High Court grants permission for judicial review over alleged regulatory failings of Environment Agency in respect of landfill site emissions

The High Court has agreed to hear a judicial review challenge against the Environment Agency over its alleged regulatory failings in respect of a landfill site that has been a long-running source of complaints over pollution.

In Richards, R (On the Application Of) v Environment Agency [2025] EWHC 1269 (Admin) (23 May 2025), Mrs Justice Lang allowed the claim to advance on grounds which argued the Environment Agency has been in continuous breach of its operational duties owed to the claimant under Articles 2 and 8 of the European Convention on Human Rights.

The claimant is a child aged nine who lives with his family in Silverdale and who suffers from bronco-pulmonary dysplasia, which puts him on a pathway to developing Chronic Obstructive Pulmonary Disease (COPD).

Doctors have said that exposure hydrogen sulphide (H2S) was significantly impairing the claimant's health and quality of life, with detrimental effects on his respiratory health, reducing his life expectancy.

The claimant sought permission to apply for judicial review of regulatory failings on the part of the Environment Agency in respect of pollution from the landfill site in February.

He claimed that the defendant is in breach of the operational and procedural obligations in Articles 2 and 8 ECHR and has acted unlawfully at common law.

The family first brought a claim in July 2021, alleging regulatory failures on the part of the Environment Agency, which amounted to a breach of its positive obligations.

In a judgment handed down in September 2021, Mr Justice Fordham issued a declaration which required the Environment Agency to achieve prescribed outcomes within a prescribed timetable in relation to the landfill site.

The Environment Agency appealed the judgment, leading to the Court of Appeal finding that the declaration went beyond the scope of the court's functions.

The site operator (the IP) meanwhile went into liquidation in May of this year, leading to separate legal action being brought against the operator by Newcastle-under-Lyme Borough Council being dropped.

At the permission hearing of the child's second claim, held earlier this month (18 May), the claimant advanced four grounds of challenge.

Ground 1 contended that the Environment Agency has been in continuous breach of its operational duties owed to the claimant under Articles 2 and 8 ECHR in respect of the H2S emissions emanating from the Site since January 2022.

The judge considered grounds 1 and 3 together as they "cover essentially the same issues".

Ground three contended that that the Environment Agency acted irrationally,

Mrs Justice Lang said grounds 1 and 3 involved the following three issues:

• What the defendant knew or should have known about the cause of the pollution;
• The defendant's knowledge of the IP's persistent failure to comply with regulatory requirements adequately; and
• The protracted and serious nature of the H2S pollution.

Ground 2, meanwhile, challenged the Environment Agency's failure to comply with its procedural obligations under Articles 2 and 8 ECHR to provide information to the public to enable it to assess environmental risks.

Ground 4 concerned the lawfulness of the defendant's acts and omissions since the IP entered into liquidation on 28 February 2025.

The claimant divided ground 4 into three sub-grounds. Sub-ground 1 submitted that the Environment Agency continues to owe to the claimant the positive obligations under Articles 2 and 8 ECHR to take reasonable and appropriate measures to reduce H2S emissions from the site and that it must exercise its powers under regulation 57 of the Environmental Permitting (England and Wales) Regulations 2016 (EPR) compatibly with those obligations.

Regulation 57 enables the Environment Agency to arrange for steps to be taken to remove "a risk of serious pollution" that exists "as a result of the operation of a regulated facility" under the EPR regulation 57(1).

Under sub-ground 2, the claimant submitted that the Environment Agency made an irrational decision not to take all the measures set out in a closure notice, issued by the defendant in November 2024.

Sub-ground 3 argued that the Environment Agency breached the Tameside duty of sufficient enquiry when deciding what steps to take following the liquidation.

Lang J granted permission on Grounds 1 and 3 but noted that "issue 3 (the prolonged and serious nature of the pollution) is not a standalone challenge; it may be relied upon in support of issues 1 and 2".

She also granted permission on sub-ground 1 of Ground 4, and refused permission on ground 2, and on sub-grounds 2 and 3 of Ground 4.

The Environment Agency said it cannot comment on ongoing legal proceedings. 

Adam Carey