Six Pump Court companion to the case of R (Richards) v. Environment Agency & Walleys Quarry  EWHC 2501 (Fordham J.), 16 September 2021;  EWCA Civ 26 (Sir Keith Lindblom (Senior President of Tribunals), and Lewis and Elisabeth Laing LJJ), 17 January 2022.
Commentary written by Gordon Wignall and James Harrison
See blog posts here and here for summaries of the High Court and Court of Appeal judgments, respectively. A detailed factual background of the claim is set out therein.
The Walleys Quarry litigation provides insights into a variety of areas rarely considered by the Courts: the regulation of permitted sites, the potential health consequences of pollution, the scope of Article 2 and 8 of the European Convention on Human Rights (the “Convention”) in the context of environmental permitting, and the availability of declaratory relief.
In this short commentary we will say something about all these issues. Moreover, whilst the order made by Fordham J. at first instance was overturned by the Court of Appeal, certain additional comments which he made will be of interest to any practitioners concerned with challenges to decisions of the Environment Agency in the exercise of their enforcement powers. A short account of these appears at the beginning of this commentary (see “The analysis of the Environment Agency’s framework and operational duties”).
Mathew Richards, the claimant, was aged five at the time of the Court of Appeal judgment. He had lived his entire life near a landfill site, Walleys Quarry, which had an acute history of high hydrogen sulphide emissions. Given his premature birth and congenital respiratory issues, Mathew was affected acutely by the emissions and was at risk of developing chronic obstructive pulmonary disorder (“COPD”). Mathew intended by his claim to bring an end to what his consultant paediatrician described as “unbearable conditions”, relying on Articles 2 and 8 of the Convention.
The Respondent, the Environment Agency (“EA”) was (and is) the regulator of the site under the provisions of the Environmental Permitting Regulations 2016 (the “Regulations”). The EA carried out its duty in line with guidance from Public Health England (“PHE”), which had examined monitoring data from the site since 2017 and, published its latest report on 5 August 2021 (the “Report”), in which it recommended that measures be taken to reduce levels of hydrogen sulphide.
The operator of the landfill site took part in the claim as an interested party.
The judgment of Fordham J.
In his judgment, Fordham J. did not expressly state that the EA was, or had been, in breach of its obligations under either Articles 2 or 8 of the Convention. As the Court of Appeal said, he did not find that the EA had acted unlawfully. However, the declaration he made required the EA to implement the advice of PHE as set out in the Report by designing and implementing measures that would achieve certain specified outcomes in relation to emissions of hydrogen sulphide by specified dates.
The route which Fordham J. took to this outcome is described in §§47-53 of the Court of Appeal judgment. In summary, the Report demonstrated that there was “a real and immediate risk” to Mathew’s life expectancy being reduced, and that the pollution had a direct effect on his home and family life. These findings ‘triggered’ a positive operation duty of the part of the EA which made it necessary (rather than merely sufficient) on the part of the EA to implement the PHE advice. Accordingly, it was just and convenient and in the interests of justice to grant the declaration (see s.8, Human Rights Act 1998).
The analysis of the Environment Agency’s framework and operational duties
The EctHR authorities to which the judge referred, which are concerned with the responsibility of state authorities in the context of environmental pollution, describe the necessity for both ‘framework’ and ‘operational’ duties. These constitute parts of a state actor’s ‘safeguarding’ obligation to secure citizens’ rights, striking a fair balance between the interests of the individuals and of the community as a whole. There is no suggestion that the EA (the relevant state authority in this case) failed to put in place an effective legislative and administrative framework but the operational duty was subject to scrutiny.
Whilst for the reasons set out below, the Court of Appeal overturned Fordham J.’s judgment, quashing the declaration, the Court of Appeal did not comment on the judge’s description of the EA’s approach to its operational duty. Moreover, the judge’s account of the EA’s operational duty also arose in the context of an explanation by him of the duty on the part of the EA to carry out a sufficient investigation into those facts which might trigger the exercise if its enforcement powers, being a duty which arises at common law.
The duty of sufficient investigation, sometimes known as the Tameside duty, is a duty of sufficient inquiry on the part of a decision-maker at common law reasonably to determine what inquiries are necessary for the purposes of an investigation. The ambit of the duty is discussed in R (Plantagenet Alliance Ltd) v Secretary of State for Justice  3 All ER 261 and in R v. Pharmaceutical Services Negotiating Committee v. Secretary of State for Health  EWCA Civ 1925,  PTSR 885.
As Fordham J. noted, the provisions in the Regulations which permit the service of enforcement notices tend to commence with expressions such as “where the regulator considers that …”. To an aggrieved operator who has received an enforcement notice, Fordham J.’s judgment may now invite careful scrutiny of the extent to which the Tameside duty has been satisfied by the regulator.
In this context, there is a particular passage which may also strike a chord with practitioners interested in challenges to enforcement notices. The judge noted the existence of a great deal of written material from the EA, but he was not satisfied that any one individual had taken charge of working out what steps were required to satisfy the required operational duty. As he put it in §63 of his judgment: “There is a what, and a when. There is also a who. The discipline involves someone taking responsibility for the exercise of judgment”.
The Court of Appeal was only concerned with the Convention rights and the question whether the judge was right to have granted a declaration. But the comments by Fordham J. in connection with Mathew’s common law claim will be likely to give rise to detailed analysis in future claims concerned with the lawfulness of a wide range of enforcement notices.
Articles 2 and 8
For reason of the inherently dangerous nature of the industrial activities carried out at Walleys Quarry and the emissions that those processes generated, the EA accepted that it owed a positive duty under Articles 2 and 8, respectively, to regulate the site. However, the EA appealed against the declaration made Fordham J. for two reasons. First, the approach taken by the judge ran contrary to the established case law of the European Court because it was too prescriptive. Second, the judge wrongly treated this as a case where there was a breach because of a lack of information that the EA had designed or applied effective measures.
The European Court has established clear principles that delineate the remit of the Court with respect of both Articles 2 and 8. At §128 of Fadeyeva v Russia (2008) 45 EHRR 10, it was made clear that it is not the Court’s task to determine “what exactly should have been done” in a specific situation but rather it is the Court’s role to ensure that the relevant body “approached the problem with due diligence and gave consideration to all the competing interests…”. Fordham J. did “precisely what he recognised that a court should not do” by determining the acceptability of levels of emissions and fixing specific outcomes. This judgment reaffirms that a wide margin of appreciation should be given to state actors.
However, one might consider that the requirement for ‘due diligence’ has potential to overlap with the operational duties of the EA. Fadeyeva (the facts of which are set out briefly in §§71-72 of the Court of Appeal judgment) develops this position and underlines that in certain circumstances where a dearth of evidence makes it impossible for a Court to assess the efficacy of potential sanctions, the Court may be permitted to draw “an adverse inference” (§131).
The Court of Appeal underlined that the facts of the breach in Fadeyeva cannot be elevated to justify Fordham J.’s decision to make a declaration (particularly as the EA provided various documents and evidence). However, documentation and evidence are likely to be key in demonstrating that a regulator has discharged its operational duty and has met the requirement for due diligence. Failure to provide the same could stop the Court from being able to carry out its balancing exercise, which may justify a declaration that the regulator had acted improperly.
In the absence of a finding that the EA was acting in breach of its obligations under Articles 2 and 8, Fordham J. elected to grant a declaration based on his reading of PHE advice and how it ought properly to be complied with. The particular wording of that declaration is necessarily fact-specific and of little general application save to say that the Court of Appeal criticised the mandatory wording of the declaration.
The starting point is a finding by the Court that a public body is acting or is proposing to act in a manner that is unlawful due to incompatibility with a Convention right. If such a finding is made then the Court may grant a “just and appropriate” remedy, including declaratory relief, to address the unlawful act.
In the absence of an actual or proposed unlawful act, the Court cannot grant an advisory declaration unless such an order is sought and is appropriate. This issue was discussed in §69 of R (Bell and A) v The Tavistock and Portman NHS Foundation Trust ( EWCA Civ 1363): there is no precedent of a declaration being granted in judicial review proceedings in which a clear legal challenge has failed and the broad discretionary power in s 31(2) of the Senior Courts Act 1981 is considered against the lack of a claim for an advisory opinion or declaration from the court. So far as the appropriateness of an advisory declaration, the Court of Appeal considered that the need for an assessment of “what action to take, at what time, in a complex regulatory and technical sphere where data and advice was emerging over time” made it unsuitable to give an advisory declaration as to the regulation of Walleys Quarry. The mandatory wording indicated that this was more than an advisory declaration.
It is possible that the expediency of these proceedings – dealt with by way of rolled up hearing over two days because of the personal importance and keenness of the issues for Mathew and his family – contributed to the procedural issues in this case and Fordham J. exceeding the limits of his remit. However, these limits have been reinforced by the Court of Appeal, which has made clear that regulators such as the EA must continue to be afforded a wide latitude within the bounds of human rights law. Indeed, this case has not broken new ground so much as reminded us of previously established limits and, unusual for its integration of matters of environmental law and personal injury, it has shown clear overlaps between operational duties and human rights, as well as certain common law, requirements.
Mark Watson QC and Richard Banwell of Six Pump Court, appear for Walleys Quarry Limited in separate statutory nuisance proceedings. They have not taken any part in the writing of this commentary.