Mathew Richards, R (on the application of) v Environment Agency [2025] EWHC 3219 (Admin)

[2025] EWHC 3219 (Admin)Case No AC-2025-LON-000626
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/12/2025
Before
MRS JUSTICE LIEVEN
Between
THE KINGClaimantMATHEW RICHARDSClaimantENVIRONMENT AGENCYDefendantsWALLEYS QUARRY LIMITEDInterested Party
Ian Wise KC and Catherine Dobson (instructed by Miles and Partners) for ClaimantGwion Lewis KC and Jacqueline Lean (instructed by Environment Agency Legal Services) for DefendantHearing Hearing dates: 4 th& 5 th November 2025This judgment was handed down remotely at 14:00 pm on 08/12/2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONORABLE MRS JUSTICE LIEVEN
[1]This is an application for judicial review of decisions of the Environment Agency (EA) concerning a landfill site known as Walleys Quarry at Cemetery Road, Silverdale, Staffordshire (“the Site”). The Claimant is a 9-year-old boy who lives in the vicinity of the Site. The Site was previously operated by Walleys Quarry Ltd (“the IP”) under an environmental permit granted by the EA (“the Permit”). It ceased to accept waste in November 2024 and went into liquidation on 28 February 2025. Since that time it has been an “abandoned” site.[2]The Claimant was represented by Ian Wise KC and Catherine Dobson. The EA was represented by Gwion Lewis KC and Jacqueline Lean.[3]This is the second claim for judicial review brought by the Claimant in respect of the site. The first claim succeeded in part before Fordham J and that decision was overturned by the Court of Appeal in R (Richards) v Environment Agency [2021] EWHC 2501 (Admin), [2022] Env LR 14 (High Court); [2022] EWCA Civ 26, [2022] 1 WLR 2593 (Court of Appeal) (Richards (1)).[4]The Claimant now brings a further judicial review. It is submitted that the EA is in breach of its positive operational obligations under Articles 2 and 8 of the European Convention on Human Rights (ECHR) for the period January 2022- November 2024 when the Closure Notice (CN) was served. The remedies that the Claimant was seeking by the end of the hearing were;a. A declaration that the EA was in breach of its positive obligations under Articles 2 and 8 ECHR between January 2022-November 2024 (“the relevant period”);b. A declaration that EA owes positive obligations under Articles 2 and 8 ECHR to take reasonable and appropriate measures to reduce Hydrogen Sulphide (H₂S) emissions from the Site to accepted health guidance levels and must exercise its powers under Regulation 57 Environmental Protection Regulations 2016 (EPR) compatibly with those ongoing obligations.

Grounds

[5]The Claimant advanced four Grounds before Lang J at the oral permission hearing. She granted permission on 1, 3 and 4 (sub-ground 1 only);a. Ground One – The EA’s failure to take timely and effective action to reduce H₂S emissions emanating from the Site, in breach of its operational duties under Articles 2 and 8 ECHR during the relevant period;b. Ground Three – The EA’s irrational failure from January 2022 until issuing the CN (28 November 2024) to review its action plan or take alternative regulatory steps;c. Ground Four (sub-ground 1) – The principle of the EA’s ongoing operational duties under Articles 2 and 8 ECHR should be set out in a declaration.[6]There was a preliminary issue as to what arguments the Claimant had been permitted to raise under Ground Four, in respect of the period after the Closure Notice was served. However, at the start of the hearing Mr Wise accepted that he was only pursuing the declaration in respect of positive obligations under Ground Four, as set out above, and no more specific findings.

The facts relating to the Site and the EA’s regulatory activities

[7]I take the facts both from the judgment of the Court of Appeal, Richards 1, the witness statements that have been filed in this case, and the history recorded in the Closure Notice Decision Document (CNDD). That document sets out the EA’s rationale for serving the CN and contains a number of appendices with the relevant reports and data analysis. I will refer to paragraphs of the CNDD, as “CNx”.[8]The central issue in this case is whether the EA acted with due diligence and proportionality in exercising its regulatory functions during the relevant time period. It is therefore necessary to examine both the information that was available to the EA at various times, and the actions that it took, in some detail.[9]This case is brought by the Claimant, and therefore the question of whether there is a breach of Articles 2 and 8 ECHR must relate directly to the impacts on the Claimant, rather than on the broader community. It is therefore necessary to explain the Claimant’s own facts, which are set out at paragraph 85 below.

The Permit

[10]The Site was first granted a Permit in 2005, which was subsequently varied to allow the operator to deposit up to 400,000 tonnes annually of certain specified waste types. The Permit allows a large number of different waste types (differentiated by codes known as European Waste Codes “EWC”). The most relevant terms of the Permit are set out at paragraphs 16-22 below.[11]The Permit was originally issued to Lafarge Aggregates Limited but transferred to the IP on 3 November 2016.[12]The principal problem arising from the Site has been caused by the emission of landfill gas. Landfill gas is the product of anaerobic digestion of biodegradable waste deposited at the Site. The largest components of landfill gas are methane and carbon dioxide, but it can include other gases, including H₂S. H₂S is produced by the biological reduction of sulphates within waste, such as gypsum. Gypsum is a sulphate mineral that is widely used in construction materials such as plasterboard. Under anaerobic conditions bacteria can degrade the sulphate-bearing waste, giving rise to H₂S. H₂S is toxic and malodorous.[13]As is explained in more detail below, gypsum is commonly found in trommel fines, which are the product of waste production after it has been placed through a trommel machine and reduced to small particles. It is highly likely that much, if not all, of the sulphate-contaminated waste on the Site was brought onto the Site as trommel fines.[14]From late 2020 onwards significant numbers of complaints were received about foul-smelling odours coming from the Site. It is perhaps difficult to overstate how unpleasant these odours are for people living in the vicinity of the Site. The smell is like that of rotten eggs, and can cause irritation of the eyes, sickness, headaches, vomiting and other symptoms. I will deal with the impact on the Claimant separately below.[15]Mr Hitchings was the EA’s Regulated Industry Manager and Programme Executive for the EA team regulating the Site between October 2022 and March 2025. He sets out the relevant history and the steps taken to control landfill gas.[16]Under the Permit there were a series of conditions regulating the types of waste that could be accepted, the criteria for accepting waste, the environmental management systems at the Site, operating techniques, the monitoring of emissions, the control of potential nuisance and the closure and decommissioning of the landfill.[17]The Permit required engineered systems to be put in place to contain, control and monitor landfill gas emissions and leachate. Leachate is a liquid formed when water percolates through waste, collecting soluble or other substances on the way that can also contribute to landfill gas generation.[18]Condition 2.9 required an approved landfill gas management plan.[19]The landfill was required to be lined with impermeable materials and then, when that area was filled, to be capped with an impermeable layer. There was provision for temporary caps where an area had not been fully filled.[20]Wells were then required to be drilled into the waste and connected to pipework and fans which drew out the gas to then be burnt, either for electricity or to be flared. There were a series of separate wells to capture leachate. Leachate was then directed to a treatment plant, and either discharged into the public sewer or tankered off site. These measures were all intended to minimise the escape of landfill gas, including H₂S, from the Site.[21]It is apparent in this case that a particular problem has been the deposition in the Site of gypsum. Under the Permit, gypsum and other high-sulphate-bearing waste can only be deposited in cells where no other biodegradable waste is accepted, see para 2.6.5 of the Permit. This was to prevent the sulphate-bearing waste from reacting with other waste and producing H₂S.[22]Condition 3.3.1 of the Permit made provision for an approved odour management plan. This was incorporated into the Permit as a required operating technique.

The relevant emissions standards

[23]There are two sets of standards for emissions of H₂S which have been referred to in this case. I have taken the description below from the UKHSA documentation; a) In respect of the WHO standards: i) - The WHO guideline value of 7 ug/m 3 (5 ppb) over a 30-minute averaging period is a short-term odour value protective of odour annoyance. ii) Odours can become a nuisance and start to affect people, causing temporary symptoms including headache, nausea, dizziness, watery eyes, stuffy nose, irritated throat, cough or wheeze particularly if a person has a pre-existing respiratory condition, sleep problems and stress. Individuals will react differently to the odour of hydrogen sulphide. Some people may be more sensitive to hydrogen sulphide odour than others. As the hydrogen sulphide concentration increases more people would be expected to have symptoms, particularly when the concentration exceeds the WHO 30-minute odour annoyance level of 7 ug/m 3 on a regular basis. b) In respect of the US EPA RfC: i) An estimate (with uncertainty spanning perhaps an order of magnitude) of a continuous inhalation exposure to the human population (including sensitive subgroups) that is likely to be without an appreciable risk of deleterious effects during a lifetime. ii) Exposure to concentrations of hydrogen sulphide above the US EPA RfC does not necessarily mean health effects will occur, but it reduces the margin of safety that is considered desirable to protect health.[24]In the light of the number of complaints emanating from the site, the EA installed a number of monitoring stations around the Site from March 2021. These monitored H₂S concentrations. Unfortunately, it transpired in August 2023 that the monitoring stations had not been properly calibrated and therefore a re-calibration exercise had to be undertaken. The effect was that in a number of instances the percentage of time when the WHO standards were breached turned out to be higher than the original data showed. I attach at the end of this judgment the agreed figures for percentage of time at each monitoring station that the WHO guideline figures were breached.[25]In broad outline it can be seen from those figures that emissions of H₂S peaked in the winter of 2021/22. They then fell through the summer of 2022. They went up somewhat in the winter of 2022/23, with the highest WHO breach level of 18% at MMF1 in November 2022, and 13% at MMF9 in December 2022. They fell again through the following summer of 2023. They then went up sharply in the winter of 2023/24, with highs of 27% in March 2024 at MMF1 and 19% at MMF9 in February 2024. It is accepted by both parties that for chemical/biological reasons emissions of H₂S increase in colder weather.[26]The position is somewhat more complicated with the EPA figures. This is a standard for long-term exposure. The data appears to show that for the period from mid-2021 to August 2023 three of four MMFs were above the EPA standards across the period on the cumulative average, and a significant proportion of the monthly averages were above the standard. For September 2023 to June 2025 all four MMFs were above the EPA standard.[27]The patterns of emissions are important because Mr Wise submits that they show that the EA’s regulatory approach was not working, whereas Mr Lewis submits the opposite. It is not possible to wholly disentangle changes that were happening as a result of the weather from the impact of activities on the Site and the EA’s regulatory actions. However, the figures in the Appendix are useful in showing trends.[28]There are also figures on monthly odour reports/complaints from the local community. These show a fairly similar pattern to the emissions data, with a very high peak in the winter of 2020/21, with 8446 complaints in January to March 2021 (shortly before monitoring commenced). There is a major uptick in the winter of 2021/22, and then another uptick in the winter of 2023/24. Some caution has to be applied to complaints figures because it may well be that local residents had some “complaint fatigue”.

January 2021 onwards

[29]In January 2021, Sarah Dennis, the EA Officer in charge of regulating the Site at that time, developed a bespoke Compliance Action Plan. In February 2021 the IP suspended waste acceptance for a period following an indication from the EA that it was minded to serve a Suspension Notice. In March 2021 the EA issued an Enforcement Notice requiring the IP to install temporary and permanent capping. This was carried out in April 2021. In May 2021, waste acceptance on the Site recommenced.[30]Mr Hitchings states that in 2021 the EA believed that the source of the elevated H₂S emissions from the Site was historically-deposited gypsum-contaminated material, in the form of “waste fines” or “trommel fines”. These are small particles that result from the screening of waste through a trommel machine. The EA did not think the source was new deposits of waste coming onto the Site.[31]In May and June 2021 Ms Prince, who had worked for the IP, contacted the EA and alleged that the IP was carrying out unlawful practices on the Site and deliberately conspiring with waste producers to evade regulatory control. She is referred to below as the “whistleblower”. The evidence is that the EA passed this information to their crime division to consider prosecution. It is the Claimant’s case that from this point onwards the EA were on notice that the IP was an operator that was prepared to deliberately evade regulatory scrutiny.[32]The Claimant commenced the first judicial review in July 2021. The hearing before Fordham J was on 18-20 August 2021 and judgment was handed down on 16 September 2021. He made declarations as to how the EA should proceed but did not make findings as to breaches of either Article. A summary of his conclusions is set out at paragraph 90 below.[33]The EA appealed to the Court of Appeal and judgment was given on 17 January 2022. I will refer below to the legal analysis of the Court. However, for the purpose of the regulatory history, it is important to record that the Court of Appeal found that there was no proper basis for the Court to find a breach as at August 2021, see [95].[34]The Court said at [90]-[95]; “90 As at the hearing in August 2021, the position was this. The appellant had taken steps to ensure that sulphate-bearing waste would not be deposited with other biodegradable waste at the site. Landfill gas, including hydrogen sulphide, was being released from waste already deposited at the site. The appellant took the view that that problem was best addressed through the mechanism of capturing landfill gas (by, for example, capping areas of the land ll site) and extracting gas and destroying it by using it for electricity generation or burning it o›. Steps had been taken to achieve those aims. Further, the operator had been required to submit a revised landfill gas risk assessment and landfill gas management plan by 31 July 2021 which the appellant would review. Following the increase in complaints in late 2020 and early 2021, the appellant had established monitoring stations to obtain data as to the levels of land ll gas including hydrogen sulphide at and in the vicinity of the landfill site. It also took advice from PHE. 91 As at mid-August 2021, the levels of hydrogen sulphide exceeded the WHO 30-minute average and that would give rise to odour complaints and affect well-being but was not considered of itself to be a threat to life. The level of hydrogen sulphide did not exceed acceptable levels for medium-term exposure (14 to 364 days). That was the advice from PHE. So far as long term exposure was concerned, it was only with the advice given on 5 August 2021 that PHE recommended the reduction of concentrations of hydrogen sulphide to levels below those in the USEPA guidelines. The appellant would necessarily need to have time to consider the 5 August 2021 advice, consider whether or not the measures taken would be sufficient or decide whether further steps could and would need to be taken and if so, within what timescale. Ms Dennis, in her witness statement dated 6 August 2021, confirms that the appellant would continue to review the position and the response from the operator. The appellant cannot be criticised for not addressing the fourth PHE report in its evidence. It was required to provide its evidence by 12 noon on 6 August 2021 and the fourth PHE report was published on 5 August 2021. Furthermore, the appellant had also sought advice from PHE on Dr Sinha’s 4 July 2021 report and his addendum report. PHE had advised that those reports did not affect its risk assessment. 92 In all those circumstances, the Judge was correct not to find that the appellant was in breach of its obligations under article 2 of the Convention as at the date of the hearing in August 2021. There was no proper basis upon which a court could find such a breach on the evidence before the court at that date. I would go further. There was no proper evidential basis for concluding, at that date, that the appellant was proposing to act unlawfully in the sense that it was proposing to act in breach of its obligation under article 2 of the Convention. At that stage, it had accepted that there was a serious problem at the landfill site with landfill gases, it had taken relevant action and had proposed further action, and it had required the operator to submit a revised risk assessment and landfill gas management plan. It established a monitoring system in March 2021 to obtain reliable data. It had sought advice from PHE. The latest advice was provided shortly before the hearing. The evidence was that the appellant was reviewing matters. 94 In that regard, the appellant knew of the complaints about the landfill site from late 2020. It had established monitoring stations from March 2021. The reports published by PHE showed that the levels of hydrogen gas consistently exceeded the WHO 30-minute average by a considerable margin and there was the potential for significant odour complaints over the period from March 2021 when monitoring began. We do not know when the first three reports were published. The first two reports recommended that all measures be taken to reduce the off-site odours from the landfill site. The third report strongly recommended this. The fourth report, published on 5 August 2021, strongly recommended that this be done as early as possible. On two days in March 2021, the levels also exceeded the WHO 24-hour average guideline at one of the monitoring stations. Against that background, the appellant had taken steps to ensure that certain areas of the landfill site were capped and that certain points where landfill gas was known to be emitted were also capped. It had sought an increase in the capacity for collection and destruction of landfill gas. It had required the operator to provide a revised risk assessment and a revised landfill management plan by 31 July 2021 which was under review. Again, the Judge was correct not to find that the appellant was in breach of its obligations under article 8 of the Convention as at the date of the hearing in August 2021. There was no proper basis upon which a court could find such breach on the evidence before the court at that date. Further, the appellant was obtaining relevant information and advice, was ensuring that the operator took appropriate steps to address the problem, and was keeping matters under review. The appellant was seeking to address the problem and, in so doing, was striking a fair balance between competing interests and was acting with due diligence. There is no basis for inferring from the evidence available at the hearing in August 2021 that the appellant was proposing to act in breach of its obligations under article 8 of the Convention. For those reasons, I would dismiss the cross-appeal. 95 I would allow the appeal, dismiss the cross-appeal and set aside the declaration granted in this case. The declaration, which required the appellant to achieve prescribed outcomes within a prescribed timetable, went beyond the scope of the court’s functions in dealing with a claim that the appellant was acting incompatibly with the respondent’s Convention rights. It 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.”[35]It is for this reason that the Claimant’s case as to breach of Articles 2 and 8 ECHR only commences in January 2022.[36]The history of the regulation of the Site by the EA in the relevant period divides between a large number of efforts to persuade the operator to produce the appropriate plans and actions so as to reduce the levels of H₂S; and the various audits and monitoring that was undertaken both on the Site and with the waste producers bringing waste onto the Site.[37]These two parallel streams of action in my view show many of the problems with the EA’s approach. There are a large number of actions around the various plans, variations and reviews which show the EA being at least active in this field. However, the various audits which Mr Lewis took me through showed that the EA had copious evidence that contaminated material was being brought onto the Site, and that the operators were either unwilling or unable to put in place measures to prevent this happening. However, the EA’s focus, certainly until the winter of 2023, remained, as explained by the Court of Appeal at [70], on “waste already deposited on the site” and “capturing landfill gas” on the Site, rather than on new waste being brought onto the Site.[38]In October 2021 the EA published its plan following the judgment of Fordham J, together with a document headed, Regulation of Walleys Quary landfill site: Supporting Technical Document to our plan to reduce hydrogen sulphide emissions (“the Plan”). Mr Hitchings explains that the Plan was subject to periodic reviews; “30. The Plan was subject to periodic review, with successive iterations published up to and including April 2023, and the Agency continued to require the Interested Party to undertake the various actions set out in it. The February 2022 update of the Plan confirmed that between October 2021 and February 2022 the following key measures identified by the Agency had been completed by the Interested Party:• the submission of an updated Capping and Phasing Plan, an updated Landfill Gas Management Plan, and modelling relating to landfill gas production and atmospheric dispersion;• the installation of 27 new or replacement wells and gas transfer infrastructure;• a review of the flare capacity, which concluded that a permanent flare with twice the capacity would be installed. 31.The September 2022 update of the Plan confirmed that the following key measures identified by the Agency had been completed by the Interested Party between March and September 2022:• bi-monthly surface emissions surveys (in March and May);• the installation of over 26,000m² of permanent capping on Phase 1;• temporary clay capping on Phase 2;• the installation of 17 leachate pumps in gas wells;• the installation of 12 horizontal gas wells and their connection to the landfill gas management system;”[39]Mr Hitchings emphasises the work that had been done on the Site pursuant to the Plan; “33.The final review of the Plan was published in April 2023. This appears at [CB/C119]. By this time, the following key actions had been completed by the Interested Party:• the installation of temporary and permanent capping on Phases 1 and 2• the reconnection of a gas extraction well;• the installation of a new ring of pipework for landfill gas;• the insulation of borehole headworks;• the installation of 7 new wells (“pin wells”) for gas extraction;• an upgrade of the gas booster for the gas management system. 34.The Agency was planning a further review of the Plan and the Technical Document in late 2023. However, we became aware of an issue with the H₂S monitoring data being recorded by the analysers in our MMFs during a routine audit on 21 August 2023. The Agency had used the monitoring data to inform the preparation of the Technical Document and its reviews of the Plan. The Agency investigated and resolved the issue with the calibration of the analysers, as it has explained publicly. This meant that it was able, in August 2024, to produce and share adjusted data with UKHSA for the purpose of its health risk assessments. Between August 2023 and August 2024, the Agency continued to regulate the Site in accordance with the Plan (as last reviewed in April 2023).”[40]Mr Lewis took the Court to what he described as the three most important audits that were carried out by the EA in respect of waste that was being brought onto the Site – the Waste Producers Audit; Site Audit 1; and Site Audit 2.[41]The Waste Producers Audit was carried out between November 2021 and April 2022. On 3 November 2021 the EA served an information notice on the IP under Regulation 61 EPR requiring details of waste producers who had sent categories of waste to the Site which the EA considered had the potential to include gypsum. This information was then used to produce a Waste Producers Audit between late 2021 and mid-2022.[42]The CNDD deals with the outcome of this audit at CN36:
“36. Through an audit of waste producers known to send waste to Walleys Quarry, undertaken from November 2021 to April 2022, we identified that a significant proportion of the wastes produced by them were mechanically treated, mixed waste fines (List of Wastes Code 19-12-12 or 17-05-04), but which contained gypsum. We found that: • Waste transfer sites did not have documented procedures for the management and segregation of plasterboard from mixed waste inputs despite the ban on gypsum going to landfill sites without an appropriate cell; Reported data showed that less plasterboard was removed from transfer stations than was received as a source-segregated stream, indicating that operators were not taking sufficient steps to separate plasterboard; • Plasterboard entered mechanical treatment processes, contaminating the processed fractions sent to landfill; • Analysis of trommel fine samples demonstrated total sulphate contamination of up to 11%, typically between 3 and 8%; • Significant amounts of mixed municipal (20-03-01) or mixed construction waste (17-09-04) inputs to transfer stations were incorrectly described and coded, for example as 17-01-07 (bricks, tiles & concrete). • Significant amounts of mechanically treated waste outputs from transfer stations (19-12-11*/19-12-12) were incorrectly described and coded, for example as soil and stones (17-05-04). • Transfer station operators were either unfamiliar with, or failed to act fully upon, the requirements in the WM3 guidance to properly characterise and assess their mirror-coded post-treatment waste outputs; • Operators had generally undertaken very little sampling and testing of their waste outputs. Where sampling had been carried out, operators were unable to show the reliability of the samples and had insufficient data on which to base an assessment supporting a non-hazardous classification; • Shredded general and trommel fines wastes, described on Duty of Care paperwork as ‘qualifying fines’, did not meet the criteria in the guidance on low-rate landfill tax. (See Appendix 2 - audit CARs and WARs for JJC Hire Ltd EAWML404402, National Construction Demolition Ltd EAWML404495, AB Waste Management Ltd EAWML42483, Baileys Skip Hire Ltd EAWML400745, Enviro Skip Hire Ltd EAWML53865, Nick Brookes Recycling EAWML50066)”

We found that:

[43]Mr Lewis went through a number of the Compliance Assessment Reports (CAR) in relation to one producer, JJC Hire Ltd, in order to show that the EA had monitored their site in respect of gypsum management procedures; had assessed them as being non-compliant; and had then taken “robust action”.[44]In my view, the CARs in respect of JJC Hire tend to show the degree to which the EA’s activities, although strenuous, were ineffective. There are a series of obviously serious non-compliances from January 2022 onwards identified by the EA. However, the final CAR in the appendices to the CNDD (May 2022) shows continued non-compliance and states at p. 234; “We… believe the absence of these procedures now increases the risk of gypsum contamination within your waste outputs destined for landfill…”. Mr Lewis accepted that there was no evidence as to whether the situation at JJC Hire ever improved in respect of gypsum contamination.[45]I note that JJC Hire was the example that Mr Lewis chose to take the Court to. It is therefore in my view not unfair to infer that this was not an isolated case of one aberrant waste producer or one history of rather ineffective action.[46]What this evidence shows is that the EA were on full notice in early 2022 that the producers sending waste to the Site were not taking appropriate steps to prevent gypsum contamination of the trommel fines, which were then, at least in part, being sent to the Site.[47]The second audit that Mr Lewis relied upon was the Site Audit at Walleys Quarry between January 2021 and February 2022 (“Site Audit 1”). This audit was completed in April 2022. The terms of that Waste Audit Report are again stark; “By signing written descriptions of waste (transfer notes) which were deficient for the reasons set out below when waste was transferred to WQL, you are likely to have allowed• waste carriers to deposit controlled waste otherwise in accordance with the licence; and• waste producers to knowingly cause the deposit of controlled waste otherwise in accordance with the licence. Deficiencies identified• incorrect written descriptions;• inaccurate waste classifications as appropriate WM3 assessments had not been completed.• Written descriptions of waste did not include all the information on the transfer note required by Regulation 35 of the Waste (England & Wales) Regulations 2011, namely, container type, accurate SIC code, address of transferor, making it clear whether the person(s) transferring the waste was the producer or the waste carrier, and missing waste carrier registration numbers; As the disposer of controlled waste you have failed to take all such measures applicable in that capacity as are reasonable in the circumstances on transfer of the waste, to secure that there is transferred such a written description of the waste as will enable other persons, namely the transferor of the waste, to avoid a contravention of Section 33 of the Act. The reasonable measures are set out in Section 2c above. This is a breach of Section 34(1)(c) of the Environmental Protection Act 1990.” Deficiencies identified This is a breach of Section 34(1)(c) of the Environmental Protection Act 1990.”

Deficiencies identified

[48]In the light of Site Audit 1 the EA served an Enforcement Notice on 10 May 2022 requiring the IP to update its management systems and procedures by 10 June 2022. Negotiations then took place with the IP and the revised procedures were ultimately agreed to be implemented by 1 August 2022. On 5 August 2022, after a further site inspection, the EA served a further CAR that the capping on Site was not in accordance with the approved Plan.[49]In November 2022 the DEFRA Chief Scientific Advisor’s Scientific Advisory Group (SAG) published a report on the Site. This is referred to at paragraph 55 below.[50]The third EA audit Mr Lewis relies on is the Site Audit assessing compliance between 1 August and 9 September 2022 (“Site Audit 2”), which is described as follows by Mr Hitchings; “Site Audit 2 covered the period between 1 August 2022 and 9 September 2022. It involved a remote desktop review of information supplied by the Interested Party, a waste stream review of producer sites, a site inspection on 5 October 2022 and an assessment of the computerised record system at the Interested Party’s head office building on 19 December 2022. Agency officers reviewed more than 1200 documents as part of this exercise. 43. The Agency completed work on Site Audit 2 in March 2023, then completed the audit report and related CAR. Site Audit 2 showed that the Interested Party was not fully complying with its revised waste acceptance procedures, and was continuing to accept waste fines with the potential to be contaminated with gypsum.”[51]Site Audit 2 was completed in March 2023. It showed that the IP had not fully complied with the agreed waste acceptance procedures. On 5 May 2023, the EA issued a further Enforcement Notice. This required the IP to comply with its various waste acceptance procedures. The Notice was not complied with, see CN39.[52]Another stream of the EA’s enforcement activity throughout the period were the efforts to persuade/force the IP to cap and cover the Site in accordance with the relevant conditions and procedures. CN48 explains the importance of proper capping; “48. Appendix 3 lists 10 CARs spanning 3 years where officers recorded permit noncompliance’s or identified concerns with waste cover or capping. Minimising the extent of the site that is open or unsealed is crucial to:(a) reducing fugitive emissions of landfill gas; and(b) maximising the potential for the positive extraction of landfill gas from the waste mass and the subsequent destruction of the gas. 49. Shredded mixed waste or fines (as opposed to mixed waste in bulky form), which audit findings also indicate to be contaminated with gypsum, tend to degrade very quickly and generate significant volumes of landfill gas from the active tipping phase, even before any gas collection infrastructure can be installed. This gas is more likely to escape the waste mass in the form of fugitive emissions, including H₂S. (a) reducing fugitive emissions of landfill gas; and (b) maximising the potential for the positive extraction of landfill gas from the waste mass and the subsequent destruction of the gas. 50. The CARs listed in Appendix 3 show that that officers have repeatedly raised concerns about inadequate capping of waste.”[53]One important source of information about whether contaminated waste was being brought onto the Site would have been random sampling of the waste. There was an unannounced waste sampling exercise on 14 December 2021. From the samples of waste the average total sulphate was 0.024%. It is not entirely clear precisely what this denotes, but certainly in respect of expectations of sulphate contamination in trommel fines it is a low figure.[54]Mr Hitchings refers to the only other direct evidence of samples taken from the Site; “On one occasion, on 19 April 2024, officers obtained a sample from a consignment delivered to the Site, described as general waste EWC 19 12 12which, when analysed, was found to have a total sulphate content of 8.5%. The Interested Party informed the Agency that it used a 2.5-3% sulphate content as a level to trigger conversations with suppliers. There is no formal definition in legislation or guidance of high sulphate content. 49. Despite considerable regulatory activity and interventions, including the waste audits and on-site assessments since 2022, the sample taken on 19 April 2024 was the only direct evidence obtained by the Agency that waste with a sulphate content of 5% or higher had been deposited at the Site. There was no other direct evidence that waste contaminated with a high level of gypsum was being deposited at the Site to support an inference that the source of H₂S emissions from the Site was waste deposited after 2021.”

The Department for Environment Food and Rural Affairs (DEFRA) Chief Scientific Advisors Report November 2022

[55]The Chief Scientific Advisor at DEFRA established an expert group (the SAG) to advise on the possible causes of the high odour emissions at the Site and potential solutions. It reported in November 2022 (“the Report”). Both parties rely on parts of the Report. The Claimant points to those passages that highlighted the need to take steps to ensure that sulphate-contaminated waste was not brought onto the Site. The EA points to the SAG’s findings that there had been good progress with reducing emissions from the Site.[56]The Report makes clear that it does not deal with the health implications of the emissions, as that fell outside of the SAG’s expertise. The Executive Summary states; “The SAG highlighted a series of factors that have contributed to the odour problem:• Insufficient leachate removal from the site coupled with inadequate gas management led to high volumes of H₂S being produced within the landfill which could not be adequately captured, contained, and destroyed by existing infrastructure.• Between 2016 and 2021 there had been an apparent increase in input of trommel fines into Walleys Quarry Landfill; by 2020 trommel fines likely comprised approximately 50% of all the wastes that had been deposited since 2011, with the SAG considering potential gypsum contamination of trommel fines being a primary source of the H₂S.• Operating the landfill site with a large, uncapped, active area (particularly during the winter period) left the landfill waste exposed to water ingress and allowed for the fresh waste to become saturated which the SAG considered a likely contributor to the very high H₂S production. Furthermore, the large, uncapped area allowed greater volumes of H₂S to escape from the landfill without being captured by the existing gas management system. The SAG acknowledged that, while they have been conducting their investigations (between September 2021 and April 2022), good progress has been made in mitigating H₂S emissions by permanent capping and increased gas extraction and treatment. The concentration of H₂S in the landfill gas, as measured within the gas management system, has substantially reduced; from around 6,500 parts per million (ppm) in June 2021 to between 2,100 and 2,400 ppm in early-2022[1]. The SAG considered the combination of increased gas capture and lower concentrations of H₂S in the landfill gas having been pivotal in reducing the concentrations of H₂S being measured off-site.”[57]The Report considers the potential cause of the high H₂S emissions and states; “Furthermore, the issue of H₂S generation from older waste (years) versus more recently deposited waste (weeks to months) was discussed, with two hypotheses considered: 1. The majority of H₂S production comes from the large, saturated zone (based on the consistent findings in published literature and EA research; EA, 2007; Ko et al, 2015; Bergesen and Haarstad, 2008). 2. High H₂S production rates were generated by more recently deposited landfill material in the large, uncapped area of wet recently placed waste (owing to its being less compacted, with higher permeability, and having larger areas for reactions to occur) In relation to the first hypothesis reducing leachate levels and applying site capping should contribute to reduced waste saturation, in turn reducing H₂S production rates. In relation to the second hypothesis, the agreed reduction of working areas with recent waste and the more rapid capping of recent waste should reduce H₂S production rates. In addition, increased capping will help improve gas collection efficiency, regardless of which scenario may be the more dominant. There was no direct evidence to support the second hypothesis. Whilst it is true that the large decline in bulk H₂S concentrations observed from July 2021 to January 2022 occurred after a large reduction in inputs of trommel fines into the site during the first two quarters of 2021 this could be purely circumstantial. Furthermore, as there were no time series data for H₂S volumes in the gas prior to July 2021 the possibility of there being a large seasonal fluctuation in H₂S production cannot be ruled out. Owing to the current unknowns around the generation of H₂S from landfilled waste containing a high proportion of trommel fines, the SAG concluded that both scenarios could be making a significant contribution to H₂S generation at Walleys Quarry Landfill, and it is not currently possible to determine which may be the more dominant. The SAG suggested that experimental studies into the generation of H₂S from trommel fines from a range of sources and under varying moisture regimes, would be beneficial for future regulation of this waste stream.”[58]The first recommendation in the Report is that the EA should continue to confirm that waste with a high sulphate content is not being accepted.[59]The conclusions state; “The concentration of H₂S in the landfill gas and overall mass of H₂S in the gas management system reduced substantially during 2021; from around 6,500 ppm in June 2021 to between 2,100 and 2,400 ppm in early-2022. The SAG considered the combination of increased gas capture and lower concentrations of H₂S in the landfill gas having been pivotal in reducing the concentrations of H₂S being measured off-site. It remains the SAG’s opinion that the combination of high leachate levels and a high landfill component of gypsum bearing trommel fines was a driving factor in the high H₂S production at Walleys Quarry Landfill, creating ideal conditions for SRB to generate higher H₂S emissions than are typical at non-hazardous landfills. Furthermore, the topographical and meteorological conditions have played a key role in the dispersion of site odour across the surrounding areas.”

The waste returns

[60]The IP submitted waste returns to the EA on a quarterly basis. These show the proportion of waste coming onto the Site, which by its nature is likely to be contaminated with gypsum, i.e. in waste categories in which gypsum contamination is likely, see CN40. The return showed that the proportion of waste inputs in this category was 68.8% for Quarter 3 of 2021, 76.5% for Quarter 4 of 2021 and 76% for Quarter 1 of 2022. While this table was compiled in February 2024, the Claimant submits that there is no reason why this could not have been prepared in January 2022. The information was available contemporaneously and should have been taken into account at the time.[61]It is important to understand that these returns do not show the quantum of contaminated material which was actually coming onto the Site or the actual level of contamination. What these returns do show is that a very high proportion of the material coming onto the Site was from those waste codes which showed a high likelihood of gypsum contamination.

The heat maps

[62]The IP provided surveys of the Site which showed where H₂S was being released on the Site. They show the distribution of H₂S concentrations in gas wells from September 2021, May 2022, July 2022, September 2022 and January 2024. These are important because it is possible, to some degree, to see a correlation between the location of the H₂S emissions releases and the location of the new deposits. They are referred to in some detail in the CNDD, and produced at Appendix 17.[63]Mr Lewis relied on the series of heat maps to show that, up until January 2024, the H₂S emissions were coming from across the Site, indicating that emissions were largely emanating from historic disposals. It is only in January 2024 that the heat map appears to show emissions primarily emanating from areas of new deposits. The EA relied on the heat maps indicating that the problems primarily lay with historic emissions up until the winter of 2023/24.

May 2023 – November 2024

[64]There are a series of CARs from June 2023 which make it clear that the IP was continuously failing to install the required capping on the Site.[65]In August 2023 the UKHSA produced an Addendum Health Risk Assessment, based on the adjusted monitoring data.[66]On 19 October 2023 the EA issued an Enforcement Notice requiring installation of temporary capping by 12 December 2023. This appears not to have been complied with until January 2024.[67]Through the winter of 2023/24 the emissions recorded at the monitoring stations and the complaints both went up very significantly.[68]On 1 March 2024 the EA served a Suspension Notice on the IP. Mr Lewis submitted that the trigger for this was the evidence from the monitoring stations that the improvements in emissions that had taken place appeared to have gone into reverse through the winter of 2023/24. This Suspension Notice was withdrawn on 12 March 2024 after the IP had complied with its requirements.[69]It is of some relevance to the difficulties the EA was facing that in 2024 the IP commenced two judicial reviews against the EA. The first was in respect of the October 2023 CAR, which the EA conceded. The second was in respect of an Enforcement Notice and CAR, which I assume was ultimately withdrawn.

Closure Notice

[70]On 28 November 2024 the EA issued a Closure Notice to the IP under Schedule 10 of the EPR. The EA concluded that the IP had failed to adequately improve its management of the Site. The CNDD is a long and very detailed document which needs to be read in full. What is set out below is merely some of the parts which are of most relevance to the present challenge. Many parts of the relevant history are set out above and therefore do not need to be repeated from the CNDD.[71]At [29] the compliance rating history is set out. The IP’s compliance has remained in Band F (the lowest band) between 2021-2023, with a significant history of non-compliances. I return to this matter below at paragraph 136.[72]At [36] there is a detailed analysis of the waste audits and the occasions on which those audits either found significant levels of trommel fine samples with sulphate contamination; significant levels of wrongly described waste outputs; or poor sampling. These problems certainly persisted between 2021-2023, see [37]-[38].[73]At [43]-[47] the CNDD deals with emissions from new waste deposits. At [46] it says; “The distribution of H₂S in the landfill gas wells has been plotted on a series of heat maps (Appendix17). The highest concentrations of H₂S are associated with the operational area and reduce over time as areas of the site are progressively capped. This is illustrated by the May 2024 FID plot (Appendix 6 southern end of the site) and September 2024 clearly showing the distribution of H₂S is concentrated in the recently installed gas extraction wells located in the operational area at the time. Elevated levels of H₂S, as shown by the red colours; the blue zones are capped and show reducedH₂S. A concentration of over 10,000 ppm H₂S was recorded in gas well “WALHOR14”, in the southern part of the site in January 2024. This information tells us that the more recently deposited gypsum-contaminated waste continues to be a source of high concentrations of H₂S, prolonging the odour incident. 47. It is difficult to control landfill gas in the active tipping area until a cap is installed. Uncontrolled gas emissions and odour pollution impact will therefore continue, unless the operator can stop inputs of the waste producing H₂S emissions, and rainwater infiltration”[74]At [48]-[50] the number of failures to cover and cap the landfill adequately in order to stop fugitive emissions is set out.[75]At [51]-[56] the failures to manage leachate and surface water are set out. The CNDD states that “the frequency and scale of exceedances is indicative of very poor leachate management”, see [53], and comments that “Leachate management is important because H₂S production is maximised in wet waste”, see [55].[76]The information on odour reports is set out at [66]-[68] and is quite shocking. In May 2021 an area of 31 km² containing over 27,000 properties was impacted by odour pollution. By May 2024 that had reduced to 14.8 km² and 13,000 properties. The scale of odour reports can be seen in Appendix 1, where between 2021-2024 there were 78,088 odour reports relating to the Site. This is on any scale greater than any other site in England.[77]At [69]-[76] the CNDD deals with the ambient air quality monitoring data, including at [71] the problem with the H₂S data monitoring. The CNDD states that the EA is confident in the data it has collected since September 2023 on H₂S.[78]At [79] the CNDD sets out references to the UKHSA Health Risk Assessment dated October 2024; “The results for hydrogen sulphide in October 2024 were above the WHO odour annoyance guideline value for a significant percentage of the time at MMF Maries Way and a considerable percentage of time at MMF Silverdale Pumping Station and MMF Galingale View. Exceedances of the odour annoyance guideline value may result in headache, nausea, dizziness, watery eyes, stuffy nose, irritated throat, cough or wheeze, sleep problems and stress. The more time spent above the guideline, the greater the likelihood of symptoms being experienced and consequently impacting people’s health and wellbeing. The hydrogen sulphide data up to the end of October 2024 shows continuing exposure to the population around the landfill site. MMF Maries Way, MMF Silverdale Pumping Station and MMF Galingale View show a monthly average concentration in October above the long [1] term (lifetime) health-based guidance value. The cumulative average concentrations for MMF Maries Way and MMF Galingale View are above the long-term (lifetime) health-based guidance value. At MMF Silverdale Pumping Station, the cumulative average concentration is below the long-term (lifetime) health-based guidance value. Exposure to concentrations of hydrogen sulphide above the US EPA RfC does not necessarily mean health effects will occur, but it reduces the margin of safety that is considered desirable to protect health. The risk to long-term (lifetime) health cannot be excluded, where the cumulative average concentrations are above the long-term health based guidance value. Currently this risk is likely to be small, but the longer the exposure is above the US EPA RfC, the greater any potential risk will become. People living around the site may experience health effects such as irritation to the eyes, nose and throat, in addition to headache, nausea, dizziness, watery eyes, stuffy nose, irritated throat, cough or wheeze, sleep problems and stress described above. People who have health conditions that affect breathing, such as asthma and chronic obstructive pulmonary disease (COPD), may experience increased frequency and/or severity of symptoms. UKHSA is concerned that this is a protracted incident and the odour annoyance guideline value for hydrogen sulphide is exceeded for a significant percentage of the time at one of the monitoring sites and a considerable percentage of time at two of the monitoring sites. The cumulative average concentration is above the long-term health-based guidance value at two of the monitoring sites. UKHSA strongly recommends that all measures be taken to reduce the off-site odours from the landfill site, to reduce the health impacts experienced in the local community.”[79]At [80] the CNDD refers to the UKHSA producing an Addendum Report using the updated monitoring data from the EA. That Report effectively reiterated the same point and said; “UKHSA strongly recommends that all appropriate measures be taken to reduce the off-site odours from the landfill site, to reduce the health impacts experienced in the local community.”[80]At [87] the CNDD says; “Until late 2023 this strategy had been broadly successful in reducing H2S emissions and associated pollution compared with the levels experienced in 2021, despite the Environment Agency still having concerns about WQL’s poor management of the site.”[81]The CNDD then sets out a detailed rebuttal of the points made by the IP in response to the “minded to issue a closure” notice.[82]The IP sought to judicially review the CN, but permission for judicial review was refused by Heather Williams J on 4 February 2025 in R (On the Application of Walleys Quarry Ltd) v Environment Agency [2025] EWHC 521 (Admin).[83]The Claimant issued this judicial review on 21 February 2025.[84]On 27 February 2025 the IP appointed liquidators and the Permit was disclaimed the following day. On 6 March 2025 the EA decided to exercise its powers under Regulation 57 EPR in respect of the Site.

The facts relating to the Claimant

[85]The Claimant is a nine-year-old boy living in Silverdale. He was born prematurely on 11 February 2016 and suffers from the following medical conditions:(i) Preterm Birth and Bronchopulmonary Dysplasia (BPD) (sometimes called Chronic Lung Disease of Prematurity), a condition with lifelong consequences requiring management strategies revolving around promoting excellent lung growth to compensate for the early problems of prematurity.(ii) Cerebral palsy secondary to a bilateral brain haemorrhage, causing hemiplegia, seizures, and a need for gastrostomy feeding due to unsafe swallowing.(iii) Chronic respiratory issues, including frequent wheezing and infections, leading to recurrent medical interventions.[86]For the first three years of his life, from 2016-2019, the Claimant lived at Galingale View, some 200 metres east of the Site. From 2019-2023, he lived in Victoria Close and Victoria Street, each being some 400 metres northwest of the Site, beyond MMF1. In March 2023, he moved to Bath Road, some 1.3 miles from the Site, where he currently lives.[87]On 4 July 2021, Dr Sinha of Alder Hey Children’s Hospital and the University of Liverpool produced an independent expert medical report for the purposes of the first judicial review brought by the Claimant in 2021. Dr Sinha concluded that H₂S emissions from the IP were materially contributing to the Claimant’s ill health, and that continued exposure would be detrimental to both his quality of life and his life expectancy, because survivors of BPD are at risk of adult illnesses such as COPD.[88]On 18 February 2025, Dr Sinha produced another report for the purposes of these proceedings. The Claimant had developed a new condition since 2021: Electrical Status Epilepticus in Sleep (ESES), which further compromises his respiratory health, as the accompanying medication carries significant risks, including immunosuppression, which can lead to severe or fatal infections (3.3.3). His chest scans, spirometry results, and CT Imaging results demonstrated that the Claimant had limited capacity to compensate for environmental stressors such as pollution.[89]Dr Sinha’s conclusions in 2025 are as follows:
“1. My opinion remains as stated in my initial report of 4 July 2021. Mathew’s respiratory health has been significantly and detrimentally impacted by hydrogen sulphide exposure from Walleys Quarry. My previous assessment remains unchanged: the exposure has taken away opportunities for his vulnerable lungs to develop normally, impairing his respiratory growth, and placing him at high risk of early-onset COPD. 2. Mathew’s respiratory health continues to be adversely affected by pollution from Walleys Quarry. While much of the structural lung damage occurred in early childhood, chronic low-level exposure to air pollution is well-documented to contribute to ongoing airway inflammation, impair lung function over time, and increase vulnerability to respiratory infections and exacerbations. Even in the absence of frequent acute symptom flare-ups, continued environmental stress on his airways will accelerate his long-term lung function decline. Given his already compromised respiratory status, exposure to harmful pollutants -particularly in the critical years of childhood – will cause further deterioration. 3. Mathew’s life expectancy remains shortened due to ongoing exposure to pollution from Walleys Quarry. His failure to achieve catch-up lung growth, demonstrated by his reduced lung function, keeps him on a trajectory to develop COPD at an early age. This is a condition strongly linked to reduced life expectancy. While his lung impairment was initiated by prematurity and BPD, the presence of sustained environmental pollution in his early years has compounded this damage, further limiting his lung growth potential. Although the major structural injury has already occurred, continued exposure to airborne pollutants from Walleys Quarry would accelerate his lung function decline, worsening his long-term prognosis, and reducing his life expectancy.”

Judgment of Mr Justice Fordham in Richards (1)

[90]In Richards (1), the Claimant alleged that the EA had failed to take all reasonable steps within its powers to address the level of H₂S emissions emanating from the IP site, thereby breaching Article 2 and Article 8 ECHR.[91]Expert written and oral evidence was produced, and there was disagreement between Dr Sinha and Professor Berry, summarised by Fordham J at [21]-[22]. Professor Berry said that the Claimant’s development of COPD would be a consequence of his premature birth, and that no exposure to H₂S could be a factor unless it were above the “good reliable safety level”. In contrast, Dr Sinha said that there was no good reliable safety level for H₂S emissions, especially for children, and there was a 3-5 year recovery window for the Claimant to avoid developing COPD, with the risk exacerbated by H₂S emissions. Fordham J said at [45] that he would not determine a safe level of H₂S emissions. However, he accepted Dr Sinha’s evidence on COPD at [56].[92]The Defendants argued that Article 8, rather than Article 2, was the appropriate Convention right by which to test the adequacy of the EA’s response, pointing, at [48], to Fadeyeva and Lopez Ostra. Fordham J decided to consider both Articles 2 and 8, noting points of overlap between these Convention rights at [49]. Then, at [52], he considered that a reduction in life expectancy could meet the Article 2 threshold. Finally, at [56], he accepted that the positive obligation under Article 2 was triggered, because; “(1) COPD is an illness which reduces life expectancy, and which would squarely fall within the ambit of the illnesses described at Brincat [82], to which Article 2 has been applied. (2) the Claimant 's BPD puts him on the pathway to COPD … on the evidence of Dr Sinha:(i) there is a pathway from BPD to COPD which is inexorable unless the Claimant recovers;(ii) the Claimant is not recovering; and(iii) the Claimant's non-recovery is attributable to current levels of H₂S exposure from the IP… This distinguishes the present case from Fadeyeva, which was advanced and analysed under Article 8. The Government there pointed out that Ms Fadeyeva's medical history did not link the deterioration in her health to unfavourable environmental conditions in her place of residence ([44]). If this is wrong, the consequence is that substantially the same principles will be applicable by reference to Article 8, as in Brincat.”[93]Fordham J granted a declaration as to what steps the EA needed to take to comply with its legal obligations.[94]As set out above, that decision was successfully appealed by the EA, but the findings on Article 2 were not themselves expressly appealed or overturned.

The Law

[95]The Claimant’s case is that there is a breach of the EA’s positive obligations under Articles 2 and 8 ECHR and therefore the EA is in breach of the Human Rights Act 1998.[96]The law on these duties was set out by the Court of Appeal in Richards (1) at [12]-[15]; “12 The scope of the obligation has been considered in a number of decisions of the Supreme Court and the European Court of Human Rights. For present purposes, and this is not intended as an exhaustive analysis, the obligation has been recognised as imposing a negative duty to refrain from taking life save as provided for in article 2(2) of the Convention and a positive duty to investigate deaths for which the state might be responsible. In addition, there is a positive obligation to protect life in certain circumstances. This latter obligation includes a duty on the state to put in place a legislative and administrative framework to provide an effective deterrent against risks to life (often referred to as the “framework duty”). It also includes a positive obligation where the authority knows of a real and immediate risk to life to take measures within the scope of its powers which, judged reasonably, it might be expected to take to avoid the risk. See generally the observations of Lord Dyson JSC in Rabone v Pennine Care NHS Trust [2012] 2 AC 72 especially at para 12. 13 In the context of the regulation of industrial processes or dangerous activities which give rise to a real and immediate risk to life, the obligation (the framework duty) encompasses, in summary, the need to have regulations dealing with the licensing, setting up, and operation of the activity which, amongst other things, makes it compulsory for those concerned to take practical measures to safeguard citizens against the risks inherent in such activities. See, generally, the decision in Budayeva v Russia (2008) 59 EHRR 2, paras 129—132. In relation to the positive obligation to take such steps, within the powers of the authority concerned, which are judged reasonable to address any risk, the following general principles are set out in paras 134—136 of the judgment, and repeated in substance in other cases (footnotes omitted):
“134. As to the choice of particular practical measures, the court has consistently held that where the state is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the state has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. “135. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation states enjoy, as the court has previously held, in di–cult social and technical spheres . . . “136. In assessing whether the respondent State had complied with the positive obligation, the court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic legality of the authorities’ acts or omissions, the domestic decision making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved.” 14 Article 8 of the Convention provides that: “1. Everyone has the right to respect for his private and family life, his home, and his correspondence. “2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary y in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 15 The exercise of functions involving the regulation of activities which cause industrial pollution may need to be assessed by reference to article 8 of the Convention. The pollution must directly affect a person’s home, or family or private life, and must attain a certain minimum level of severity if it is to fall within the scope of article 8(1) of the Convention. The assessment of the minimum severity is relative and depends on all the circumstances of the case including the intensity and duration of the nuisance and its physical or mental effects. A public authority responsible for regulating the activity will need to establish that its actions are justified within the meaning of article 8(2) of the Convention. In broad terms, it will need to establish that the measures it has taken strike a fair balance between the interests of the individual and the community affected by the pollution and the legitimate interests recognised by article 8(2). See generally Fadeyeva v Russia (2005) 45 EHRR 10. Again, in considering what is required of a public authority in this context, the European court has said that it is not for that court to substitute its view as to what is the appropriate policy in a di–cult technical and social sphere, and it is not for that court to determine exactly what should be done (see paras 96, 104 and 128 of the judgment in Fadeyeva).” “134. As to the choice of particular practical measures, the court has consistently held that where the state is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the state has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. “135. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation states enjoy, as the court has previously held, in di–cult social and technical spheres . . . “136. In assessing whether the respondent State had complied with the positive obligation, the court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic legality of the authorities’ acts or omissions, the domestic decision making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved.” “1. Everyone has the right to respect for his private and family life, his home, and his correspondence. “2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary y in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[97]Mr Wise took the Court to a number of cases that post-date the decision of the Supreme Court in Rabone in respect of Article 2, and Fadeyeva in respect of Article 8. There is in some of the Strasbourg caselaw something of an elision between the approach under Article 2 and Article 8. I would make three preliminary points before turning to the caselaw. Firstly, Article 2 is an unqualified right by which the right to life must be protected. The obligation under the Article is not to intentionally deprive someone of their life. Therefore, it follows that there must be a direct nexus between the scope of the positive obligation and an impact on life. This is reflected in Rabone, and the earlier caselaw, in the need for the state authority to be aware of a “real and immediate risk to life”. Article 8, on the other hand, is a qualified right, which extends well beyond a risk to life. There must therefore be a distinction between the scope of the two Articles.[98]The second preliminary point is that in this field the facts of the cases are critical. The Strasbourg Court always addresses the specific facts of the specific case. Mr Wise was inclined to say that the facts of the individual cases did not matter, and to point to general statements of principle. However, particularly when considering the parameters of positive obligations under Article 2, as opposed to those that fall under the qualified right in Article 8, in my view the specific facts of each case do matter in understanding why the case fell, or did not fall, within Article 2.[99]The third point is that there is a trend in the Article 8 caselaw to move beyond a test of “due diligence” of the State actor in undertaking its positive obligations, towards introducing a test of, or at least paying close regard to, the “effectiveness” of the measures taken.[100]In Budayeva v Russia [2008] 59 EHRR 2 the Court was considering deaths following a mudslide in a town which was known to be prone to mudslides. The focus of the factual case was on the failure of the authorities to put in place appropriate defences and to provide a warning system, see [124]. The Court found that there had been a breach of the positive obligation under Article 2.[101]At [132] the Court considered the nature and the scale of known risk to life. At [133] the Court expressly referred to the caselaw under Article 8 as being relevant to the assessment under Article 2. The most important passages are those set out by the Court of Appeal in Richards (1), at paragraph 34 above. The three key principles that emerge are;(i) the choice of means of regulation fall largely within a margin of appreciation;(ii) the Court should not impose an impossible or disproportionate burden; and(iii) the margin of appreciation is wide in fields of technical regulation. Although the ECtHR is referring to the State having a margin of appreciation, the principle that the regulatory body, here the EA, is acting in a highly technical field with competing pressures, and their views should be given appropriate respect, is well accepted.[102]Brincat v Malta, application 60908/11, decided on 24 July 2014, concerned the impact of asbestos on a number of workers in shipyards in Malta. One applicant had died of mesothelioma, a cancer directly related to asbestos exposure. The medical condition of the other applicants is set out at [12] and [13]. The Court held at [84]-[85]; “84. As to the remaining applicants who also worked at MDC, the documentation presented indicates that all but one applicant (Mr Dyer) have respiratory problems and plaques in their lungs, together with some other complications related to exposure to asbestos, but have not to date been diagnosed with malignant mesothelioma. It can neither be said that their conditions constitute an inevitable precursor to the diagnosis of that disease, nor that their current conditions are of a life-threatening nature. It follows that Article 2 does not apply in their case and the complaint brought by the remaining applicants under the Article under examination is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4. 85. However, in the context of dangerous activities, the scope of the positive obligations under Article 2 of the Convention largely overlaps with that of those under Article 8 (see Öneryıldız, cited above, §§ 90 and 160). The latter provision has allowed complaints of this nature to be examined where the circumstances were not such as to engage Article 2, but clearly affected a person’s family and private life under Article 8 (see Lόpez Ostra v. Spain, 9 December 1994, Series A no. 303-C and Guerra and Others, cited above). The Court therefore considers it appropriate to examine the complaints in respect of the remaining applicants under Article 8, which is applicable in the present case (see also Roche v. the United Kingdom [GC], no. 32555/96, §§ 155-156, ECHR 2005-X).”[103]In Cannavaciulo v Italy [2025] EHRR 15 the Court found a breach of Article 2 in respect of a very long running issue of waste management, including of hazardous waste, outside Naples. The Court said at [396]; “396 The Court further reiterates that, in their choice of specific practical measures to comply with their obligations, national authorities enjoy a wide latitude, also in light of the complex operational choices which they must make in terms of priorities and resources (see, mutatis mutandis, Budayeva and Others, cited above, §§ 34-35). This is all the more so considering, as already noted several times, that the pollution phenomenon under scrutiny is characterised by an exceptional degree of complexity (see paragraph 73 above). That being said, it is within the Court’s sphere of competence to assess whether the authorities approached the problem with the required diligence given the nature and seriousness of the threat at issue. In this respect, the Court stresses that the timeliness of the authorities’ response acquires primordial importance (see Verein Klima Seniorinnen Schweiz, cited above, § 538). It further considers that the nature and seriousness of the threat required a systematic, coordinated, and comprehensive response on the part of the authorities.”[104]In Kapa v Poland [2022] EHRR 18 the Court was considering the impacts of an extremely high level of traffic on a residential road, caused by a decision to develop a motorway extension with “total disregard for the wellbeing of [local] residents”, see [161]. The Court found a breach of Article 8. The relevance of the case lies in the importance the Court gave to the ineffectiveness of the efforts made by the authorities; “172 The Court observes that the authorities faced a difficult task of mitigating the problem of very heavy traffic resulting from the rerouting of the A2 motorway down Warszawska Street. They also had a very limited choice of possible adaptation measures. The Court therefore accepts that the authorities made considerable efforts to respond to the problem. This, however, does not change the fact that these efforts remained largely inconsequential, because the combination of the A2 motorway and the N14 road was, for many reasons, the preferred route for drivers. As a result, the State put vehicle users in a privileged position compared with the residents affected by the traffic.”[105]In Pavlov v Russia, application 3162/09, decided on 11 October 2022, the case concerned very high levels of industrial pollutants, which had caused area pollution in Lipetsk over many years. The period in question was from 1998-2024. However, there was evidence that the position had improved from 2013/14 onwards. The Court, in finding a breach of Article 8, again focused strongly on the effectiveness of the measures taken. At [85] it said; “85. At the same time the Court observes that the domestic court limited itself to merely establishing that the measures were taken by the authorities, without addressing a central issue in the proceedings of whether those measures were in fact effective and capable of remedying the adverse consequences of industrial pollution for the applicants, in the light of the State environmental reports.”[106]At [90] the Court appears to have drawn the distinction between the two periods on the basis of the effectiveness of the actions.[107]Mr Wise relied upon Stoicescu v Romania, application 9718/03, decided on 26 July 2011, which concerned the Claimant having been seriously injured by a pack of stray dogs and the Romanian authorities’ failure to take appropriate and effective action. Mr Wise referred to [59]; “The Court must also look behind appearances and investigate the realities of the situation complained of. That assessment may also involve the conduct of the parties, including the means employed by the State and their implementation. Indeed, where an issue in the general interest is at stake, which reaches a degree of gravity such that it becomes a public health issue, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner (see, mutatis mutandis, Hutten-Czapska v. Poland [GC], no. 35014/97, § 168, ECHR 2006-VIII). In its assessment, the Court accepts that the measures and actions to be adopted and taken are not an obligation of result, but an obligation of means.”

Submissions

[108]Mr Wise (together with Ms Dobson) submits that the EA is in breach of its positive obligations under Articles 2 and 8 ECHR for the period in question. He relies on the finding of Fordham J at [56] for the submission that Article 2 is engaged in the Claimant’s case, given his medical conditions, the impact on his life expectancy and the nature of the emissions from the Site. He points to the fact that Fordham J’s finding in that regard was not the subject of the appeal.[109]In respect of both Articles Mr Wise submits that the EA, by October 2021, knew or ought to have known that a primary cause (even if not the sole cause) of the H₂S emissions was new contaminated waste that was being brought onto the Site. He relies on a number of matters set out in the factual background above. The EA had notice from the information provided by Ms Prince that the IP was a “rogue operator” that was prepared to breach regulatory control and deliberately mislead the EA. The EA’s approach appeared to be to treat this as an enforcement matter for its crime division, rather than treat the IP’s statements and returns with sufficient scepticism in the light of what Ms Prince had told them.[110]From the Waste Producers Audit in April 2022 it was clear that those operators supplying the Site with waste were failing to sort the waste to exclude, sufficiently or at all, gypsum from the waste being brought onto the Site. This was in a context where the EA knew that gypsum contamination in trommel fines was a significant cause of pollution from landfills, and therefore sorting the waste at source was critical.[111]Site Audit 1 also showed that there were serious failings on the Site.[112]He relies on the heat maps to show that there were H₂S emissions coming from parts of the Site where there was new waste, indicating plainly that new waste was a cause of the emissions.[113]He points to the outputs from the monitoring data which indicate that the steps the EA was taking were ineffective. The monitoring data shows a continuous breach of the EPA standards and frequent breaches of the WHO standards, with breaches virtually every month, for varying extents within the month. It was therefore apparent that different actions were needed.[114]The EA failed to undertake appropriate steps, such as covert surveillance, to discover whether gypsum-contaminated material was being brought to the Site.[115]He relies on the DEFRA report dated November 2022, which made clear that there was a concern over the new material on the Site, and not merely the historic material, and made recommendations that such material was very carefully monitored.[116]For all these reasons the EA had full knowledge that contaminated material was being brought onto the Site and failed to take effective action in light of that knowledge.[117]He also submits that the EA knew that key parts of its “Contain Capture and Destroy” strategy (i.e. effective capping of the Site) were not working, but failed to act in an effective manner. The EA’s response was unreasonable and inadequate because it continued to rely on the IP to implement the strategy despite being aware that the IP was persistently failing to adequately cover and cap the Landfill and was persistently failing to manage leachate and surface water within the Landfill. The CNDD shows that the EA knew that: 1) The IP exceeded leachate limits in its permit in every quarter since 2021; 2) 16 CARs were issued in relation to non-compliance with capping requirements between February 2021 and January 2025; and 3) 17 CARs were issued in relation to failures in leachate and surface water management between February 2021 and January 2022.[118]Mr Lewis submits that the EA put great effort into trying to understand the causes of the H₂S emissions and stopping them. He emphasised that the EA had to act in a proportionate manner, balancing the interests of the Claimant and the local community, with those of the IP and the broader public interest. He submitted that if the EA had served a Suspension Notice or CN at earlier points, without full and robust evidence to support them, those notices would have been appealed and would not have been upheld by a Planning Inspector. The EA was caught in a very difficult position between the IP and the local residents.[119]It is important to assess the EA’s actions in the light of what was known at the time, rather than with the benefit of hindsight. Mr Lewis did not accept that the evidence shows that the EA knew or ought to have known that a primary cause of H₂S emissions was the delivery of fresh high-sulphate-bearing waste to the Landfill, rather than historically-deposited waste. The testing after an unannounced visit in December 2021 had shown a low level of gypsum contamination.[120]In relation to the MMF monitoring, the emissions did not continuously breach WHO and EPA guidelines for 2021-2024. The data presents a more complex picture of increases and decreases, following a general downward trend from 2021-2023, with some increases in the winter months, until a spike commencing in October 2023. This spike led the EA to serve Suspension and Closure Notices in 2024. The monitoring data pointed to the EA’s actions having been effective.[121]In relation to the IP quarterly waste returns from 2021 to 2022 (included in the EA’s CN of November 2024), the Defendant submits that this only showed that up to 70% of the material entering the site was potentially contaminated. It represented risk rather than actual contamination. It was merely a reflection of the fact that the type of waste that was being deposited at the site was of one where gypsum contamination was likely. Therefore, this data did not point to a specific breach of regulatory control.[122]In relation to the Waste Producers Audit and Site Audits:a. The Waste Producers Audit focused on a review of the waste transfer sites rather than the Landfill Site. It did not provide a sufficient evidential basis that there were significant quantities of contaminated material being brought onto the Site.b. The CAR from Site Audit 1 used language of “reasonable foreseeability”. It spoke to risk and possibility, not demonstrable facts or evidence.c. Site Audit 2 also did not disclose or evidence that the waste being accepted on the Site was in fact contaminated with gypsum or other high-sulphate-bearing waste to such an extent as to be the cause of the intermittent periods of heightened H₂S emissions.[123]The DEFRA report in November 2022 endorsed the EA’s approach. The report made positive findings about the progress made on capping and gas treatment, and found that, in relation to whether the emissions were caused by historic or fresh waste, “there was no direct evidence to support the second hypothesis” and “it is not currently possible to determine which may be the more dominant”.[124]Ms Prince’s evidence was of limited relevance, because it was not directly concerned with any issue of sulphate-bearing waste, and the EA was cooperating well with this operator in the relevant period.[125]In relation to the “Contain, Capture and Destroy’” strategy, whilst the underlying strategy remained the same through each of the periodic reviews, the steps required to implement it did not. Across the period the EA responded appropriately to the evidence that emerged from its regulatory oversight. Moreover, the strategy was endorsed in the DEFRA report in November 2022.[126]Throughout the period, the EA was also requiring the IP to undertake a significant number of other steps to manage the H₂S emissions from the site, including increasing the amount of permanent and temporary capping, and making improvements to gas and leachate management infrastructure. It appeared to the EA at the time that those steps were working.[127]Overall, the EA points to the very large amount of regulatory action that was undertaken, and the targeted approach of CARs requiring specific steps to be taken.[128]It was not until December 2023 that the EA thought that there was a real prospect (as distinct from a mere possibility) that the deterioration in conditions with regards to H₂S emissions on the Site could be attributable to fresh waste rather than historical deposits, given(1) the extent of capping and other gas infrastructure which had been installed;(2) the reversal of the general decline in the H₂S concentration in the landfill gas going to the gas utilisation plant; and(3) the results of emissions surveys identifying fugitive H₂S emissions from sources on the operational surface of the Site. This, combined with the advice of UKHSA in January 2025, led to the Suspension Notice in March 2024, and ultimately the closure of the site in November 2024.

Conclusions

[129]The Claimant alleges a breach of the positive obligations pursuant to Articles 2 and 8 ECHR between January 2022 and November 2024, when the CN was served.[130]The test for whether the positive obligation under Article 2 is triggered was set out by the Court of Appeal in Richards (1). The authority must know of a real and immediate risk to life, see [12]. Although the ECtHR authorities show that there is no clear “bright line” between obligations under Articles 2 and 8, there must be a distinction. This is both because Article 2 concerning the right to life must involve more serious cases where there is evidence of a real and immediate risk to life, but also because Article 8 is a qualified right, where proportionality applies, whereas Article 2 is not. This necessarily becomes a difficult distinction to apply when it comes to positive obligations, because they will always to some degree be subject to questions of “due diligence” and therefore proportionality. However, there remains the need for a principled distinction between when the obligations arise.[131]That distinction between the Articles lies behind the requirement to show a real and immediate risk to life. I accept that a diminution of life expectancy could, in extreme cases, amount to the engagement of the positive obligation under Article 2. A real and immediate risk to life could be characterised as an immediate and extreme diminution of life expectancy. However, such an impact on life expectancy would have to be at the most serious end of any spectrum.[132]In my view the facts of the Claimant’s case do not cross that Article 2 threshold. The facts relating to the Claimant suggest that the impacts upon him, although serious, did not, at least by the time period relevant to this claim, engage Article 2. At 3.3.2 of the Addendum Report 2025, Dr Sinha said, “Mathew’s clinical history demonstrates clear temporal patterns. His symptoms worsen in proximity to the landfill and improve when he is away from it”. He noted that the Claimant had experienced fewer infections and hospital admissions since the first report in 2021, which could be explained by the fact that(i) the Claimant’s new school was several miles away from Silverdale;(ii) the Claimant was older;(iii) the Claimant was taking higher doses of medication;(iv) the Claimant lived further away from WQL. By March 2023, he was living 1.3 miles from the Site, rather than 200-400 metres away, meaning the level of impact was materially lessened.[133]Dr Sinha’s evidence points to a very real impact on the Claimant’s health, and to a probable impact on his life expectancy. However, the 2025 Addendum Report does not indicate any “immediate” risk to life, but rather a longer term impact on quality of life and life expectancy. Putting together the original report, considered by Fordham J, and the Addendum Report, it appears that the Claimant’s lungs were very seriously impacted by the early exposure, but the ongoing exposure after “early childhood” does not, on a fair reading of the reports, show a real and immediate risk to life. Dr Sinha says in the Addendum Report; “Mathew’s life expectancy remains shortened due to ongoing exposure to pollution from Walleys Quarry. His failure to achieve catch-up lung growth, demonstrated by his reduced lung function, keeps him on a trajectory to develop COPD at an early age… Although the major structural injury has already occurred, continued exposure to airborne pollutants from Walleys Quarry would accelerate his lung function decline, worsening his long-term prognosis, and reducing his life expectancy.”[134]I do not in any way wish to minimise the impact of the Site emissions over the period in question on the Claimant’s quality of life and health, but it is important to maintain the distinctions between the duties that arise under different Articles in the ECHR. The Claimant’s case does not reach the threshold for engagement of Article 2 positive obligations as explained in Rabone and Richards (1). I appreciate that I am, to some degree, disagreeing with the conclusion reached by Fordham J, that was not expressly overruled by the Court of Appeal. However, I have Dr Sinha’s Addendum Report, the factual changes since 2021, and the legal tests set out by the Court of Appeal.[135]For these reasons I find that the positive obligation under Article 2 was not triggered in respect of the Claimant in the period from January 2022 until the closure of the Site in November 2024.[136]There is no dispute that the EA’s positive obligations under Article 8 were engaged in the regulation of the Site. The impact on the Claimant’s (and many others’) private life is manifest. The number of complaints about this Site over a prolonged period is extremely striking. The figures of complaints, breaches of licence conditions, and the EA resources committed to the Site, all suggest that this was the most problematic Landfill Site in England. This was the only Landfill Site which fell within Band F (more than 150 non-compliance points) in every year between 2021-24. It also had by far the highest number of complaints of any site in England.[137]The test under Article 8 is whether the authorities, here the EA, have acted with due diligence, whilst ensuring that the Court respects the role of the regulator in choosing the means to apply and does not impose a disproportionate burden. In applying that test the effectiveness of the action that was taken is material. This is apparent from a number of the Strasbourg authorities, including Stoicescu and Kapa. The degree to which the efforts or diligence of the regulator is effective will necessarily go to whether or not those efforts amounted to “due” or sufficient diligence. However, there is no simple linear relationship between the fact that the regulatory efforts were ineffective, as was the case here by the summer of 2024, and there necessarily being a breach of Article 8.[138]In determining whether there was a breach of Article 8, some assistance can be drawn from applying the tests set out in in Bank Mellat v HM Treasury(No 2) [2014] AC 700 (at [20] (Lord Sumption JSC) and [74] (Lord Reed JSC)), on whether the requirements of proportionality under Article 8 have been met. There are four questions to be asked: (i). Is there a sufficiently important objective which the measure pursues? (ii). Is there a rational connection between the means chosen and that objective? (iii). Are there less intrusive means available? (iv) Is there a fair balance struck between the rights of the individual and the general interests of the community?[139]In deciding whether the EA has acted with due diligence it is, in my view, relevant to consider whether if the EA had taken more draconian action against the IP there would have been a valid argument that less intrusive means should have been employed; and whether a fair balance has been struck between the interests of the local residents, those of the operator, and the resource implications for the EA in terms of its overall regulatory functions.[140]Further, the determination of whether the EA acted with due diligence has to be applied to the evidence available to the EA at the time the actions were taken, rather than with the benefit of hindsight. That is, in my view, critical in this case. With the benefit of hindsight, it is apparent that the IP was (certainly by 2023/4) bringing large amounts of contaminated material onto the Site and was, in all likelihood, deliberately avoiding regulatory control, and that this new material was a primary cause of the emissions. The issue for the purpose of determining whether there was a breach of Article 8 is the degree to which the EA knew or ought to have realised the relationship between the breaches of regulatory control and the cause of the emissions, and therefore whether they acted with due diligence at the relevant times.[141]In my view, throughout the relevant period the EA knew or ought to have known that it was likely that significant quantities of waste contaminated with gypsum were being brought onto the Site. The evidence, not least that relied upon by Mr Lewis, points inexorably to that conclusion.[142]The Waste Producers Audit in April 2022 showed that waste operators using the Site were not conducting proper screening of the material that they were sending to the Site, and that the material was, or was likely to be, contaminated. The audits in respect of JJC are set out above, and they show a series of breaches of screening procedures in the first half of 2022 and a lack of effective action by the EA. As far as I can tell from the material, there was no reason to believe that by June 2022 JJC, as but one example, had effective screening processes in place. Mr Lewis submits that that showed contaminated material at the transfer sites and not the Site itself. But once the EA knew that the producers were not screening properly, then it logically followed that contaminated material was coming onto the Site in material amounts.[143]Quite apart from that evidence, the EA knew that the very nature of the material being handled on Site was of a type where there was a significant risk of contamination.[144]Next, the EA knew that the IP did not have effective screening processes at the Site gate to ensure that if contaminated material was sent by the producers it would not be allowed onto the Site. That was apparent from the Site Audits.[145]Further, the EA had the evidence of the whistleblower that the IP was an operator that was prepared to knowingly breach regulatory control, and to work with waste producers to avoid effective scrutiny. I do not accept that the fact that the whistleblower’s evidence did not directly relate to gypsum contamination changes that conclusion. The EA was on notice of the type of operator it was dealing with and therefore the obvious risk that serious breaches were occurring.[146]In terms of considering due diligence by the EA, there is no doubt that they put a great deal of regulatory resource into this Site. The evidence of Mr Hitchings suggests that a very significant proportion of enforcement and regulatory assets held by the EA in the relevant region were devoted to actions concerning the Site. In terms of the proportionality of the effort and resources devoted to the Site, I do not think the EA can be criticised.[147]Under both Grounds, the issue comes down to whether the lack of effectiveness, in other words the fact that by 2024 the emissions were little better than they had been in 2021, meant that the EA had failed to meet their positive obligation under Article 8(2). There are, in effect, two parts to the EA’s defence.[148]Firstly, Mr Lewis submits that the EA had good reason to believe that the actions it was taking, in terms of improving the capping and management of the Site, were being largely effective. This led them to believe that it was existing contamination on the Site that was the principal reason for the ongoing emissions problems. Having examined the monitoring results, the heat maps, and the overall state of knowledge, I consider this to have been a reasonable conclusion. The monitoring showed considerable improvements in terms of emissions until they spiked again in the winter of 2023/24. The heat maps, as I have explained above, seemed to indicate that the primary problem was not in the area of new deposits, again until the winter of 2023/24.[149]In my view the EA can be criticised for being too focused on there being one principal reason for the emissions and not taking more robust action in respect of new material. However, in circumstances where there was evidence suggesting that capping was being reasonably effective in reducing fugitive emissions, their actions were not unreasonable.[150]Although I am sure that from the residents’ perspective the time involved must have seemed interminable, if one judges the time periods in this case against those cases where the ECtHR has found a breach of Article 8, the delay in taking effective action here was significantly less. The Court of Appeal ruled in Richards (1) in January 2022, and the CN was ultimately served in November 2024. In that period the EA took multiple actions and in the period leading up to the summer of 2023 those actions appeared to have significantly improved the situation.[151]In respect of Ground One, it is particularly important not to judge the EA’s actions with the benefit of hindsight. It is now apparent that new contaminated material was being brought onto the Site, probably in large quantities, certainly by 2023. But during the period 2021-23 that was not apparent from the limited sampling that was done, and the evidence pointed to the primary cause being emissions from existing waste.[152]In respect of Ground Two, the failure to ensure proper capping of the Site, the EA took many regulatory steps to try to ensure that this was done. One might criticise, particularly with the benefit of hindsight, the focus of some of their efforts, but within the parameters of Article 8(2) they acted with due diligence.[153]With the benefit of hindsight it is easy to see that the EA should have moved more quickly to close the Site, to stop new material entering and to force the IP to properly cap. However, the duty on the EA was to act proportionately. On the evidence that they had before 2023 there was a significant risk that if they had served a CN, or taken other steps, to absolutely stop new material coming on Site, they would not have been successful on appeal. Applying Bank Mellat, the IP would inevitably have argued that there were less intrusive means open to the regulator and might well have been successful on the evidence.[154]For all those reasons I do not find that there has been a breach of Article 8(2) by the EA through the relevant period.[155]In terms of the declaration of on-going duties under Article 2, I do not consider it appropriate to grant such a declaration. Annex (see paragraph 24) Month