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

Permission for judicial review requires an arguable ground with a realistic prospect of success, subject to discretionary bars such as delay. Where positive obligations under Articles 2 and 8 ECHR are engaged, a regulator must consider reasonable and appropriate measures within the scope of its powers, while retaining an enhanced margin of appreciation in technical and predictive regulatory matters. A continuing course of conduct may postpone the limitation date until the last act, but a discrete failure to provide information is subject to the ordinary limitation period. Regulation 57 of the Environmental Permitting (England and Wales) Regulations 2016 does not displace the regulator’s Convention obligations.

The claimant, a nine-year-old child living near Walleys Quarry, sought permission to challenge alleged regulatory failures by the Environment Agency concerning hydrogen sulphide emissions from the abandoned landfill site. The claim relied on positive and procedural obligations under Articles 2 and 8 ECHR, irrationality, and the common law duty of sufficient inquiry.

The proceedings followed earlier litigation concerning the site. The Court of Appeal had allowed the Agency’s appeal against a declaration requiring specified reductions in emissions, while leaving undisturbed the findings that there was a real and immediate risk to the claimant’s life and that Articles 2 and 8 were engaged. The present issues concerned alleged continuing operational failures, failures to provide information, and the Agency’s response after the operator entered liquidation and disclaimed its permit.

1. Permission test. Applying Maharaj v Petroleum Company of Trinidad and Tobago Ltd [2019] UKPC 21 and Sharma v Brown-Antoine [2006] UKPC 57, permission requires an arguable ground with a realistic prospect of success, subject to discretionary bars including delay.
2. Operational duties. Grounds 1 and 3 were arguable. The evidence supported a full hearing on whether the Agency knew, or ought reasonably to have known, that freshly deposited high-sulphate-bearing waste caused the emissions, and whether it unreasonably continued relying on the operator despite persistent regulatory failures. The seriousness and duration of the pollution were not a standalone challenge, but could support those issues.
3. Procedural duties and delay. Both limbs of Ground 2 lacked a realistic prospect of success and were, in any event, out of time. The alleged failure concerning inaccurate monitoring data was discrete, so time ran from the claimant’s representatives’ knowledge of the problem. The alleged failure concerning the source of the emissions was not shown to be continuing, and sufficient information had been published by May 2023.
4. Post-liquidation duties. A closure notice did not transfer the operator’s responsibilities to the Agency, and it fell away when the permit was disclaimed. Regulation 57(1) of the Environmental Permitting (England and Wales) Regulations 2016 empowered the Agency to take steps to remove a risk of serious pollution, but did not exhaust its duties under Articles 2 and 8 ECHR. It was arguable that the Agency had treated regulation 57 as governing its functions without adequately considering those wider obligations.
5. Other Ground 4 issues. The challenges to the Agency’s decision not to undertake all works in the closure notice, and to the adequacy of its inquiries, lacked sufficient evidential foundation. They impermissibly invited the court to substitute its view for that of the specialist regulator.
6. Permission was granted on Grounds 1 and 3, subject to issue 3 not being a standalone challenge, and on sub-ground 1 of Ground 4. Permission was refused on Ground 2 and on sub-grounds 2 and 3 of Ground 4.

The judgment describes earlier proceedings concerning the same site. In the first judicial review, Fordham J. made a declaration requiring steps to reduce hydrogen sulphide levels. The Court of Appeal subsequently allowed the Environment Agency’s appeal, holding that the declaration was impermissible without a finding of breach and that the court should not prescribe regulatory outcomes in a difficult technical and social sphere. The Supreme Court refused permission to appeal. The present decision concerns permission in a fresh judicial review claim.