The case itself concerned a judicial review of the Environment Agency (EA) decision to remove the target date for implementing the sludge strategy.  The main proposal in the strategy was to move from regulating sludge under the Sludge (Use in Agriculture) Regulations 1989, and a related code of practice, to a modified version of the environmental permitting regime.  This involved the EA asking the Secretary of State to exercise legislative powers, and so was not directly within their control.  The sludge strategy was published in March 2020 with a target date of 2021.  It was then reissued just a few months later with a target date of 2023.  The challenge was to the reissue of the strategy in 2023 without any target date.  

The claimant’s main arguments were that removing the target date was outside the range of reasonable responses open to the EA and involved an unexplained gap or leap in reasoning which failed to justify the conclusion reached.  This was based on the contention that the EA had included a target date before, based on consideration of evidence, recognising urgency and the need for a deadline.  

The claimant also alleged a failure of the Tameside duty on a decision-maker to take reasonable steps to acquaint itself with relevant information, because it had not considered the environmental impact of removing the target date.  It also argued that the EA was an independent regulator and should not be dictated to by DEFRA.  

There was a subsidiary argument made by the Secretary of State that reference to the answers to two Parliamentary questions were inadmissible under Article 9 of the Bill of Rights 1689.  Article 9 gives proceedings in Parliament protection from being impeached or questioned in any court.  This argument was rejected by Fordham J, who took the view that the contents of the answers were not being questioned, impugned or interpreted, and so reliance on them was appropriate.  

The most interesting feature of the case was the Judge’s consideration of the nature and intensity of review in environmental judicial review.  Fordham J took as a starting point what had been said in R (Packham) v SSfT [2020] EWCA Civ 1004 at [51]:

“In our view, however, this is unquestionably the kind of case in which the court should refrain from anything beyond a "light touch" approach, applying the traditional test of "irrationality". It is, of course, fundamental that both the intensity of review and the extent to which a court will accord a margin of judgment or discretion to a decision-maker will always depend on fact and context. The intensity of the review and the breadth of the margin of discretion accorded are conceptually different. The court may closely scrutinise the reasoning for a decision yet still conclude it is proper to accord the decision-maker a broad margin of discretion.”

Fordham J observed at [30] that “the central point is that what the judicial review court is looking for, and what it needs, does not involve substitutionary review on a correctness standard; but a reasonable justification, from the reasons put forward, recognising who is the primary decision-maker with the built-in latitude for evaluation and choice”.  

The Judge rejected the claimant’s argument that all Aarhus Convention claims – that is claims alleging contraventions of national law related to the environment – should attract a close intensity of review.  The claimant also, unsuccessfully, urged the Judge to depart from what had been said by Mr Justice Gilbart in R (Dillner) v Sheffield CC [2016] EWHC 945 (Admin) at [184]-[187], where he rejected the argument that there is a different standard of review in an Aarhus Convention case.  Fordham J held that the Aarhus test does not stand as a test for uniformly heightened scrutiny.  

Mr Justice Fordham noted that the court asks if there is a reasonable justification for a decision, from the reasons advanced, and that the public law unreasonableness standard involves variations in intensity of review to reflect the nature of the interest affected.  He held that the intensity of court’s scrutiny of rationality is context-sensitive and that the position depends on context-specific features of the individual case, by which the intensity of review is calibrated.  

Factors identified in the judgment as suggesting that a low intensity of review was appropriate included decisions involving:

• evaluative or predictive judgement
• a technical or complex area
• matters of political or policy judgement
• legislative functions

It would also be appropriate in those claims which presented problems arising from the institutional or process limitations of the court.

On the other hand, factors identified in the judgment as pointing to more intense review were:

• the seriousness of an environmental problem
• the importance of the issue
• a publicly-recognised need for change

Fordham J held that, in the case of the sludge strategy decision, there should be careful scrutiny, but no narrowing in the latitude afforded to the EA and no requirement for stronger reasons than usual to justify action as reasonable.  He held that the EA had a broad latitude.  

The consideration by Mr Justice Fordham of the question, on which there was some conflict in previous first instance authorities, is helpful to provide clarity.  It does not, however, make any real change to the position from that previously understood.  The Judge’s approach essentially follows that articulated by the Court of Appeal in Packham.  

As to the substantive decision in the Fighting Dirty case, the court had considerable disclosure of internal documentation and communications, within the EA, between the EA and Defra, and with Ministers.  Based on the evidence, the Judge concluded that there had been no breach of the duty to act reasonably.  He noted that there was no statutory or policy duty to set a target date, and no legitimate expectation that there would be a target date.  

Fordham J held that it was an evaluative judgement whether to include a target date, in circumstances where the EA could not commit Defra to legislative change, so the target was in any event aspirational.  He took the view that the regulatory change was not a pressing imperative, as it had already been deferred for two years and the material showed that, in 2023, the EA had considered setting a target date in 2029/2030.  This also meant that the environmental problem could not have been a serious and immediate risk.  It was also already subject to some regulation.  

The Judge concluded that the EA adopting a position in line with the Defra ‘ask’ was not unreasonable, since action was required by Defra and a working relationship had to be maintained.  It was for the EA and Defra to decide on institutional priorities and resource deployment.  The Judge also concluded that the EA was well-aware of the environmental implications of its action.  

The claim was therefore dismissed.

Richard Honey KC is a barrister practising at Francis Taylor Building in public and environmental law.  He appeared for the respondent in the Dillner case.  

In Fighting Dirty, Mark Westmoreland Smith KC appeared for the EA and Ned Westaway appeared for SSEFRA.  Neither have had any involvement in the drafting of this blog post.