Walley’s Quarry: The High Court rules that the EA must ‘step up’ and take action

The claimant argued that EA’s failure to control hydrogen sulphide emissions at Walley’s Quarry Landfill Site (WQLS) is having a significant impact on his health and wellbeing and that he is at risk of developing COPD, which would result in a substantial and significant reduction in his life expectancy. The High Court agreed that ‘the current levels of hydrogen sulphide from WQLS constitute a breach by the EA of its positive operational duty under Article 2’ and that in the circumstances, there is a ‘positive obligation on the EA’ under Article 8 to ‘take reasonable and appropriate measures to secure rights to private and family life, striking a fair balance between interests of the individual and of the community as a whole.’ The EA had breached that obligation. In his judgment, Mr Justice Fordham made a declaration that in order to comply with its legal obligations, the EA:

‘must implement the advice of Public Health England…by designing and applying and continuing to design and apply such measures as, in the Agency’s regulatory judgment, will and do effectively achieve the following outcomes in relation to emissions of hydrogen sulphide from Walley’s Quarry Landfill Site (1) the reduction of off-site odours so as to meet, as early as possible and thereafter, the World Health Organisation half-hour average (5PPB); and (2) the reduction of daily concentrations in the local area to a level, from January 2022 and thereafter, below the US EPA Reference Value (1PPB) as the acceptable health-based guidance value for long-term exposure.’

The declaration, Fordham J. stated, is ‘just and convenient and is in the interests of justice’ and will ‘provide the clarity, and the reassurance, which this case needs.’ Although the Court was prepared to state that the EA must reduce emissions, it determined that it would be inappropriate for it to specify how the objective should be achieved. It was for the EA to use its expertise to determine the ‘how’.

Positive obligations

Mr Justice Fordham’s judgment is significant because it indicates that the scope of the EA’s responsibilities may include an obligation to act where a business it regulates is operating in a way which is having a significant impact on an individual’s wellbeing and right to a private and family life. Fordham J considered a range of environmental cases decided by the European Court of Human Rights in order to aid his interpretation of the extent of the EA’s obligations. Having done so, he determined that a number of key principles could be derived from them. Perhaps the most significant of these is the suggestion that ‘severe environmental pollution affecting an individual’s well-being and adversely affecting private and family life can trigger a positive obligation in the state authorities pursuant to Article 8 to take appropriate measures to secure rights to private and family life.’ The judgment goes on to clarify the circumstances in which this duty will be triggered. In relation to Article 2 (right to life), Fordham J. stated that two conditions must be satisfied in order for ‘the positive obligation to take operational steps to protect life’ to apply. Firstly, there must be ‘a real and immediate risk to the right to life which is significant and substantial, present and continuing.’ In Mathew’s case, the judge ruled that this was satisfied by medical evidence which asserted that hydrogen sulphide emissions placed Mathew at risk of developing COPD, a disease which would mean ‘a substantial and significant reduced life expectancy.’ The second condition which must be satisfied, is that ‘the state authority knows or ought to know of that risk.’

The judge asserted that this condition was met ‘at least by 5th July 2021 when Dr Sinha’s first report was sent to the EA.’ The two conditions being satisfied, the EA had ‘a positive obligation under Article 2’ to do ‘everything within their powers’ to safeguard life. This duty was being breached, Fordham J. stated, for three key reasons. Firstly, the EA can do ‘much, much more’ than is being done. Secondly, the EA has never addressed ‘the position of children and Mathew in particular’, and thirdly, ‘the application of the WHO guideline levels by the EA is inappropriate where the problem is one of chronic exposure and respiratory difficulties particularly in children and particularly for Mathew.’

In relation to Article 8 (right to respect for private and family life) Fordham J. stated that the ‘positive obligation’ was triggered by the ‘severe environmental pollution affecting Mathew’s private and family life, with a direct effect on Mathew’s home, family or private life, where the effects of the environmental pollution attain the minimum level, by reference to the circumstances such as intensity, duration, physical and mental effects.’ Again, the judge held that the medical evidence presented by Dr Sinha was instrumental to demonstrating that this threshold had been met. Once Article 8 is triggered, there is a ‘positive obligation’ on the EA to ‘take reasonable and appropriate measures to secure the rights to private life and family’ and strike ‘a fair balance between the interests of the individual and of the community as a whole.’

Making a powerful point, Fordham J. observed that the situation at Walley’s Quarry is not a ‘looking back’ case, but an ‘in the moment’ case. The cases decided in the Strasbourg Court, he stated, were ‘looking back’ cases and the ‘inexorable logic of these human rights cases is that public authorities- and courts- must ‘step up’ at the time.’ The High Court’s message was that public authorities, such as the EA, should not wait for disaster to strike before acting, but should be proactive in preventing those serious incidents from occurring at the outset.

Implementation of advice and the importance of good records

The EA argued that it had discharged its duty to take reasonable steps as required under Articles 2 and 8 by working closely with, and taking advice from, Public Health England (PHE). Fordham J. did not accept this argument. One of the key problems identified by the judge was a lack of evidence showing that the EA had implemented PHE’s advice. As he put it, ‘what is needed is the design and application of measures which are effective to reduce the emissions to those acceptable levels.’ Only this level of detail, he suggested, was sufficient to satisfy the ‘positive operational duty.’ It was noted that the EA had presented no evidence which demonstrated a clear objective with regards to the emissions, the outcome to be achieved, the steps to be taken to achieve that outcome and the timeframe within which it was to be achieved.

Fordham J. stated, ‘there needs to be a what and a when, there is also a who. The Court has thousands of pages of materials and yet there is no document before the Court which adopts that discipline, or begins to do so.’ Again, this indicates that the EA must take a proactive approach. Taking advice from the relevant bodies is insufficient if it is unable to clearly demonstrate how that advice has been implemented. In order to achieve this, the EA must detail its processes. It must, as Fordham J. suggested, show the ‘what’ the ‘when’ and the ‘who’. Without this, it cannot prove that it has discharged its duty and compliance will not be taken on faith.

Appeal

The EA requested permission from the Court to appeal the decision on two main grounds. The first was that the judge had erred in refusing to accept the EA’s argument that it was taking steps to ensure hydrogen sulphide emissions at the site were controlled and managed in accordance with guidance and advice of PHE. The second ground was that the judge had erred in making the declaration. The EA further argued that Fordham J’s findings with regards to the first ground ‘prioritises form over substance’ and/or means that the Court has ‘substituted its own view’. The grounds advanced by the EA suggests that its main contention is that it considers the Court to have overreached its scope. Fordham J’s insistence that the EA must be able to demonstrate the ‘what’, ‘when’ and ‘who’ is too prescriptive, the Court’s decision to make a declaration instead of limiting ‘itself to stating its conclusions’, a step too far. Mr Fordham J. rejected these arguments, stating that he could ‘see…no realistic prospect’ of overturning the decision. He remained firm in his assertion that submissions by the EA ‘did not and do not show that anyone had taken or was (or now is) taking PHE’s recommendations and designing steps’ to achieve the desired outcomes. It remains to be seen whether the EA will apply to the Court of Appeal for permission to appeal the decision. It seems likely, however, that it will.

Implications of the judgment

On the surface, the judgment potentially has far-reaching consequences. There are several communities across the country who are dissatisfied with the EA’s regulation of landfill sites in their areas. That a High Court has assessed the EA’s approach to Walley’s Quarry to be inadequate is significant and may open the floodgates for other individuals to bring similar actions against the EA. However, upon analysis of the judgment, it is evident that the threshold for meeting the triggering conditions under Articles 2 and 8, is relatively high. Mathew’s situation is arguably unusual; it was the strength of the medical evidence which was the determining factor. That evidence was able to provide a causal link between consistently high hydrogen sulphide emissions and Mathew’s inability to recover and demonstrate the pathway between this failure to recover and Mathew developing COPD, a disease which would significantly reduce his life expectancy. This is a very specific set of circumstances. It would potentially be very difficult to argue that the positive obligation for the EA to act is triggered in anything less than in very severe cases of pollution where individuals are suffering from serious or life limiting illnesses as a direct result of that pollution. The only way this will be clarified is through the application of this case to others, but this will be dependent on the outcome of any appeal.

It comes as no surprise that the EA sought to appeal the decision, particularly in relation to its duty to keep clear and documented evidence of how it is implementing the advice it has received from relevant bodies, such as PHE, in relation to problematic sites. It is this part of the judgment that is potentially most damaging to the EA and most helpful to those seeking to challenge its perceived lack of action in relation to its regulation of landfill sites whose operations are negatively impacting the community. Should it stand, the judgment would require the EA to be able to thoroughly demonstrate that it has not only taken advice, but has designed a detailed plan around that advice and put it into action. The EA may argue that the focus is in the wrong place - that it is the outcome - which is important, or ‘substance’ over ‘form’, as it puts it. However, this misses the point. Residents who are experiencing issues as a result of a site’s operations need reassurance that the EA is doing everything in its power to ensure that these activities are safe. It is not onerous to expect the EA to keep a record of expert advice it has received and how that advice has informed its regulatory response. More importantly, it means that when things go wrong, as in the case of Walley’s Quarry, there is some accountability. The problem can be quickly identified and rectified leading to less of those ‘looking back’ cases that Fordham J. referred to.

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