Downs v Secretary of State for the Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 14 November 2008 |
| Neutral Citation | [2008] EWHC 2666 (Admin) |
| Docket Number | Case No: CO/4483/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 November 2008 |
[2008] EWHC 2666 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: CO/4483/2004
Mr Michael Fordham, Q.C. & Ms Emma Dixon (instructed by Foresters for the Claimant
Mr Robert Jay, Q.C. & Mr Vikram Sachdeva (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 15 – 18 July 2008
The claimant, Ms Georgina Downs, has for a number of years been a campaigner who has sought to persuade the public authorities concerned and in particular the defendant and his predecessors to take the public health and environmental concerns raised by crop-spraying seriously. She has developed a very considerable expertise in and knowledge of pesticides and their application by means of crop-spraying and is listened to with respect by those who are responsible for giving relevant advice to the defendant. She has been nominated for and has won awards for her campaigning activities. She has been accustomed to presenting her arguments, which involve detailed scientific considerations and reference to facts and figures, often complicated, to support them. Thus she has produced in this claim three very detailed statements which set out the factual basis for the arguments presented on her behalf and which seek to meet the contrary arguments put forward on behalf of the defendant. She also asked and was permitted to read a statement at the outset of the hearing summarising her personal concerns and the basis of her claim. She can rest assured, as I have no doubt she realised as she listened to the arguments at the hearing, that those representing her put forward all the arguments in a most competent and persuasive fashion. Mr Fordham, Q.C., demonstrated full knowledge and understanding of the complex issues involved. Having said that, I should also record that Mr Jay, Q.C., on behalf of the defendant, displayed a similar understanding of the details of his case. I am indebted to both counsel for their assistance.
Ms Downs' activities stem from her exposure to crop spraying as a person living next to fields which have been regularly sprayed for a number of years. She moved with her parents to her present address in May 1983 and since 1984 the adjoining fields have been used for arable crops and have been sprayed with pesticides. The garden of the claimant's house is immediately bordering the adjacent field with no protection from the spray which, since the field has always been sprayed to its edge, has inevitably drifted over the garden and entered the house via windows or doors if open, or through air vents. She was only 11 years old when first exposed to pesticide spraying and was frequently in the garden when it occurred. She began to suffer from ill-health, in particular flu like symptoms, sore throats, blistering in the mouth and throat and other problems. Neither she nor her parents nor her doctors realised for a time that it was possible that the exposure to pesticides could have caused her problems. In the early 1990s following deterioration of her health and an admission to hospital she began to seek information since she thought the crop spraying could account for her health problems. She discovered that the spray contained a number of chemicals which were designed to kill living organisms, whether animal (particularly insects) or vegetable (including fungi). The safety data sheets for pesticides contain warnings of the hazards to humans, some more serious than others. But warnings such as 'toxic by inhalation', 'do not breathe spray', 'toxic in contact with skin', 'risk of damage to eyes' are regularly found.
This led to the family closing windows when spraying was taking place and for some days after since the chemicals were noticeable after spraying. Attempts to obtain advance notice that spraying was to take place were not generally successful. Following an occasion in 1998 when he was exposed to spray which affected his eyes, the claimant's father took to wearing protective clothing and goggles if going outside when spraying was taking place. The adverse effect on her and her father's quality of life is all too obvious. And, in addition to the drifting spray, at harvest time there is inevitably frequent dust which itself is contaminated with pesticide residue and this adds to the problem. Blood and fat tests have shown, according to her doctor, traces of pesticides in her blood and body fat to an extent which is abnormal.
This claim was originally lodged by the claimant acting in person in September 200The decision then under attack was the refusal by the defendant “to apply mandatory no-spray buffer zones around agricultural land to protect rural residents from use of pesticides by farmers”. The defendant had, on 16 June 2004, requested the Royal Commission on Environmental Pollution (RCEP) to carry out a special study to examine the scientific evidence on which DEFRA had based its decisions on the risks to people from pesticide exposure. This followed evaluation of responses to two public consultations launched in July 2003 which sought views on the introduction of buffer zones around residential properties near farms and how residents could best be informed of the pesticides that were being sprayed. Four broad topics were to be covered by the RCEP: these were health dimension, scientific modelling, legal and policy issues and public concerns. The minister stated that, although the scientific advice given to him was 'very clear that the existing system provides full reassurance' in relation to public health, he recognised that there was a perception that current arrangements were inadequate. Thus a fresh and independent approach was needed. It was sensibly decided that the claim should be adjourned pending the RCEP report and DEFRA's response.
The RCEP reported in September 200It made a large number of recommendations, the most significant of which were that since in its view there could be a link between the exposure of residents and bystanders to pesticides and chronic ill-health, (acute effects being an accepted cause), a more precautionary approach should be taken and the current approach for assessing resident and bystander exposure should with some urgency be reflected by a different model. Further, it recommended the introduction of buffer zones, initially of 5 metres, that the recommended conditions in the Code of Practice should become statutory duties and that residents should be given prior notification of proposed spraying and should be entitled to know what pesticides were being used. On 30 December 2005 the Advisory Committee on Pesticides (ACP) produced a commentary published on 6 February 2006, which rejected those and the majority of the RCEP's recommendations. The ACP is the body which advises the defendant in relation to the authorization and use of pesticides and the measures needed to ensure the proper use of pesticides and the protection of public health. Following a response by the RCEP to the ACP's commentary, DEFRA responded on 20 July 2006. Essentially, it was decided that no further measures were needed so that the recommendations made by the RCEP were rejected.
On 20 October 2006 the claim was amended (counsel by then having been instructed). It seems that the decision under attack, namely the refusal to implement a no-spray buffer zone, was not formally changed, but the claim before me was against the alleged failure by the defendant to comply with the obligations imposed by the relevant E.C. Directive (91/414/EEC) in that the domestic regime did not provide for the necessary protection of public health, in particular the health of those such as the claimant who were residents living near fields which were subjected to crop spraying. Three grounds were relied on. First, it was argued that there was no risk assessment capable of identifying and properly guarding against the effect on residents as opposed to those who might happen at the particular time to be near the field, properly described as bystanders. Secondly, the approach adopted by the defendant that there should be no serious harm to human health was wrong in law: the Directive did not qualify the requirement that the use of pesticides should not result in harm to human health. Thirdly, it was said that the defendant's failure to act on the RCEP's conclusion that a more precautionary approach was needed was erroneous and that at the very least cogent and clear reasons were needed to justify such a failure. There was included a submission that the failure meant that there was a breach of Article 8 of the ECHR in that the interference with the claimant's private life was disproportionate and not justified by Article 8(2).
Concern about the possible effects on human health resulting from exposure to pesticides is nothing new. In 1951 a working party chaired by Professor S Zuckerman produced a report resulting from concerns about the safety of agricultural workers exposed to toxic chemicals. It made a number of recommendations, including that warning notices should be placed on gates giving access to fields that were being or had recently been sprayed, that spraying should not take place in windy conditions and that local doctors and hospitals should be notified when spraying was to be undertaken on farms in their locality and told what chemicals were to be used. In 1987, a report of the House of Commons Agricultural Committee expressed concern that:
“None of the government...
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