Court of Appeal examines limits of judicial authority

17 February 2022 by Jasper Gold

R (Richards) v Environment Agency Case [2022] EWCA Civ 26

Richards is, at its core, a case about the proper relationship between the courts, regulators and third parties who engage in potentially hazardous activities, but the Claimant in the case was none of these. Rather, it was Mathew Richards, a 6-year-old boy who suffers from lung problems, recovery from which was inhibited by emissions of hydrogen sulphide gas from the Walleys Quarry Landfill Site which is situated near his home in Staffordshire. The central question was whether the Environment Agency (EA) had taken sufficient steps to discharge its legal duties to protect the Claimant.

In Richards, the Court of Appeal set aside a declaration of Fordham J in which he had spelled out in some detail the scientific and regulatory goals that the EA would have had to meet in their regulation of emissions from the landfill. It is an interesting case for several reasons: it is the first domestic case to consider the human rights standards applicable to regulators tackling present threats under article 2 ECHR (the right to life); it discusses the limits of judicial power in the context of specialist regulators; and it also addresses complex and important questions about the requirements for, and functions of, judicial declarations.

Background

The background to the claim is fairly straightforward. The Claimant’s house lies close to the landfill. Like many landfill sites, activities which take place onsite lead to the emission of gases, including hydrogen sulphide. During 2021, levels of hydrogen sulphide increased, and local residents noticed unpleasant smells and other signs of the gas, leading to thousands of complaints.

The EA undertook monitoring and the operator voluntarily suspended accepting new landfill waste, but problems persisted and in July 2021 the Claimant brought a judicial review of the EA’s handling of the matter.

The First Instance Decision

In the High Court, the Claimant argued that the EA was in breach of positive obligations under arts. 2 and 8, ECHR. In particular, the Claimant argued that the EA was in breach of the Rabone operational duty under art. 2, which requires reasonable steps to be taken where there is a real and immediate risk to life, and also in breach of a similar duty under art. 8.

Fordham J’s judgment answering these questions was, as Lewis LJ said in the appeal judgment, a “long and complex” one, which “should be read in its entirety”. As well as reviewing the Strasbourg case law on the positive operational duty (and concluding it was equally applicable to situations where the risk was still operative), a number of other discrete issues were discussed, including the nature of a real and immediate risk to life (which he found included a severe reduction in the Claimant’s life expectancy) and the relevance of the impact of the operator’s activities on the local community to analysis under art. 2.

But the key aspect of the judgment for present purposes was toward the end (starting at paragraph 55), where Fordham J found that positive duties under both arts. 2 and 8 were “triggered”. This raised the question: “what does compliance with the positive operational duties require?”.

Fordham J answered that question as follows: the starting point was that the EA was a specialist regulator. It had a latitude, reflected in the concept of the margin of appreciation, in “(a) appraising a situation, (b) conducting a suitable enquiry and (c) identifying appropriate steps” ([58]).

Turning to what the EA had done, Fordham J accepted that the EA had so far taken reasonable steps: they had taken advice from Public Health England (which has since been replaced by the UK Health Security Agency) concerning the risk posed by hydrogen sulphide, not only in general but specifically in relation to the landfill. This “demonstrably discharged the duty to take reasonable steps to acquaint itself with relevant information”. ([59]). He then held, in an important passage, that “If the EA takes actions which have as their purpose and design the implementation of PHE’s recommendations and thus PHE’s advice, that response will constitute a discharge of the positive obligation…  because the specialist public health agency of the State has made strong and clear recommendations identifying what it is that needs to be achieved.” Implementing this advice was, Fordham J held, “not a question of this being sufficient, but also of this being necessary, to discharge the EA’s legal obligations”.

However, he found that EA had not done this. Fordham J held that he was “not satisfied, on the evidence, that officials within the EA have done what compliance with the applicable duties requires”. Rather than accepting the Claimant’s arguments that this put the EA in breach of its positive obligations, though, Fordham J went on to find that “it is not necessary – or appropriate – for this court to say that there is a current breach of its legal obligations”. Instead, he made a declaration in the following terms:

“In order for the Environment Agency to comply with its legal obligations, the Agency must implement the advice of Public Health England as expressed in the Fourth PHE Risk Assessment (published 5 August 2021), 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 Walleys 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.” ([64], emphasis mine).

The reason Fordham J gave for granting this declaration was to “provide the clarity, and the reassurance, which this case needs. It constitutes this Court saying… that in the light of all the evidence, it is clear that this outcome must be secured. It will secure practical and effective human rights safeguards.”.

The Fourth PHE Risk Assessment referred to was the most recent risk assessment from PHE, and, as the declaration makes clear when read with the judgment, provided, in Fordham J’s view, a benchmark standard which the EA were compelled as a matter of their positive obligations to attain (in whatever manner they thought proper). He said as much in terms, earlier in the judgment, when he referred to it as “ultimately [providing] the answer for the human rights analysis in this case”.

The Court of Appeal Decision

Both the EA and the Claimant appealed. The EA argued that the declaration ought not to have been granted for three reasons ([6]): first, that as there was no evidence that the EA was failing to address its responsibilities as the relevant specialist regulator, the declaration was neither justified nor appropriate; second, that it was an error of law to grant a declaration in the absence of a finding of breach. A further reason the declaration was opposed was that “required the appellant to achieve particular outcomes by particular times in circumstances where the assessment of risk might change and where there was no evidence before the court that the outcomes were capable of being achieved”.

The Claimant’s cross-appeal argued that Fordham J had in fact made a finding of breach despite his language to the contrary, and that if he hadn’t, he should have. Lewis LJ considered the grounds of appeal in turn.

EA’s Ground 1 succeeded. The proper role of the court was, Lewis LJ put it, “to adjudicate on whether a claim brought it made out, and, if so what remedy is appropriate”. Fordham J had exceeded that role in granting the declaration, as it went “beyond the proper limits of adjudicating the dispute”. Rather, it was “prescribing precise outcomes” ([64]). Fordham J by holding that compliance with the Fourth PHE Report was not just sufficient but necessary, had done “precisely what he recognised that a court should not do. He decided what level of emission would be acceptable”. In doing so he “elevated the advice given by PHE to a legally binding standard” ([64]-[69]).

The EA’s Ground 2 also succeeded. The key point here was that the declaration was looking to the future; it was “defining what [EA] would have to do in future to ensure that it did not act unlawfully”. While there had been a finding that the EA was “yet to address” its legal duties, this “was not a finding that [EA] were acting unlawfully at the date of the hearing” ([80]). Although declaratory relief is “flexible”, and the courts have recognised that “in exceptional circumstances, an advisory declaration may be granted clarifying the law on a particular issue”, this was only possible where it would remedy “actual or proposed unlawful action or inaction on the part of a public body”. This was not such a case, but even had an advisory declaration been sought, it would not have been appropriate, as the situation involved “assessing what action to take, at what time, in a complex regulatory and technical sphere where data and advice was emerging over time” ([81]-[86]).

Having made those findings, the court unsurprisingly went on to conclude that the cross-appeal failed: there had been no finding of breach, and one was not called for on the facts ([89]-94]).

Comment

There are many interesting elements to this case, which deserves close reading not only by those interested in judicial remedies (the focus of this blogpost) but also because of elements touched on with less detail here, such as the interaction between different government departments and positive duties under the ECHR.

At its core, Richards is a case about the proper limits of judicial remedial authority. In this respect, two aspects of case are particularly interesting. First is the divergent approaches to judicial overreach shown by the High Court and the Court of Appeal; second is the Court of Appeal’s approach to the role of declaratory relief.

Although Fordham J professed a sensitivity to questions of overreach, he plainly thought that the pressing need to ensure future compliance with human rights standards justified a keen level of judicial oversight of the regulatory process. This might not itself be wrong, but what took him beyond the pale, as far as the Court of Appeal were concerned, was turning the Fourth PHE Report from a way to achieve compliance with those standards to the way. This did not account for the possibility that the science might change (which was explicitly recognised at first instance: see [14]), but more fundamentally, it meant a judge deciding that a particular factual outcome was the only way that human rights standards could be upheld, and freezing that position into law.

The Court of Appeal was not convinced, with Lewis LJ holding (at [69]) that this overreach alone was grounds to allow the appeal, and that it “ran counter to the principles established by [ECHR] case law”. The lesson is that the gravity of a (potential) breach will not justify the court stepping in to tell a regulator how to do its job.

More novel, and potentially of greater practical import, is the Court of Appeal’s rejection of the declaration, which is to be celebrated. Had the declaration been upheld, it would have to be accepted as unproblematic that a party that fails to establish its pleaded case of past breach is allowed a second bite at the apple if it can convince a judge to grant a declaration about how the successful defendant must behave in future. This would doubtless encourage litigation with the express aim of securing declarations as to future behaviour even when no breach has occurred or can be proved to be likely to occur in future; this would, in practice, amount to a novel form of judicial legislation.

By rejecting this possibility, while emphasising the flexibility of declaratory relief, the Court of Appeal have stymied this possibility without tying the courts’ hands when it comes to granting appropriate declarations.

The Supreme Court has subsequently refused the Claimant permission to appeal.

Jasper Gold is a pupil barrister at 1 Crown Office Row.

David Hart QC and Thomas Beamont, also of 1 Crown Office Row, were instructed on behalf of the Interested Party.