Harmful emissions and human rights duties

Stephen Tromans QC and Victoria Hutton consider a significant High Court ruling on the duties of the Environment Agency in relation to a landfill site.

In R(oao Richards) v Environment Agency [20201] EWHC 2501 Fordham J handed down his decision in respect of hydrogen sulphide emissions from Walleys Quarry Landfill Site. The decision has attracted great interest in both the national and specialist environmental press. The judgment relates to the Human Rights Act duties of the Environment Agency as regulator of the site and it does have something of the feel of a landmark case, successfully invoking Articles 2 and 8 of the European Convention on Human Rights.

The claim was brought by Mathew Richards, a five-year-old boy, living in Silverdale, close to the former quarry and landfill. Local residents are severely affected by odour emissions of hydrogen sulphide gas from the site. Matthew is subject to particular risk. He was born prematurely and suffers from bronchopulmonary dysplasia (BPD). The evidence from a consultant respiratory pediatrician was that continued exposure to hydrogen sulphide was likely to lead to him developing chronic obstructive pulmonary disease (COPD) which would dramatically reduce his life expectancy.

Mathew’s case was that in failing to regulate the site so as to deal with this risk effectively, the Environment Agency was in breach of its duties to him under Article 2 (right to life) and Article 8 (respect for home and family life). Before discussing aspects of the case, it is worth setting out the declaration made by the Court:

“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.”

There will no doubt be many who as potential claimants or claimant lawyers will wish to rely on the decision as a precedent in cases where they consider that the Environment Agency, local authorities or other regulators are failing to take action to bring to an end serious nuisances from odour, noise or air pollution. Cases where private nuisance claims against landfill operators or other industrial facilities in private nuisance have generally been preceded by many years of fruitless complaint to the relevant regulator. However, it is important to understand that a number of factors came together in this nuanced and carefully considered judgment to result in the successful outcome. These may not so clearly be present in other cases.

First, the starting point in HRA cases is the victim. A substantial part of the judgment is devoted to considering Mathew’s medical condition and prognosis if he continued to be exposed to hydrogen sulphide pollution. In particular he could on the evidence satisfy the test laid down in the European Court of Human Rights jurisprudence to trigger the “positive operational duty” on the Environment Agency under Article 2, the requirement being either that the victim’s condition constitutes an inevitable precursor to the diagnosis of disease, or that their current condition is of a life-threatening nature (Brincat v Malta Application No.60908/11 (24.7.14) (the Malta Drydocks case)).

Secondly, there was the approach to the evidence. The judge was faced with a clash of expert evidence as to “safe” levels of hydrogen sulphide. For the operator as interested party there was evidence from Professor Sir Colin Berry, a histopathologist and toxicologist, to the effect that he could identify a “good reliable safety level” in relation to potential adverse effects to human health. For the claimant there was evidence from Dr Ian Sinha, a consultant respiratory paediatrician, who effectively said there was no such thing as a safe level. What is particularly interesting is the way that the judge handled that evidence, by subjecting Professor Berry and Dr Sinha to “hot tubbing” to test and understand their evidence by the judge asking agreed questions. It appears that this was a helpful and – importantly – a transparent exercise. A large portion of the judgement is taken up with extremely careful consideration of the evidence. In fact the judge tested the expert evidence against reference levels derived from Environment Agency, World Health Organisation and US sources. He accepted neither expert as correct and, as will be seen from the declaration, relied in particular on the US material as providing health based guidance for long term exposure. Not every Administrative Court judge would have been willing to grapple so meticulously with the evidence.

Thirdly, and related to the second point, the Court had the benefit of a very recent report by Public Health England, the Fourth PHE Risk Assessment, which was the most recent PHE health risk assessment of air quality monitoring results in respect of Walleys Quarry. It was so central to the case that it is worth setting out in full para. 33 of the judgment:

“The Fourth PHE Risk Assessment, in my judgment, stands as a beacon in this case. It is clear and transparent. It is a coherent, reasoned analysis. It makes clear, assessed choices as to relevant “health-based guidance values”. It makes clear, assessed evaluations of 2017-2019 emissions and 2021 emissions. It addresses acceptability and unacceptability. In particular, it identifies two things that really matter in addressing the unacceptable 2021 emissions. First, ongoing exceedances of the WHO half-hour Guideline (5PPB) are not acceptable. Secondly, exceedances after 2021 (beyond day 365) whose daily average is above the US EPA Reference Concentration (1PPB) are not acceptable. The advice, found in the strong recommendation, is therefore twofold. First, that all measures be taken to reduce off-site odours as early as possible so that the WHO half hour guideline (5PPB) currently exceeded for “a considerable percentage of the time” (9%, 12%, 6% and 31%) is met, addressing the undesirable current effects on people’s well-being and the symptoms they are experiencing. Secondly, that all measures be taken to reduce concentrations in the local area for 2022 (day 365 and beyond) below the US EPA reference concentration (1PPB), being the acceptable level and health-based guidance value used to assess long-term exposure, returning to the compliance with this level observed for 2017- 2019, but having applied the more generous US ATSDR Intermediate Value (20PPB) to emissions during 2021 (up to day 364). These are real and significant changes. It is worth remembering that the odour threshold for hydrogen sulphide is 8PPB. Given the particular significance which chronic long-term exposure has in the present case, it is important to recognise that this is what the daily average of 1PPB addresses. In very simple terms, it means that for every time that emissions are at, say, 1.5PPB there would need to be, say, an equivalent time when they are below 0.5PPB. Or for every time they are at, say, 2PPB there would need to be, say, twice as long when they are below 0.5PPB. Otherwise, the average of 1PPB will not be met, as it must be. It matters, if public health is going to be protected. Especially for Mathew.”

It is undoubtedly this report which underpinned the decision and the declaration made. The Agency had done the right things in monitoring and in seeking PHE’s advice. However that in itself was not enough. As the judge stated at para. 60:

“… to fail to adopt the clear advice and recommendations of PHE, referable to protective and precautionary health-based standards identified as appropriate by PHE, would be to fail to comply with the positive operational duty. Only recognition, acceptance and implementation of PHE’s advice – through the design of effective measures to achieve the outcomes in PHE’s advice – could satisfy the positive operational duty given the real, anxious and evidenced health concerns relating to Mathew, a vulnerable child.”

The Agency had on its evidence formulated an action plan which identified 18 actions at the site, with planned completion dates the latest of which is 24 December 2021. However, this did not satisfy the judge that the Agency had complied with its operational duty. The reasons were set out as follows (para. 63:

“(1) There is a necessary discipline in setting a clear objective, by reference to an accurately articulated understanding of what outcome needs to be secured and by when, and then working out what steps will achieve that objective of that outcome in that timeframe. There is a what, and a when. There is also a who. The discipline involves someone taking responsibility for the exercise of judgment. Someone needs to say: ‘I have assessed that these measures will achieve below-1PPB average hydrogen sulphide emissions from January 2022’… (2) The Court has thousands of pages of materials and yet there is no document before the Court which adopts that discipline, or begins to do so. I find it impossible to imagine that the discipline could be performed without some document somewhere reflecting that this was what was being done … if there is a plan, it would have been set out somewhere. (3) There is no reference, anywhere, to the long-term US EPA Reference Concentration (1PPB) average being achieved from January 2022. Yet … that is the clear logic of the Fourth PHE Risk Assessment and the second recommendation, PHE having applied the US ATSDR Intermediate Value (20PPB) for 2021 … That is an important, and a straightforward point. (4) None of the witness statements from the EA tell me that this is what has happened, and it would be easy to say if this were the position.”

The Environment Agency sought permission to appeal against para. 63 and the declaration – this was refused, but may be pursued before the Court of Appeal. Whether or not it is, the decision constitutes a remarkably valuable analysis of the case law, a possibly ground breaking approach to the assessment of technical evidence in judicial review cases, and a refreshingly modern approach to scrutiny of regulatory functions. This brings us to the last point where the stars aligned for Mathew and his parents: the luck of the draw as to which judge they got. It has to be said that some judges in the Administrative who might have heard this case would not have been willing to approach it in the way which Fordham J did. It would have been very easy to simply say that unless it misdirected itself in law, the Agency had a wide discretion as to how it dealt with the issue of reducing emissions. As Fordham J acknowledged at para 51 of the judgment:

“The latitude for judgment and appreciation, on the part of the public authorities charged with licensing and supervisory functions in relation to dangerous industrial activity, is extremely important and the Court must never lose sight of it. That latitude is well understood by the judicial review courts. It is clearly recognised in the context of the EA as a specialist regulator: see R (BACI Bedfordshire) v Environment Agency [2019] EWCA Civ 1962 [2020] Env LR 16 at §§87-88.“

However, Fordham J was able to bring together that latitude with the need for urgent action to safeguard Mathew’s life and health. The words of the declaration resolve that tension effectively: “… 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 …” There is therefore an obligation of result but an exercise of judgment as to how to achieve it. It is to be hoped that the Agency will now achieve what Fordham J referred to as the “flightpath” to effective reductions. What seems clear is that without this judgment there would have been a risk of matters dragging on for a long time in dispute between the Agency and the operator, leaving Mathew exposed to ongoing harm.

Stephen Tromans QC is a barrister at 39 Essex Chambers. He specialises in environment and energy law and has been involved in many of the leading cases on odour nuisances from landfills, sewage works and industrial sites.

Victoria Hutton, also of 39 Essex Chambers, specialises in planning, environment and energy law. She has acted in numerous cases involving the environmental permitting regime.

Stephen and Victoria acted for the Secretary of State for the Environment, Food and Rural Affairs in 2020 in successfully defending a claim by Mums For Lungs in respect of urban air pollution and its relationship with the COVID pandemic.