Environment – Pollution – Air quality – Defendant environment agency issuing permit to interested party for operation of landfill site – Claimant vulnerable child applying for judicial review alleging health adversely affected by emissions from site – Whether defendant breaching claimant’s right to life and/or right to respect for private and family life – Whether defendant under positive duty to take reasonable steps to protect claimant’s rights – Whether duty arising in respect of privately operated industrial activity – Whether defendant discharging duty – Application granted
The claimant lived close to 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 defendant environmental regulatory body.
The claimant was a vulnerable child who was badly affected by emissions from the landfill site. He brought a claim for judicial review against the defendant 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, it was said that he faced the development of chronic obstructive pulmonary disease (COPD) which would dramatically shorten his life expectancy.
He contended that the defendant, as the relevant statutory and supervisory state authority, was in breach of, inter alia, its statutory duty under section 6 of the Human Rights Act 1998 to take the measures necessary to protect his rights. The defendant resisted the claim on the basis that it had no liability in respect of dangers arising from an industrial activity conducted by a private operator in the absence of any relevant “assumption of liability” on its part; and that, in any event, it had taken the reasonable and appropriate action of monitoring emissions levels and taking advice from Public Health England, the responsible national body for public health and for protection from public health hazards, which had identified and adopted key guideline emission levels in its Fourth PHE Risk Assessment (the risk assessment) on hydrogen sulphide.
Held: The application was granted.
(1) In the context of dangerous industrial activities, the scope of the positive obligations under article 2 largely overlapped with those under article 8. The responsibility of the state authorities in environmental cases might arise from a failure to regulate private industry. Severe environmental pollution affecting an individual’s well-being and adversely affecting private and family life could trigger a positive obligation on the state authorities pursuant to article 8 to take reasonable and appropriate measures to secure rights to private and family life.
Where triggered, the article 8 positive obligation was to take reasonable and appropriate measures to secure rights to private and family life, striking a fair balance between the interests of the individual and of the community as a whole. Article 2 laid down a positive obligation on state authorities (the safeguarding obligation): to take appropriate steps to safeguard the lives of those within the state’s jurisdiction. The safeguarding obligation entailed above all a primary duty (the framework duty) to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.
(2) The safeguarding obligation applied to activities, whether public or not in which the right to life might be at stake, including industrial activities which by their very nature were dangerous and in the particular context of dangerous activities. It might entail a positive obligation to impose particular practical measures (the operational duty), in which situation: there might be a choice of means and the positive duty might be capable of fulfilment by alternative means; an impossible or disproportionate burden was not to be imposed on authorities without considering the operational choices which they had to make in terms of priorities and resources, in difficult social and technical spheres.
(3) In the present case, in light of the expert evidence of a reduced life expectancy which was both substantial and significant if the claimant were to develop COPD, the condition for the article 2 positive operational duty was satisfied and the duty was triggered. The article 8 positive operational duty had also been triggered. Based on all the evidence, there was a direct effect on the claimant’s home, family life and private life from adverse effects of severe environmental pollution which attained the relevant minimum level by reference to intensity, duration, physical and mental effects. Moreover, this was not a case concerning a detriment which was negligible in comparison to the environmental hazards inherent in life in every modern city.
(4) The application of articles 2 and/or 8 and common law standards started from the position that the defendant, as regulator, had a latitude involving the exercise of judgment and appreciation in appraising a situation, conducting a suitable enquiry and identifying appropriate steps. It was for the defendant to identify appropriate steps and choose from alternative steps and the court was not to impose an impossible or disproportionate burden. It was for the defendant to address as a matter of judgment and expertise how measures could be effectively and speedily achieved. That included issues as to whether effectiveness was secured with the landfill continuing to operate.
(5) The defendant would discharge its legal obligations if and in so far as it took the action which, in its judgment, would be effective to implement the advice set out in the risk assessment. Only recognition, acceptance and implementation of Public Health England’s advice, through the design of effective measures to achieve the outcomes in that advice, could satisfy the positive operational duty given the real, anxious and evidenced health concerns relating to the claimant, as a vulnerable child. The court was not satisfied, on the evidence, that the defendant had done what compliance with the applicable legal duties required.
There was a necessary discipline in setting a clear objective, by reference to an accurately articulated understanding of what outcome needed to be secured and by when, and then working out what steps would achieve that objective of that outcome in that timeframe. That involved someone taking responsibility for the exercise of judgment but there was no document before the court which adopted that discipline, or began to do so.
Ian Wise QC, Michael Armitage and Will Perry (instructed by Hopkin Murray Beskine Ltd) appeared for the claimant; Timothy Mould QC and Jacqueline Lean (instructed by the Environment Agency) appeared for the defendant; 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
