Environment – Pollution – Air quality – Appellant environment agency issuing permit to interested party for operation of landfill site – Respondent vulnerable child applying for judicial review alleging health adversely affected by emissions from site – High Court granting declaration as to what appellant to do to comply with legal obligations – Appellant appealing – Respondent cross-appealing – Whether judicial intervention appropriate or justified – Whether necessary or appropriate to declare appellant in breach of obligations – Appeal allowed – Cross-appeal dismissed
The respondent lived near the Staffordshire former mining village of Silverdale and the Walleys Quarry landfill site. The site was run by the private operator interested party pursuant to an environmental permit issued by the appellant environmental regulatory body.
The respondent was a vulnerable child who was badly affected by emissions from the landfill site. He claimed judicial review against the appellant, alleging that the operation of the site gave rise to a breach of his right to life under article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and/or his right to private and family life under article 8, because he suffered from respiratory problems and the levels of hydrogen sulphide emissions from the site were preventing his recovery and lung development during a crucial window of time. Consequently, he faced the development of a chronic disease which would dramatically shorten his life expectancy.
The High Court did not consider that the appellant was acting in breach of its obligations under articles 2 and 8 of the Convention as at the time of the hearing in August 2021. However, the judge granted a declaration, based on his reading of Public Health England (PHE) advice, as to what the appellant had to do in order to comply with its legal obligations: [2021] 2501 (Admin); [2021] PLSCS 164. The appellant appealed.
The respondent cross-appealed, contending that the judge had, in fact, found that the appellant was in breach of its obligations under articles 2 and 8 at the time of the hearing and should have granted a declaration to that effect. Alternatively, the judge was wrong in failing to find such a breach.
Held: The appeal was allowed. The cross-appeal was dismissed.
(1) The role of the court under the Human Rights Act 1998 was to determine whether a public authority was acting unlawfully by acting in a way which was incompatible with a person’s Convention rights: section 6 of the 1998 Act. An act included a failure to act. A person was entitled to bring proceedings before the appropriate court, here by way of judicial review, where it was claimed that a public authority had acted, or was proposing to act, in a way that was unlawful because it was incompatible with that person’s Convention rights: section 7 of the 1998 Act.
In the present case, the judge sought instead to define the legal content of the obligation owed under articles 2 and 8. In doing so, he exceeded his role under the 1998 Act by seeking to prescribe the precise outcomes that the appellant had to achieve, and the timescale within which it had to achieve those outcomes. Furthermore, he was not acting in accordance with the principles established by the European Court and went beyond the proper limits of adjudicating on the dispute between the parties.
(2) The task for the judge was to assess the material to determine whether the appellant had demonstrated that it had struck a fair balance between the legitimate interest in maintaining a landfill site and the interests of the respondent and others in the community. On a fair reading of the judgment, the judge did not find that the appellant had acted unlawfully by failing to comply with its obligations under articles 2 and 8 in the period prior to the hearing, or that it was failing to comply with those obligations at the time of the hearing. The judge, therefore, erred in granting an advisory declaration in circumstances where no finding of actual or proposed unlawfulness was made, and where such a declaration was neither sought and would not be appropriate. Such a declaration was neither justified nor required to remedy any unlawful act or failure to act.
(3) The judge was correct not to find that the appellant was in breach of its obligations under article 2 as at the date of the hearing in August 2021. There was no proper basis upon which a court could find such a breach on the evidence before the court at that date. Further, there was no proper evidential basis for concluding, at that date, that the appellant was proposing to act unlawfully in breach of its obligation under article 2. At that stage, it had accepted that there was a serious problem at the landfill site with landfill gases, had taken relevant action and required the operator to submit a revised risk assessment and landfill gas management plan. It had also sought advice from PHE, which had been provided shortly before the hearing.
Further, there was no proper basis upon which a court could find a breach of article 8. The appellant was obtaining relevant information and advice, ensuring that the operator took appropriate steps to address the problem and keeping matters under review. The appellant was seeking to address the problem and, in so doing, was striking a fair balance between competing interests and was acting with due diligence. There was no basis for inferring from the evidence available at the hearing in August 2021 that the appellant was proposing to act in breach of its obligations under article 8.
(4) Accordingly, the appeal would be allowed, the cross-appeal dismissed and the declaration set aside. The declaration, which required the appellant to achieve prescribed outcomes within a prescribed timetable, went beyond the scope of the court’s functions in dealing with a claim that the appellant was acting incompatibly with the respondent’s Convention rights. It ran counter to the principles established in the case law of the European Court governing the appropriateness of judicial intervention in the regulation of industrial activities in a difficult area of technical and social policy. The grant of the declaration was neither justified nor necessary as there was no actual or proposed unlawfulness which called for a remedy.
Timothy Mould QC and Jacqueline Lean (instructed by the Environment Agency) appeared for the appellant; Ian Wise QC, Catherine Dobson and Will Perry (instructed by Hopkin Murray Beskine Ltd) appeared for the respondent; David Hart QC and Thomas Beamont (instructed by CMS Cameron McKenna Nabarro Olswang LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Richards) v Environment Agency