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Environment Agency’s statutory duties under the Human Rights Act 1998

There has been a considerable amount of press and media coverage concerning a small boy, Mathew, described by a judge as “a vulnerable child who is particularly badly affected by hydrogen sulphide (H2S) emissions from WQLS” (Walleyes Quarry Landfill Site) close to which the child lived. An operational licence had been issued by The Environment Agency (“EA”). However, the emissions from the quarry were described as placing “the local community in crisis and living in unbearable conditions” and for Mathew they were, it was claimed “preventing recovery and lung development” at a critical time of his life. Unless the EA acted, the emissions “would dramatically shorten his life expectancy”.

Court proceedings were issued on behalf of Mathew not against the quarry operators but against the EA. Quoting the judge, Mr Justice Fordham “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 acquant itself with relevant information”. (The Queen (on the application of Mathew Richards) v The Environment Agency with Walleyes Quarry Limited as an interested third party [2021] EWHC 2501 (Admin).) The court was asked to find if the EA are in breach of the HRA and whether the EA can and must act so it is no longer in breach.

The judge found that both Article 2 and Article 8 were triggered by the emissions from the quarry, However, the EA had failed to comply with its statutory duties and had failed to implement “the advice of Public Health England as expressed in the Fourth PHE Risk Assessment (published 5 August 2020)”. It must design and apply such measures as are necessary to reduce off-site odours and continue to apply such measures in order to reduce emissions to an acceptable health level in the long term. Permission to appeal was reduced.

The judgement is long and thorough addressing the relevant case law, the regulatory framework and Mathew’s claim. It is interesting, too, for the application of ‘hot tubbing’ of the expert witnesses i.e. the questioning of the experts by the judge following 10 questions agreed by the parties. The judge said the process gave him “real assistance” in understanding the issues enabling him to crystallise the topics that really mattered. Although long, the judgement is well worth reading.

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