Clear The Air In Havering, R (on the application of) v The London Borough of Havering

Under Part 2A of the Environmental Protection Act 1990, a local authority must assess contamination by reference to the statutory test and the Secretary of State’s guidance. An unlawful or temporary use may be relevant to “current use” where it is reasonably likely to continue, because the regime addresses actual risks to human health rather than the legality of the use.

Smoke from spontaneous fires can form part of a contaminant linkage. The material on the land may be the contaminant, combustion the pathway, and airborne particulates the means of reaching a receptor. A decision must rest on scientifically based, authoritative and sufficiently relevant evidence. Where monitoring does not cover the principal fires and appropriate locations, the decision may be premature.

The claimant, a group of local residents, sought judicial review of the London Borough of Havering’s decision not to designate land at Arnolds Field, Launders Lane, as contaminated land under Part 2A of the Environmental Protection Act 1990. The site had a history of landfill activity, unlawful tipping and recurrent fires affecting nearby residents and other premises.

The authority relied on soil investigations and air-quality monitoring. The claimant challenged the interpretation of “current use”, the treatment of smoke as a contaminant linkage, the sufficiency of the evidence, the assessment of health effects and non-human receptors, and the timing of the decision.

1. Ground One dismissed. “Current use” under paragraph 3.5 of the Statutory Guidance is concerned with the risk posed by contamination to actual and reasonably likely receptors. The legality of the use is not itself relevant. An unlawful use may therefore be considered if it is likely to continue. Gillick and R (A) concerned a different issue and did not alter that interpretation.
2. Ground Three(a) made out. Smoke from fires may fall within the statutory contaminated-land regime. The material on the Site may be the contaminant, combustion may be the pathway, and airborne particulates may reach human receptors. Neither the Act nor the Guidance excludes contamination transmitted through combustion. The non-statutory CLEA model did not change that conclusion, particularly as it did not address fire or short-term acute exposure.
3. Grounds Three(b) and Five made out. The authority lacked sufficient monitoring data to make a lawful decision. The principal fires occurred in August 2023, before monitoring at the location to which the prevailing wind carried smoke. The available data therefore did not provide a robust basis for concluding that the fires caused no material off-site impact. The requirements of paragraph 3.4 of the Guidance had not been met.
4. Ground Two dismissed. Paragraph 4.5 identifies health effects that must be treated as significant harm. Paragraph 4.6 gives the authority a discretion in relation to other effects, including respiratory effects. It did not impose an obligation to consider every possible health effect irrespective of the available material.
5. Ground Four dismissed. The evidence did not show that surrounding buildings had become incapable of use or that property had been devalued. The authority was not under a mandatory duty to pursue those matters further.
6. The court declined to apply s.31(2A) of the Senior Courts Act 1981. The legal misdirection and uncertainty about the monitoring meant that it was not highly likely that the same decision would be reached. The authority was required to reconsider the matter on the correct legal basis and with up-to-date evidence. The court did not determine whether the land was contaminated.

First-instance judicial review. Permission was granted by Mrs Justice Lang on 21 November 2024. The High Court allowed the challenge on Grounds Three and Five, rejected Grounds One, Two and Four, and required reconsideration by the local authority.