Air Pollution

September 16th, 2021 by James Goudie KC

A local authority must not act in a way which contributes indirectly towards, or facilitates, a breach of ECHR Article 8 rights, for example by providing land for or subsidising a pollution causing waste disposal or other plant: Lopez Ostra v Spain (1994) 20 EHRR 277.  A local authority may be liable for inaction, or insufficiently speedy and robust action, against polluters and the perpetrators of nuisance, or for the environmental consequences of development which the authority provides under economic development powers, or which the authority permits, as landowner, or as planning or licensing authority.  There may be positive obligations under Article 8 and fair balances have to be struck.

In R (Richards) v Environment Agency (2021) EWHC 2501 (Admin) Fordham J. considered key Strasbourg case law following Lopez Ostra and, at para 42, set out the following propositions derived from them:-

(1)   General. (1a) In the context of dangerous industrial activities the scope of the positive obligations under Article 2 largely overlaps with those under Article 8. (1b) The responsibility of the state authorities in environmental cases may arise from a failure to regulate private industry. (2) Article 8. (2a) Severe environmental pollution affecting an individual’s well-being and adversely affecting private and family life can trigger a positive obligation on the state authorities pursuant to Article 8 to take reasonable and appropriate measure to secure rights to private life. (2b) The positive obligation under Article 8 is triggered only if there is a direct effect on the applicant’s home, family life or private life, and only if the adverse effects of environmental pollution attain a minimum level, which level depends on all the circumstances such as intensity, duration, physical and mental effects.  (2c) Where triggered, the Article 8 positive obligation on the state authorities is to take reasonable and appropriate measures to secure rights to private and family life, striking a fair balance between the interests of the individual and of the community as a whole. (2d) The Court had the task assessing whether state authorities could reasonably be expected to act. (2e) The Court also has the jurisdiction to assess whether the state authorities approach the problem with due diligence and gave consideration to all the competing interests. (2f) The Court does not substitute its view as to the best policy to adopt in a difficult technical and social sphere. (3) Article 2. (3a) Article 2 lays down a positive obligation on state authorities (the safeguarding obligation): to take appropriate steps to safeguard the lives of those within the state’s jurisdiction. (3b) The safeguarding obligation entails above all a primary duty (the “framework duty”) to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. (3c) The safeguarding obligation applies to activities, whether public or not in which the right to life may be at stake, including industrial activities which by their very nature are dangerous and in the particular context of dangerous activities: special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives; these must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks; among which preventive measure particular emphasis should be placed on the public’s right to information.  (3d)  The safeguarding obligation may entail a positive obligation to impose particular practical measures (the operational duty), in which situation; there may be a choice of means and the positive duty may be capable of fulfilment by alternative means;  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, in difficult social and technical spheres. (3e) In assessing whether the state authorities have 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; the scope of the positive obligations imputable to the state authorities in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation.


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