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

Positive obligations under Articles 2 and 8 ECHR must be assessed by reference to the particular facts and the information reasonably available to the public authority at the time. Article 2 requires a real and immediate risk to life. A serious long-term effect on health or life expectancy engages Article 2 only in the most serious cases. Article 8 applies where pollution directly affects private or family life and reaches the required severity. The regulator’s diligence includes the effectiveness of its measures, but ineffective action does not automatically establish a breach. The court must respect the regulator’s margin of appreciation in a technical and socially complex field, while assessing timeliness, proportionality, available alternatives and fair balance. Neither Article 2 nor Article 8 was breached.

The claimant, a child with significant pre-existing respiratory and neurological conditions, sought judicial review of the Environment Agency’s regulation of hydrogen sulphide emissions from Walleys Quarry. He alleged breaches of the Agency’s positive operational obligations under Articles 2 and 8 ECHR between January 2022 and the service of a Closure Notice in November 2024. He also sought declarations concerning the Agency’s continuing obligations.

The court considered the Agency’s monitoring, enforcement notices, audits, capping and gas-management measures, the available health evidence, and the Agency’s eventual closure action. The central questions were whether Article 2 was engaged by the alleged effect on the claimant’s life expectancy and whether the Agency had acted with due diligence and proportionality under Article 8.

1. Article 2. The positive obligation arises where the authority knows of a real and immediate risk to life. A diminution of life expectancy may engage Article 2 in an extreme case, but the impact must be at the most serious end of the spectrum. The claimant’s evidence established serious effects on health and a probable longer-term effect on life expectancy, but not an immediate risk to life. Article 2 was therefore not triggered during the relevant period (paras [129]-[135]).
2. Article 8. The Agency’s positive obligations were engaged because the emissions materially affected the claimant’s private life. The applicable question was whether it acted with due diligence, while retaining a margin of appreciation as to the means of regulation and avoiding a disproportionate burden (paras [136]-[140]).
3. Effectiveness was relevant to due diligence. The court applied the proportionality questions identified in Bank Mellat v HM Treasury (No 2): sufficiently important objective, rational connection, less intrusive means, and fair balance. The assessment had to be made against the evidence available when decisions were taken, not with hindsight (paras [137]-[140]).
4. The Agency knew or ought to have known that gypsum-contaminated waste was likely entering the Site and had devoted substantial resources to regulation. Its focus on capping, gas capture and management was too narrow in some respects, but was reasonable in light of the monitoring, heat maps and apparent improvements before the winter of 2023/24. The later ineffectiveness of the measures did not itself establish a breach (paras [141]-[153]).
5. The Article 8 challenge and the request for a declaration of continuing Article 2 duties were dismissed. No declaration was granted (paras [154]-[155]).

This was a first-instance judicial review. The judgment records that an earlier claim succeeded in part before Fordham J, but that decision was overturned on appeal in R (Richards) v Environment Agency [2022] EWCA Civ 26. That earlier litigation concerned the same dispute.