High Court rejects latest judicial review challenge over Environment Agency decisions on landfill site

Mathew Richards brought the case through his mother seeking judicial review of decisions of the Environment Agency (EA) about a former landfill site, Walleys Quarry, in Silverdale, Staffordshire.

He had succeeded in his first claim for judicial review but that was overturned by the Court of Appeal.

Mrs Justice Lieven said the claimant’s lawyers now submitted that the EA was in breach of its positive operational obligations under Articles 2 and 8 of the European Convention on Human Rights (ECHR) from 2022  to November 2024 when it served a closure notice.

He sought a declaration to this effect and another that the EA should have taken reasonable steps to reduce Hydrogen Sulphide (H2S) emissions to accepted health guidance levels and must exercise its powers under Regulation 57 Environmental Protection Regulations 2016 compatibly with these obligations.

The claimant argued on his first ground that the EA's failure to reduce H2S emissions was in breach of its operational duties under Articles 2 and 8 ECHR and that it irrationally failed to review its action plan or take alternative steps.

Lieven J said: “The central issue in this case is whether the EA acted with due diligence and proportionality in exercising its regulatory functions during the relevant time period.”

She explained that from late 2020 onwards significant numbers of complaints were received about foul-smelling odours from the landfill.

Although various control and mitigation measures were in place, a particular problem arose from the deposit of gypsum and other high-sulphate-bearing waste.

The judge said that during winter of 2023-24 “the emissions recorded at the monitoring stations and the complaints both went up very significantly”.

After the November 2024 closure notice the site ceased to accept waste. Its operator entered liquidation in February 2025and the site is now abandoned.

Medical reports on the claimant concluded that H2S emissions were materially contributing to his ill health, and that continued exposure would be detrimental to his quality of life and life expectancy.

Lieven J said the test for whether the positive obligation under Article 2 was triggered was a real and immediate risk to life. Article 8 is a qualified right, where proportionality applies, whereas Article 2 is not.

She explained: “In my view the facts of the claimant's case do not cross that Article 2 threshold. The facts relating to the claimant suggest that the impacts upon him, although serious, did not, at least by the time period relevant to this claim, engage Article 2.”

Medical reports did not refer to any immediate risk to life, but rather a longer-term impact.

Lieven J went on to say there was no dispute that the EA's positive obligations under Article 8 were engaged in the site’s regulation and the number of complaints suggested Walleys Quarry was “the most problematic landfill site in England”.

She said the test under Article 8 was whether the EA acted with due diligence, and whether a fair balance was struck between the interests of the local residents, the operator, and the EA’s regulatory resources.

This depended on the evidence available to the EA at the time actions were taken, “rather than with the benefit of hindsight”.

Lieven J said: “That is, in my view, critical in this case. With the benefit of hindsight, it is apparent that the [operator] was (certainly by 2023-24) bringing large amounts of contaminated material onto the site and was, in all likelihood, deliberately avoiding regulatory control, and that this new material was a primary cause of the emissions.

“The issue for the purpose of determining whether there was a breach of Article 8 is the degree to which the EA knew or ought to have realised the relationship between the breaches of regulatory control and the cause of the emissions, and therefore whether they acted with due diligence at the relevant times.”

She said that in 2021-23 that had not been apparent from the limited sampling that was done, and the evidence pointed to the primary cause being emissions from existing waste.

Turning to the second ground, Lieven J said: “[In] the failure to ensure proper capping of the site, the EA took many regulatory steps to try to ensure that this was done. One might criticise, particularly with the benefit of hindsight, the focus of some of their efforts, but within the parameters of Article 8(2) they acted with due diligence.”

She added: “With the benefit of hindsight it is easy to see that the EA should have moved more quickly to close the site, to stop new material entering and to force the [operator] to properly cap.

“However, the duty on the EA was to act proportionately. On the evidence that they had before 2023 there was a significant risk that if they had served a closure notice, or taken other steps, to absolutely stop new material coming on site, they would not have been successful on appeal.”

Mark Smulian