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

The pesticide authorisation requirements in article 4(1) of Directive 91/414/EEC are implemented through the uniform principles in Annex VI. Compliance with those principles satisfies the Directive; article 4(1)(b)(iv) imposes no additional free-standing obligation.

Decisions involving complex scientific assessments are reviewable, but the manifest-error threshold is formidable. A court may not substitute its assessment of disputed scientific evidence for that of the competent authority.

Environmental effects may engage article 8 of the Convention despite regulatory compliance. A claimant must, however, establish a sufficiently probable, direct and serious effect. The state must provide an effective regulatory framework, not guarantee freedom from every nuisance caused by third parties.

The respondent lived beside fields sprayed with pesticides and attributed illnesses and interference with her home life to repeated exposure. She challenged the Secretary of State’s pesticide authorisation regime, alleging non-compliance with Directive 91/414/EEC and article 8 of the Convention.

Collins J granted a declaration of non-compliance and ordered reconsideration of the policy: [2008] EWHC 2666 (Admin). The Secretary of State appealed. The principal issues were whether article 4(1)(b)(iv) imposed requirements beyond the uniform principles in Annex VI; whether the exposure model and consideration of health evidence disclosed manifest error; and whether the regulatory regime violated article 8.

1. Appeal allowed. Article 4(1)(b)(iv) of Directive 91/414/EEC did not impose a free-standing requirement additional to Annex VI. The uniform principles formed a comprehensive and prescriptive code designed to secure harmonised authorisation and mutual recognition. An authorisation granted after proper application of those principles complied with article 4(1).
2. The existing bystander-exposure model satisfied paragraph 7.2.2 of Annex III. Suitability was relative to models available in the real world. A model was not unsuitable merely because an ideal replacement could produce a better estimate. The expert bodies disagreed about the model’s shortcomings but agreed that an improved model should be developed. The Secretary of State’s conclusion disclosed no manifest error.
3. In a technically complex scientific field, the competent authority enjoyed a wide discretion. Judicial review was limited to the accuracy of its factual and legal premises, manifest error, misuse of powers and whether it exceeded the bounds of its discretion. Collins J had wrongly substituted his evaluation of causation evidence for the Secretary of State’s assessment, made with specialist advice.
4. The Annex VI general principles did not impose a universal obligation to evaluate local effects on residents at the authorisation stage. They required relevant technical or scientific information about such effects to be considered when reasonably available. The evidence did not establish manifest error in the Secretary of State’s conclusions about either local or chronic effects.
5. Article 4(1)(b)(iv) required the absence of harmful effects, not merely serious harmful effects. The use of “serious” in guidance was unfortunate. Nevertheless, the evidence showed that the regime treated any effect more than transient or trifling as material, so the wrong legal test had not been applied.
6. The Secretary of State gave detailed reasons for declining recommendations concerning statutory spraying conditions, access to records and prior notification. Choosing between legislation, a statutory code and guidance was predominantly a political judgment. Disagreement with that choice did not establish Wednesbury unreasonableness.
7. Article 8 could in principle be infringed by severe environmental pollution despite compliance with other legal requirements. The respondent had not established a sufficiently probable causal link or environmental impact of the necessary severity. The state had provided an effective regulatory framework and was not required to guarantee that third-party activity would never disturb an individual’s home life.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed unanimously. The declaration and reconsideration order made below could not stand: [2009] EWCA Civ 664.
2. Administrative Court: Collins J declared that the Secretary of State was not complying with Directive 91/414/EEC in the respects identified in his judgment and ordered reconsideration and any necessary amendment of the policy: [2008] EWHC 2666 (Admin).