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Claimants in European Court of Human Rights bid after Supreme Court refuses permission to appeal in dispute over approach of regulator to landfill site

The Supreme Court has refused the family of a five-year-old boy permission to appeal in a dispute over the Environment Agency’s regulation of a landfill site near his home, saying that the application “does not raise an arguable point of law in the context of this case”.

However, the claimants have said they will urgently seek to take the case to the European Court of Human Rights.

In January the Court of Appeal ruled that a declaration by Mr Justice Fordham, which required the Environment Agency to achieve prescribed outcomes within a prescribed timetable in relation to the Walleys Quarry landfill site in Staffordshire, went beyond the scope of the court's functions.

The family of Matthew Richards had argued that the regulator was acting incompatibly with his Convention rights.

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In R(oao Richards) v Environment Agency [20201] EWHC 2501 Mr Justice Fordham was told that Mathew’s life expectancy would be reduced significantly if he suffered prolonged exposure to hydrogen sulphide produced by the site.

After a hearing in December 2021 the Court of Appeal decided that it would allow the Environment Agency’s appeal with immediate effect. It released its written judgment in January.

In Richards, R (On the Application Of) v The Environment Agency [2022] 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.”

Commenting on the Supreme Court’s decision, Mathew’s mother Rebecca Currie said: “I feel that Mathew has been completely let down, first of all by the Environment Agency who are meant to protect us from dangers like poisoned air, and now by the legal system. Despite the High Court recognising the seriousness of this situation and telling the Environment Agency to do more to stop the scandal of a private company being able to pollute the air that we breathe, we are now back where we started.”

However, she said she was determined not to give up and would ask the European Court of Human Rights “to step up where our own courts have failed”.

Rebekah Carrier of Hopkin Murray Beskine, Mathew’s solicitor, said: “The Supreme Court has missed the opportunity to clarify the correct approach to the regulation of environmental hazards. This is extremely disappointing for Mathew and his community, who seek to have the threat to Mathew’s life taken seriously.

“The reference in the decision to refuse permission to the context of this case is hard to understand as the Court were provided with up-to-date evidence from two medical consultants that the continued air pollution from Walleys Quarry Landfill Site is still putting Mathew at risk of premature death in adulthood and continues to therefore pose a threat to his life. Mathew’s lawyers are very disappointed that Mathew and his community have been unable to secure the action needed from the UK courts. This leaves Mathew in the unenviable position of having to seek justice in an international court.”

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