of hydrogen sulphide from Walleys Quarry Landfill Site: (1) the reduction of off-site odours so as to meet … the World Health Organisation half-hour average (5 PPB i); and (2) the reduction of daily concentrations in the local area to a level … below the US EPA Reference Value (1 PPB) as the acceptable health-based guidance values for long-term exposure” ([64]). ii

The case arose in the context of long-standing complaints of odour nuisance and health impacts by neighbouring residents of a landfill site near Newcastle-under-Lyme, which has also recently been made the subject of an abatement notice under section 80 of the Environmental Protection Act 1990, currently under appeal

The case was brought by a five year old boy, Mathew Richards, on two main grounds:

  1. That the EA had failed to discharge its statutory duty under section 6 of the Human Rights Act 1998 (HRA) to protect his Article 2 ECHR right to life and Article 8 ECHR right to respect of private and family life.
  2. That the EA had failed to discharge its public law duties at common law to act reasonably and take reasonable steps to acquaint itself with relevant information ([1]). 

While in giving judgment Mr Justice Fordham was unwilling to state that there was a current breach by the EA of its legal obligations under the HRA and ECHR, he was not satisfied, on the evidence, that the EA had (yet) done what compliance with the applicable legal duties required ([63]).

Practical implications of the case

The decision is notable for a number of reasons. First, it adopts particular levels for hydrogen sulphide emissions with regard to short-term and long-term exposure to hydrogen sulphide. It also requires the EA to design and apply measures which, in its assessment, will achieve those levels. This is notwithstanding there being no nationally set levels for hydrogen sulphide emissions and the existence of an “information gap” in relation to the human health implications of long-term (chronic) exposure to low concentration hydrogen sulphide, especially in relation to children (14]). 

In addition, while the judgment does not go so far as to recognise a violation of Convention rights, it comes very close. This is particularly noteworthy in the case of Article 2 EHCR which “ranks as one of the most fundamental provisions in the Convention”, iii

Furthermore, in the context of judicial review, it is a rare example of a court being willing to delve in detail into evidence of complex scientific matters. This included hearing oral evidence from two experts using a “hot tubbing” approach as provided for in CPR PD35 at [11.1]-[11.4] ([5]). A significant proportion of the judgment is devoted to analysis of the evidence given in the hot tub by experts instructed by Mathew and the Interested Party, the operator of Walleys Quarry Landfill Site (WQLS), on the effect of hydrogen sulphide emissions on human health. The judge grappled with this evidence and did not accept or defer to the EA’s submission that it had in fact designed measures which in its view would be effective in reducing the pollution to acceptable levels ([62]-[63]). 

Finally, the judgment gives some helpful clarification on the interpretation and application of Strasbourg case law in the context of the regulation of industrial activity which could cause harm to human health ([36]-[57]).

However, in the main the judgment is a relatively conservative decision which is consistent with European and domestic human rights and public law jurisprudence in this context. 

As is clear not least from the analysis of Strasbourg case law at [36]-[41], the relevance of Articles 2 and 8 ECHR in the context of environmental regulation is well-established and indisputable. iv

In his assessment of the evidence, it is perhaps unsurprising that the judge rejected the experts’ views in favour of a more middle ground position. The two expert positions, one identifying a “good reliable safety level” far higher than internationally recognised guideline levels and the other advocating a “zero-tolerance approach” with no safe level above average ambient levels, may be seen as representing the two opposite ends of the spectrum ([27]-[31]). 

While the Court was not willing to defer to the EA’s professional and expert judgment as presented in its witness evidence and in counsel submissions, the judgment is clearly based on the findings of the “Fourth PHE Risk Assessment”. This was the most recent health risk assessment of air quality monitoring results in respect of WQLS, carried out by Public Health England, a state agency and “the responsible national body for public health and for protection from public health hazards” ([8]). 

Effectively, the reason for issuing the declaration was that it could not be demonstrated that the EA had taken into account the findings of and acted on the recommendations of the Fourth PHE Risk Assessment. In the main, this was because the measures relied on by the EA were put in place before that Risk Assessment had been issued (and therefore did not refer to it).

The background to the claim

The claim concerned the impact of hydrogen sulphide emissions from WQLS on Mathew, who lives some 400m from WQLS. Mathew was born prematurely with a number of complications causing respiratory difficulties. These include bronchopulmonary dysplasia (BPD). If Mathew is unable to recover from BPD, he will develop chronic obstructive pulmonary disease and consequently have a dramatically shortened life expectancy. Medical evidence was provided on behalf of Mathew and ultimately accepted by all parties and the Court. This indicated that Mathew is not recovering from BPD and that this non-recovery is attributable to current levels of hydrogen sulphide exposure from WQLS ([21],[24],[56]).

WQLS is regulated by an environmental permit issued by the EA, originally granted on 9 June 2005 and varied on 30 October 2020 to increase the annual waste input from 250,000 tons to 400,000 tons. Anecdotal evidence was provided by the local community in relation to the “lived experience” of residing near WQLS, which referred to unpleasant smells, trouble sleeping, nosebleeds, headaches, sore throats and itchy eyes ([16]-[18]). 

Monitoring undertaken at WQLS demonstrated that hydrogen sulphide emissions from the site were higher in 2021 than in 2017-2019, and had exceeded WHO guidelines and levels recommended in expert, peer-reviewed reports published by US agencies. This led PHE to make two recommendations in its Fourth Risk Assessment, namely that:

  • all measures are taken to reduce the off-site odours from the landfill site, as early as possible” ([32(5)], dealing with short-term exposure); and
  • 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” ([32(10)]).

The Court’s decision

The Court made a number of findings in relation to the case advanced on behalf of Mathew. First, it held that the case as to public law duties of reasonableness and reasonable enquiry added nothing to the claim on human rights grounds. In particular, the arguments on compliance with the duty of reasonableness would stand or fall with those on violations of human rights. The EA’s consultation of PHE as to health impacts and risks of WQLS was a complete answer to the claim that the duty of reasonable enquiry had been breached ([47]).

Having limited the issues for discussion to whether Articles 2 and 8 ECHR had been violated, the Court then found that Article 8 was the appropriate prism for assessing the reasonableness of the EA’s actions. However, Article 2 was not irrelevant and “the overlapping positive operational duties would not yield a different answer whether analysed as originating from Article 2 or Article 8” ([48]). 

Importantly, notwithstanding the fact that unlike Article 8, Article 2 is not a qualified right, there was a balancing act to be undertaken between competing considerations in the assessment of the EA’s actions against both rights. In the Court’s own words:

the latitude for judgment and appreciation, on the part of the public authorities charged with licensing and supervisory activities in relation to dangerous industrial activity, is extremely important” ([49]-[51]). 

In the case of industrial activity by private operators, the Court found that there was no need for a specific assumption of responsibility by the state in order to engage section 6 HRA or the Convention rights, but that “state licensing and supervisory responsibility suffices” ([53]). 

The Court held that both Article 2 and Article 8 were triggered. Article 2 was triggered on the basis that the EA were aware that Mathew had a condition which constituted an inevitable precursor to the diagnosis of a life-threatening disease. In relation to Article 8, there was a direct effect on Mathew’s home, family life and private life from adverse effects of severe environmental pollution above the relevant minimum level ([55]-[57]). 

As explained above, the Court ultimately found that the EA had not yet complied with its duties under Article 2 and Article 8. The Court agreed with the EA’s submissions that it should be afforded latitude in appraising the situation, conducting a suitable enquiry and identifying appropriate steps, and that it had taken the advice of the appropriate state agency, PHE. However, the Court held that there was no evidence that the EA had yet acted on the advice of PHE. In particular, there was no evidence of a:

“‘flight path’ to achieve landing at the outcome of hydrogen sulphide emissions from WQLS meeting [a reference concentration of 1 PPB for long-term exposure] from 1 January 2022” ([62]-[63]). 

The Court therefore issued a declaration effectively requiring the EA to take action to ensure that those legal duties would be complied with as swiftly as possible.

Esther Drabkin-Reiter is a barrister at Francis Taylor Building specialising in planning, environmental and public law.

i    Parts per billion
ii   References in square brackets are to paragraphs of the judgment unless otherwise indicated.
iii  European Court of Human Rights, Guide on Article 2 of the European Convention on Human Rights (August 2021) at [2].
iv  The limitations of the judgment in relation to the “greening” of human rights are discussed in a recent contribution to this blog.