Human rights, regulators and the role of the courts

In R (Richards) v Environment Agency [2022] EWCA Civ 26 the Court of Appeal considered the application of Articles 2 and 8 of the European Convention on Human Rights to environmental regulation in the context of action to address risks to health from contaminated land.

The case concerned hydrogen sulphide emissions from a landfill site in Staffordshire. These were of particular concern to the family of Mathew Richardson, a five-year-old boy with very poor respiratory health, on whose behalf the claim was brought. There was evidence that, unless reduced, the emissions would reduce Mathew's life expectancy. Odours from the site were also said to make life in the local community unbearable.

In response to increasing complaints between late 2020 and the High Court hearing of the claim in August 2021, the Environment Agency had taken various steps. These included arranging for the operator of the site to cap particular areas and improve infrastructure for the extraction and destruction of emissions; requiring the operator to submit a revised risk assessment and landfill management plan; establishing monitoring stations to collect data about the emissions; and seeking advice from Public Health England.

The claim alleged that the Agency, as the body with statutory responsibility for the regulation of landfill sites, had failed to take all reasonable steps to address the level of emissions. This was said to breach the Article 2 obligation to protect the right to life, and the Article 8 obligation to respect private and family life and the home.

Much of the appeal concerned the approach taken by Fordham J, in the High Court, to the appropriate remedy in the case. The judge had not granted a remedy in relation to the claim that the Agency was acting in breach of its Article 2 and 8 obligations. Instead, he had granted a declaration as to what the Agency had to do to comply with its legal obligations. This stated that the Agency had to implement advice given by PHE, as well as specifying the steps it needed to take and the timescale in which to take them.

The Court of Appeal concluded that this was an error. The judge had sought to define the content of the Agency's obligations under Articles 2 and 8, as well as prescribe precise outcomes and timescales. In doing so, he had exceeded his role under the Human Rights Act 1998. He had also acted contrary to principles developed by the European Court of Human Rights on the respective roles of courts and public authorities (such as regulators).

A second ground of appeal involved a dispute about the findings the judge had actually made. Had he found that the Agency had acted unlawfully by failing to comply with its obligations under Articles 2 and 8 in the period prior to, or at the time of, the August 2021 hearing? The Court of Appeal concluded that he had not, and he had therefore been wrong to grant the declaration in the terms in which he did.

The Court considered that the judge had been correct not to find that the Agency was in breach of its Article 2 obligations. Moreover, there was no proper basis upon which a court could conclude that it was proposing to breach them.  As for Article 8, the emissions were capable of having a direct and sufficiently severe impact on Mathew's home and private and family life. However, the Agency had been seeking to address the problem. In doing so, it was striking a fair balance between competing interests and acting with due diligence.

Text references 3-80, 8-08