Downs v Secretary of State for Environment, Food and Rural Affairs

Directive 91/414/EEC requires pesticide authorisation systems to protect all persons exposed to pesticides, including residents and bystanders. The prohibition on harmful effects to human health is not confined to serious, chronic or lasting illness. Harm that is more than merely transient and trifling must be addressed. Risk assessment must consider realistic exposure routes, repeated exposure, residues and local effects, not merely exposure to spray drift during application. The precautionary principle applies where solid evidence reasonably raises doubts about safety. A court conducting judicial review must not substitute its own scientific view for a tenable expert assessment, but may intervene where material considerations have been ignored or the Directive has been misapplied.

The claimant, a rural resident exposed to repeated crop spraying, challenged the defendant’s refusal to introduce mandatory buffer zones and other protective measures. The claim was amended to allege non-compliance with Directive 91/414/EEC, particularly in relation to risk assessment for residents and bystanders, the meaning of harmful effects on human health, and the rejection of recommendations made by the Royal Commission on Environmental Pollution.

The central issues were whether the domestic regulatory approach adequately assessed residents’ exposure, whether the Directive permitted a threshold limited to serious harm, and whether the defendant was entitled to prefer the advice of the Advisory Committee on Pesticides over the Royal Commission’s conclusions.

1. Claim allowed in substance. The defendant’s controls on crop spraying did not comply with Directive 91/414/EEC. The defendant was required to reconsider the policy and the conditions of use, although the court would hear further submissions on the precise form of relief.
2. The Directive’s requirement that pesticides have no harmful effect on human health applies to residents and bystanders as well as operators and workers. The word harmful is unqualified. Harm need not be chronic, lasting or serious; effects exceeding the merely transient and trifling may include headache, skin irritation, eye irritation and sore throat.
3. Assessment of bystander exposure must properly address residents’ circumstances. It must consider the route, frequency, amount and duration of exposure, including spray drift, vapour, residues, dermal and oral exposure, repeated applications and cumulative exposure. Reliance solely on the AOEL was insufficient because residents could not be protected by operator warnings or protective clothing.
4. The precautionary principle applied. Solid evidence that reasonably raised doubts about the safety of pesticides required consideration of measures necessary to avoid harm, including conditions of use, notification and buffer zones. The court accepted the approach described in Sweden v The Commission, Case No. T-229/04.
5. Judicial review was at the fringe of scientific decision-making. The court could not substitute its own scientific assessment for a tenable expert opinion. However, the defendant had failed to take account of material evidence concerning local effects and long-term exposure, and had applied the Directive on the erroneous basis that local effects could be managed solely by labelling and protective equipment.
6. The defendant was entitled to choose between conflicting expert advice and was entitled to consider cost and proportionality. The rejection of the Royal Commission’s recommendations was not, standing alone, unlawful. The operative difficulty was the failure to comply with the Directive’s substantive health-protection requirements.
7. The Article 8 claim added nothing. If the Directive was complied with, any interference would not be unlawful or disproportionate on the evidence; if it was not complied with, the domestic remedy for breach of the Directive was sufficient.

Not stated in the judgment.