On 16 September 2021, the High Court in England gave judgment in R (Richards) v Environment Agency [2021] EWHC 2501 (Admin).The claimant, Mathew Richards, was a five-year-old boy with serious respiratory issues. A judicial review was successfully brought on the claimant's behalf, compelling the Environmental Agency ("EA") to secure the reduction of hydrogen emissions from a nearby landfill site to levels recommended by Public Health England.

The facts

The claimant was born prematurely and in his early years developed lifelong respiratory issues. He lived near the Walleys Quarry landfill site (the "Quarry") which produced hydrogen sulphide emissions. Following a risk assessment carried out by Public Health England, it was found that the levels of hydrogen sulphide in the air surpassed those set out in the guidelines. These emission levels prevented his recovery from his health challenges. As a result, the claimant would suffer from chronic obstructive pulmonary disease significantly reducing his life expectancy. Beyond the claimant's individual experience, the local community also expressed concerns about the emissions from the Quarry.

Grounds of challenge

The claimant alleged the EA had breached his human rights. Of particular concern were Article 2 (the claimant's right to life) of the European Convention on Human Rights (the "ECHR"), and Article 8, his right to respect for privacy and family life.

Article 2 and Article 8 of the ECHR have positive operational duties attached. Such duties require a state to take reasonable and appropriate measures to ensure a claimant's rights under these articles of the ECHR are met. The existence of these duties and a failure to discharge them would give rise to a breach of the claimant's ECHR rights.

Two key questions therefore came before the court:

  • whether positive operational duties were triggered under Article 2 and 8.
  • what those positive obligations would mean in practice.

In reaching its conclusions the court considered criteria necessary to meet the test of the existence and breach of a positive operational duty arising under Article 2 as follows:

  • the duty must be triggered as a result of the EA knowing or that it ought to have known at the time, of a real and imminent risk to the life of an identified individual;
  • the real and imminent risk to life must be present, continuing, significant and substantial;
  • once triggered, the authority must have "failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk".

The court held that each of these criteria were satisfied in the claimant's circumstances. It was found that the current levels of hydrogen sulphide from the Quarry were not in compliance with the claimant's Article 2 right to life. The court deliberately, however, did not declare a breach.

The court found that severe environmental pollution affecting an individual's well-being and adversely affecting private and family life can also trigger a positive obligation on state authorities under Article 8. This meant the EA should have taken all reasonable and appropriate measures (by reducing the levels of the hydrogen sulphide emissions) such that the claimant's rights to private and family life would be secured.

The remedy

Mr Justice Fordham was not content that the EA was complying with its legal duty to protect the claimant's life. The court granted a declaration requiring the EA to take action to reduce hydrogen sulphide emissions from the Quarry to levels set out by Public Health England. In accordance with the order, the EA must do so by January 2022.

Implications of the decision

An unusual aspect of this case is that it is the first concerning Article 2 and Article 8 rights and positive operational duties which considers "in the moment" harm as opposed to harm already suffered by the victim. The Court only identified one other case (Fadeyeva v Russia (2007) EHRR 10) where a present and ongoing breach in this context was considered.

There are three additional legal implications of this important judgment:

  • It is the first UK judgment to shed light on important principles of law applicable in environmental/industrial pollution cases where both Article 2 and Article 8 are engaged.
  • It shows the courts willingness to hold public authorities to account for their actions and/or omissions in respect of environmental claims and the impact on an individual's human rights;
  • Finally, it goes further to acknowledge the "lived experience" of those who are not specifically party to the proceedings but may well have suffered the impact of such a breach in cases concerning pollution, such as the local community.

If you have any questions in relation to emissions standards or climate change obligations more generally, please get in touch with Niall McLean.

Contributors

Niall McLean

Partner & Solicitor Advocate

Martha Speed

Trainee solicitor