The Queen (on the application of Mathew Richards) v The Environment Agency
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 16 September 2021 |
| Neutral Citation | [2021] EWHC 2501 (Admin) |
| Docket Number | Case No: CO/2453/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2501 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/2453/2021
and
Ian Wise QC & Will Perry (instructed by Hopkin Murray Beskine Ltd) for the Claimant
Timothy Mould QC & Jacqueline Lean (instructed by The Environment Agency) for the Defendant
David Hart QC & Thomas Beamont (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Interested Party
Hearing dates: 18 th, 19 th, 20 th August 2021
Approved Judgment
I. Introduction
This case is about a 5 1/2 year old boy – Mathew – his community in the Staffordshire former mining village of Silverdale, and the Walleys Quarry Landfill Site (“WQLS”) in close proximity to which they live. Mathew is the Claimant. WQLS is operated by the Interested Party (“the IP”), a company previously called Red Industries RM Ltd. It is operated pursuant to an environmental permit (“the Permit”) issued by the Defendant, the Environment Agency (“the EA”) on 9 June 2005, transferred to the IP on 3 November 2016 and most recently varied on 30 October 2020. In legal terms, the case is about whether the EA is discharging (a) its statutory duty under section 6 of the Human Rights Act 1998 (“the HRA”) to protect Mathew's Article 2 right to life and his Article 8 right to respect for private and family life and (b) its public law duties at common law to act reasonably and take reasonable steps to acquaint itself with relevant information. In this judgment I will need to address key aspects of the context (§§6–35), the case-law (§§36–43) and the regulatory framework (§45). In the light of all that, I will describe Mathew's claim (§§45–47) before turning to analyse some discrete topics (§§48–54) and finally discuss the two critical questions: whether positive operational duties are triggered (§§55–57) and the content of those positive operational obligations in this case (§§58–63).
The hearing
The hearing took place over the course of 3 days on 18–20 August 2021. It was an expedited rolled up hearing pursuant to directions which I made on 23 July 2021: see [2021] EWHC 2090 (Admin). The parties and their legal teams prepared for the hearing with industry and focus, and a high degree of cooperation. I express the Court's gratitude to each team member in each team. The hearing was in-person in Court 1 at the Royal Courts of Justice. I agreed with the parties that it was appropriate, in the context of the Covid-19 pandemic, to adopt a degree of social distancing and devise a seating plan for the court room. All those with a speaking role were in the court room, together with some members of the legal teams and their clients, and there was space for some members of the public and press. On 16 August 2021 I made directions for a “hybrid hearing”, so that the proceedings in the courtroom could be viewed by observers remotely, using the platform CVP. The arrangements enabled additional persons – whether associated with the parties or members of the public or press – to observe from specified addresses in England and Wales (which my order designated as an extension of the Court for the purposes of the hearing). Steps were taken to publish in the cause list on the four days 17–20 August 2021 a notice describing the case and hearing dates, explaining that there was likely to be no additional capacity for observers in the court room, and giving my clerk's email address for any person who wished to observe remotely. My order regarding the hybrid hearing repeated the relevant prohibitions on making any visual or audio record and was sent to all persons observing remotely. I am satisfied that open justice was secured and indeed promoted. Anonymity was consciously not sought in this case because Mathew's mum had already spoken openly of her concerns to journalists and on TV.
The claim
I will describe in more detail below (§§45–47) the essence of the claim advanced by Mr Ian Wise QC, who appeared (with Will Perry) on behalf of Mathew, as I saw it. I give the following outline at the outset. Mathew is a vulnerable child who is particularly badly affected by hydrogen sulphide (H2S) emissions from WQLS. Those emissions have been described by Mathew's consultant paediatrician Dr Sinha as a public health emergency. They have placed the local community in crisis and living in unbearable conditions. For Mathew, the levels of hydrogen sulphide are preventing recovery and lung development, during a crucial window of time, absent which recovery he faces the development of the condition Chronic Obstructive Pulmonary Disease (“COPD”) which would dramatically shorten his life expectancy (meaning earlier death in adulthood). In all the circumstances there is an ongoing failure by the EA to comply with its HRA and common law obligations. This Court should make declarations that the EA's failure to take measures necessary to protect Mathew is a violation of his Article 2 and/or his Article 8 rights. The Court is not – as was clarified in Mr Wise QC's oral submissions – being asked to make a mandatory order requiring any particular operational step or steps. However, the Court must not proceed on the basis that there is some ‘safe level’ of hydrogen sulphide emissions which the EA should be requiring the IP to achieve. What is necessary, sufficient and appropriate is for the Court to recognise current breach by the EA, with the appropriate consequence being that the EA can and must then act so as no longer to be in breach. That encapsulates the claim in outline. I say now that I am satisfied that all grounds are arguable, and I grant permission for judicial review.
The evidence
The parties relied on the following written evidence. For Mathew there were the following: witness statements from his mum Rebecca Currie (dated 13.7.21 and 11.8.21); a witness statement from Dr Michael Salt, a local resident and nuclear physicist (13.7.21); a witness statement from Sian Rooney (10.8.21), a local resident and pharmacy technician; and five reports from Dr Ian Sinha, a consultant respiratory paediatrician (4.7.21, 22.7.21, 10.8.21 x 2 and 16.8.21). For the EA there were the following: a witness statement from Sarah Dennis, an installations technical leader who works at the EA in the team responsible for the environmental regulation of industrial and waste installation (6.8.21); a witness statement from David Browell, a senior adviser on landfill gas and technical lead on landfill gas issues at the EA (6.8.21); a witness statement from Christopher Lowe, senior air-quality adviser and team leader to the national odour team at the EA (6.8.21); and a witness statement (6.8.21) from Dr Nicol Coetzee a consultant in communicable disease control at Public Health England (“PHE”: see §8 below) who confirms that his is a “duly authorised statement on behalf of PHE”. For the IP there were the following: a witness statement from Paul Lealman, Group Operations Director at Red Industries which includes the IP (5.8.21); a report from Lesley Anne Heasman, managing director and principal environmental chemist at M J Carter Associates (5.8.21); and two reports from Professor Sir Colin Berry, a histopathologist and toxicologist (5.8.21 and 12.8.21). Some of this evidence required the permission of the Court, having been adduced subsequent to and not falling within the terms of directions in my Order of 16.7.21. I considered all the evidence, and submissions on the evidence, ‘de bene esse’: to be able to adopt an informed position. I made clear at the start of the hearing that if any party wished to maintain that evidence should be excluded, they would need to say why in their oral submissions. In the event, only one invitation to exclude evidence was maintained. Mr Wise QC said Ms Heasman's report should be excluded on the basis that prior work by her and by M J Carter Associates gave rise to a conflict of interest undermining her ability to give a proper expert opinion and the Court's ability to be able to rely on it. I cannot accept that either of those vices applies. The Heasman report, which properly draws attention to and deals with these matters, does not fall foul of the principle in Morgan & Baker v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107 [2010] 1 Costs LR 1 at §§67 and 71. It was appropriate – and made practical sense in this expedited case – for the IP to adduce the Heasman evidence. I am satisfied that it is appropriate to consider all the evidence in the case, and the submissions about that evidence made in writing and orally. I give permission for all the evidence that still needs it, including the expert reports not covered by my previous directions.
Experts in the ‘hot tub’
My previous directions included permission for Mathew to adduce expert evidence from Dr Sinha and for the EA to adduce expert evidence in reply if it wished to do so. They did not include permission for expert evidence from the IP, who had chosen not to participate in these proceedings at that early stage. I left open a question raised by Mr Wise QC, about whether it might be appropriate to hear oral evidence from any expert. In preparing for the hearing and liaising as to the arrangements the parties had and took the opportunity to grapple with what should happen. They agreed that Dr Sinha (for Mathew) and Professor Berry (for the IP) would attend on day one and give concurrent expert evidence under CPR35PD §§11.1–11.4, a process colloquially known as “hot tubbing”. The parties also agreed an agenda of 10 questions for me to use during the hot tubbing. I was satisfied that the agreed arrangements were appropriate and necessary for the just disposal of the...
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