A declaration by a High Court judge, which required the Environment Agency to achieve prescribed outcomes within a prescribed timetable in relation to a landfill site, went beyond the scope of the court's functions in dealing with a claim that the regulator was acting incompatibly with the Convention rights of a five-year-old boy with serious health problems, the Court of Appeal has ruled.
In R(oao Richards) v Environment Agency  EWHC 2501 Mr Justice Fordham had been told that the life expectancy of the claimant, Matthew Richards, would be reduced significantly if he suffered prolonged exposure to hydrogen sulphide produced by the Walleys Quarry landfill site in Staffordshire.
After a hearing in December 2021 the Court of Appeal decided that it would allow the Environment Agency’s appeal with immediate effect. It has now released its written judgment.
In Richards, R (On the Application Of) v The Environment Agency  EWCA Civ 26 Lord Justice Lewis said: “It [the declaration] ran counter to the principles established in the case law of the European Court governing the appropriateness of judicial intervention in the regulation of industrial activities in a difficult area of technical and social policy.
“Further, there was no finding that the appellant was in breach of its obligations under Articles 2 or 8 of the Convention at the time of the hearing in August 2021 and, on the evidence available at that date, there was no proper basis upon which it could be said that the appellant proposed to act unlawfully.
“In those circumstances, the grant of the declaration was neither justified nor necessary as there was no actual or proposed unlawfulness which called for a remedy.”
Agreeing, the Senior President of Tribunals, Sir Keith Lindblom, said: “The facts are obviously acute and attract much sympathy for Mathew and his family. They called for urgency, as well as sensitivity, in the court's handling of the claim. It is clear that the judge was aware of this. Understandably, he wanted to do what the court properly could to encourage the Environment Agency in the performance of its statutory functions. In a passage of his judgment headed “This is not a 'looking back', but an 'in the moment', case" (in paragraph 50), following his discussion of the relevant jurisprudence in the European Court of Human Rights, he said this:
“… Caution is one thing. Abdication is another. The inexorable logic of these cases is that public authorities – and courts must 'step up' at the time."
“That of course is right, in principle and in an appropriate case. But it is sometimes in circumstances such as these that the court must take the greatest care not to exceed the role it has. This may be so, for example, where a claim for judicial review has been made not merely promptly, but also, at best, prematurely.”
Sir Keith said that in this case, the relief sought in the claim was predicated squarely on asserted breaches of the Environment Agency's obligations under Articles 2 and 8 of the Convention, which were said to be extant and continuing.
“But as is clear from his judgment, the judge did not find that any such breach had occurred. Under section 8 of the 1998 Act, he identified no unlawful act and no proposal to act unlawfully. There was no unlawfulness requiring a remedy. Yet the judge nevertheless granted relief. And he did so not by way of an advisory declaration, but in the form of an order framed in terms which were both mandatory and prescriptive.”
The Senior President added: “Like Lewis L.J., and for the reasons he gives, I think the judge was wrong to do that. His order was not "just and convenient and … in the interests of justice" (paragraph 64 of the judgment), nor was it "the correct, just and proportionate order in all the circumstances of this case" (paragraph 68). To grant such relief in this case was, in my view, to step beyond the role of the court in determining the claim on the facts as they were at the time.”
The Court of Appeal dismissed the claimant’s cross-appeal.
The BBC reported that the solicitor to Matthew’s family, Rebekah Carrier of Hopkin Murray Beskine Solicitor, called the Court of Appeal’s ruling a "very disappointing judgment". She also said they would take the case to the UK's highest court "as a matter of the utmost urgency".