Mathew Richards, R (on the application of) v The Environment Agency

Positive operational duties under Articles 2 and 8 may arise where regulated industrial activity creates a real and immediate risk to life, including a risk of materially reduced life expectancy, or severe environmental pollution directly affecting private and family life. State licensing and supervisory powers are sufficient; an assumption of responsibility beyond regulation is unnecessary.

The court must respect the regulator’s latitude in choosing effective measures. It must not substitute its own technical policy or impose an impossible or disproportionate burden. However, once a competent public health agency has identified clear health-based outcomes, the regulator must design, apply and continue measures which its regulatory judgment shows will achieve them. A declaration may specify those outcomes without dictating the precise operational means.

The claimant, a vulnerable child living near Walleys Quarry Landfill Site, sought judicial review of the Environment Agency’s response to hydrogen sulphide emissions from the site. He alleged breaches of the Agency’s positive obligations under Articles 2 and 8 of the Convention, incorporated through section 6 of the Human Rights Act 1998, and corresponding common law duties of reasonableness and sufficient inquiry.

The Agency regulated the privately operated landfill under an environmental permit and had monitored emissions with advice from Public Health England. The central issues were whether the positive operational duties were triggered and, if so, what the Agency had to do to comply with them.

1. Article 2 trigger. The positive operational duty under Article 2 was triggered. The conditions described in Brincat v Malta were alternatives, not cumulative requirements. A real and immediate risk to life can in principle include a risk of materially reduced life expectancy. On the evidence, the claimant’s bronchopulmonary dysplasia placed him on an inexorable pathway to chronic obstructive pulmonary disease unless he recovered; his non-recovery was attributable to current hydrogen sulphide exposure. That constituted an inevitable precursor to a serious illness reducing life expectancy.
2. Article 8 trigger. The positive operational duty under Article 8 was also triggered. The emissions had a direct effect on the claimant’s home, family life and private life, and their intensity, duration and physical and mental effects exceeded the minimum level required by Fadeyeva v Russia. The lived experience of the local community was relevant both to that threshold and to the assessment of reasonable steps and fair balance.
3. Content of the duties. The duties required reasonable and appropriate measures, judged in context. The Agency retained substantial latitude as a specialist regulator to assess the situation, conduct inquiries and choose among effective means. The court was not entitled to dictate precise technical measures or substitute its own policy judgment. The status of the operator as private did not prevent the duties arising where the Agency possessed licensing and supervisory powers.
4. Public Health England’s advice. The Fourth PHE Risk Assessment supplied clear, reasoned and precautionary health-based outcomes. Compliance required the Agency to design and apply measures which, in its regulatory judgment, would reduce off-site odours to meet the WHO half-hour average of 5PPB as early as possible and thereafter, and reduce daily local concentrations below the US EPA Reference Concentration of 1PPB from January 2022 and thereafter. Implementing those outcomes was both sufficient and necessary in the circumstances.
5. Declaration and orders. The evidence did not establish that the Agency had yet undertaken the disciplined exercise of identifying who had assessed that its measures would achieve those outcomes and by when. A declaration was therefore granted stating the Agency’s legal obligations. The court declined to declare a current breach, declined liberty to apply, refused permission to appeal, and ordered the Agency to pay one-third of the claimant’s costs, with £85,000 payable on account.

First-instance judicial review proceedings in the Administrative Court. The judgment records an expedited rolled-up hearing and refers to an earlier procedural decision, [2021] EWHC 2090 (Admin). Permission to appeal was refused.