R (Matthew Richards) v Environment Agency [2021] EWHC 2501

Just weeks ahead of COP26, the High Court has decided on a landmark case, clarifying important principles of law applicable in environmental/industrial pollution cases involving both Article 2 and Article 8 rights, including that a reduction in life expectancy qualifies as a “real and immediate risk to life” for the purposes of the Article 2 operational duty. However, although The Hon. Mr Justice Fordham found that the Environment Agency had not complied with the operational duties it owed to the Claimant under section 6 of the Human Rights Act 1998 in respect of Articles 2 and 8, he declined to declare a breach. Instead, he made the following declaration:

“In order for the Environment Agency to comply with its legal obligations, the Agency must implement the advice of Public Health England as expressed in the Fourth PHE Risk Assessment (published 5 August 2021), by designing and applying and continuing to design and apply such measures as, in the Agency’s regulatory judgment, will and do 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, as early as possible and thereafter, the World Health Organisation half-hour average (5PPB); and (2) the reduction of daily concentrations in the local area to a level, from January 2022 and thereafter, below the US EPA Reference Value (1PPB) as the acceptable health-based guidance value for long-term exposure.”

 

What was the background to the decision in R (Matthew Richards) v Environment Agency?

The Claimant, M, was a five-year-old boy who lived close to a landfill site that emitted hydrogen sulphide. M had been born prematurely and suffered from bronchopulmonary dysplasia (BPD). His respiratory health was extremely poor. A consultant respiratory paediatrician instructed by Mas an expert witness concluded that his premature birth and BPD did not explain the severity of his current health condition. The consultant’s opinion was that environmental exposure to hydrogen sulphide from the site was significantly impairing M’s health and quality of life, and that continued exposure was likely to lead to him developing chronic obstructive pulmonary disease (COPD) which would shorten his life.

On 5 August 2021, Public Health England (PHE) had published a Health Risk Assessment of Air Quality Monitoring results from March to June 2021 in respect of the landfill site. The report showed that the 2021 emissions were above the World Health Organisation’s half-hour average guideline level of 5 parts per billion (5PPB) and above the US Environmental Protection Agency (EPA) Reference Value of 1 part per billion (1PPB). PHE recommended that every measure should be taken to reduce the off-site odours from the site as soon as possible so that the WHO half-hour guideline was met. Furthermore, the hydrogen sulphide concentrations in the local area should be cut for 2022 so they sat below the US EPA Reference Value (1PPB).

M stated the Environment Agency had failed to discharge its duty under the Human Rights Act 1998 section 6 to protect his right to life under the European Convention on Human Rights (ECHR) art.2 and right to respect for private and family life under art.8. He also submitted that the Agency had breached its public law duties at common law to act reasonably and take reasonable steps to acquire all relevant information.

 

What was the decision?

Much of the first part of the judgment concerns M’s medical conditions and his prognosis should he continue to be exposed to landfill pollution. Evidence presented and an analysis of European Court of Human Rights jurisprudence, including Brincat v Malta (No.60908/11) (unreported) satisfied the Court that the “positive operational duty” the Environment Agency had under art.2 had been triggered. The test laid down in Brincat was that the Claimant must establish either:

  1. Their condition constitutes an inevitable precursor to the diagnosis of a relevant disease, or
  2. Their current condition is life-threatening.

M satisfied the first condition. BPD was an inescapable forerunner to a disease that would reduce life expectancy, and the inescapability factor was attributable to the continuous exposure to hydrogen sulphide emissions at current levels.

The adverse effects of the pollution were also proven concerning M’s art.8 rights. The Hon. Mr Justice Fordham stated:

“Based on all the evidence, about Mathew, and about the emissions, and about the implications of the emissions for Mathew, I am satisfied that there is a direct effect on Mathew’s home, family life and private life from adverse effects of severe environmental pollution.

‘It will require pressing and ongoing action which will, in my judgment, make a very real difference so far as the air which Mathew, and his community, breathes is concerned.”

Comment

The Hon. Mr Justice Fordham’s decision will now undoubtedly be relied on by potential Claimants looking to bring the Environment Agency, local authorities, and other regulators to account regarding the effect of pollution on their human rights. In most cases of this type, years of fruitless complaints by the Complainant to the relevant authority will have preceded litigation. This case puts such authorities on notice that positive action must be taken earlier to avoid expensive Court action and associated reputational damage.

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