Boy’s judicial review against Environment Agency granted

26th November 2021

In R. (on the application of Richards) v Environment Agency, the claimant applied for judicial review of the Agency’s approach to regulating hydrogen sulphide (H2S) emissions from a landfill site operated by the interested party, pursuant to an environmental permit issued by the Agency.

The claimant, a five-year-old boy, lived near the site. Born prematurely, he suffered from broncho-pulmonary dysplasia (BPD). His respiratory health was poor, and a consultant respiratory paediatrician instructed by the claimant concluded that his BPD and premature birth did not explain the severity of this condition. The consultant’s opinion was that exposure to H2S from the site was impairing the boy’s health and quality of life, and that continued exposure was likely to lead to chronic obstructive pulmonary disease (COPD), reducing his life expectancy.

A toxicologist and pathologist instructed by the interested party stated that any development of COPD would be the result of the claimant’s premature birth. Nevertheless, there were concerns in the local community about the smell from the site and the possibility it might impact local air quality and residents’ health.

On 5 August 2021, Public Health England (PHE) published a ‘Health Risk Assessment of Air Quality Monitoring results from March to June 2021’ regarding the site. This made clear that the 2021 emissions were above the WHO’s half-hour average guideline level of five parts per billion, and above the US Environmental Protection Agency (EPA) reference value of one part per billion. PHE recommended that all measures be taken to reduce off-site odours from the site as early as possible to meet the WHO guideline, and that all measures be taken to reduce H2S concentrations in the local area for 2022 below the EPA value.

The claimant submitted that the Agency had failed to discharge its duty under the Human Rights Act 1998 – specifically its duties under the European Convention of Human Rights article 2, to protect his right to life, and article 8, the right to respect for private and family life. He also argued that the Agency failed to discharge its public law duties at common law to act reasonably and take reasonable steps to acquaint itself with relevant information.

The judge concluded that the operational duties of the Agency were triggered. For article 2 it was necessary to establish either that the claimant’s condition constituted an inevitable precursor to the diagnosis of a relevant disease, or that his current condition was life-threatening. His BPD was an inevitable precursor to a serious life expectancy-reducing illness, attributable to ongoing exposure. For article 8, there was a direct effect on the claimant’s home, family life and private life from adverse effects of severe environmental pollution.

The Agency had taken reasonable and appropriate action of monitoring emissions levels and advice from PHE. However, there was no document before the court indicating how PHE’s risk assessment recommendation had been addressed, and the Agency had not adopted the discipline. Agency officials had not done what was required to comply with the applicable legal duties.

The judge stated: “I have made clear that I am not satisfied, on the evidence, that the Agency has yet addressed its legal duties in the way that it must. But there is an obvious and pressing public interest imperative that it must do so, as a matter of urgency. It is well able to do so”.

The application for judicial review was granted.

Image credit | Alamy


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