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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Clear the Air in Havering, R (On the Application Of) v London Borough of Havering [2025] EWHC 1492 (Admin) (17 June 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/1492.html
Cite as: [2025] EWHC 1492 (Admin)

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Neutral Citation Number: [2025] EWHC 1492 (Admin)
Case No: AC-2024-LON-003340

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
17/06/2025

B e f o r e :

MRS JUSTICE LIEVEN
____________________

Between:
THE KING (on the application of)
CLEAR THE AIR IN HAVERING
Claimant
- and -

THE LONDON BOROUGH OF HAVERING
Defendant
- and -

DMC SERVICES (ESSEX) LIMITED
Interested Party

____________________

Dr David Wolfe KC and Ms Margherita Cornaglia (instructed by Mishcon de Reya LLP) for the Claimant
Mr Meyric Lewis KC and Mr Brendan Brett (instructed by London Borough of Havering) for the Defendant
Mr David Hart KC (instructed by Gunnercooke LLP) for the Interested Party

Hearing dates: 18 & 19 March 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.30am on 17 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
    .............................
    MRS JUSTICE LIEVEN

    Mrs Justice Lieven DBE :

  1. This is an application for judicial review of the decision of the Defendant ("the Decision"), the London Borough of Havering ("the LA"), on 12 July 2024 not to identify land at Arnolds Field, Launders Lane ("the Site") as contaminated land within the meaning of Part 2A of the Environmental Protection Act 1990 ("EPA"). The Claimant is a group of local residents concerned about clean air in Havering. The Interested Party ("IP") is the owner of the Site.
  2. The Claimant is represented by Dr David Wolfe KC and Margherita Cornaglia, the LA is represented by Meyric Lewis KC and Brendan Brett, and the IP is represented by David Hart KC.
  3. Background

  4. The Site is 15 ha. It is situated with residential buildings about 400m away. The Site has posed problems for many years and has a very significant planning history.
  5. The Site was previously in lawful use for sand and gravel extraction and then as a landfill site. In 1999 planning permission was granted for development comprising "land raising to improve agricultural quality". In 2000 further planning permission was granted to change the end use of the then current permission from agriculture to woodland. Condition 1 of that permission required restoration to be carried out in accordance with submitted details, including as to the levels and contouring of the Site.
  6. In 2004 a Stop Notice and two Enforcement Notices were served in respect of the further deposition of waste and materials onto the Site in breach of the 2000 planning permission. An appeal was dismissed. The Enforcement Notices were upheld but have never been complied with. Further unlawful tipping took place between 2011 and 2016, which resulted in the Environment Agency ("EA") bringing prosecutions.
  7. The IP bought the land in 2017. From at least 2018 there have been fires on the Site to which the Fire Brigade have been called. Those fires produce smoke (according to the Claimant, large plumes of black smoke) which affects homes, a school and a golf course close to the Site. The Fire Brigade were called 134 times in 2022, of which 70 were false alarms, meaning there were 64 fires within a 12 month period. It can be seen from these figures that there is no doubt that the Site is a very significant problem for local residents, the LA and other statutory agencies.
  8. The LA has submitted evidence from Mr Richardson, a senior public protection officer of the LA; Mr Thelwell, the head of strategic development; and Mr Ansell, the director of public health. It appears from that evidence that Mr Richardson was critical in the decision making on what action should be taken in relation to the Site. As I explain below, I allowed a late witness statement from Mr Harding of TRL Ltd ("TRL") to explain the monitoring that the company had undertaken.
  9. Mr Ansell says that in 2022 he, on behalf of the LA, instigated an expert technical group to bring together relevant authorities and expertise to address the problems posed by the Site. The group included the LA's public health, public protection, and communications officers, the UK Health Security Agency ("UKHSA"), the EA, Imperial College London, University College London, the Greater London Authority, the London Fire Brigade ("LFB"), and representatives of residents.
  10. The LA and/or the technical group commissioned a number of studies and investigations into the Site and its effects.
  11. The Environmental Research Group at Imperial College London ("ERG") undertook air quality monitoring relating to the Site. They operate hourly monitoring of nitrogen dioxide and PM2.5 (a particular size of particulate matter) in the air across London in a project called "Breathe London". The results are available in real time on a website. At the LA's request, the ERG installed additional monitoring 'nodes' in the vicinity of the Site. This data provides updates to the public about the outcomes of that monitoring in order to help residents understand the air quality in the area. The LA provides a "Launders Lane Air Quality Dashboard", a dedicated website where the public can see the results of Breathe London air monitoring at the locations most pertinent for the Site.
  12. In May 2023 Geo-Environmental Services Limited ("GESL"), a specialist environmental consultant, was commissioned to undertake an on-site contamination assessment for the Site. GESL reported in December 2023 ("the GESL Report"). The GESL Report comprised (i) a desktop review, including an assessment of potential source-pathway-receptor linkages and the development of a "conceptual model" based on the current site use (ii) intrusive investigations on the Site; and (iii) geochemical laboratory testing of recovered soils and waters.
  13. GESL summarised its findings in a presentation given to a public meeting on 24 November 2023, attended by the LA, as follows:
  14. i. There were unsafe levels of arsenic, lead, benzo(b)fluoranthene, benzo(a)pyrene, and dibenzo(ah)anthracene in the soil samples recovered from the Site. Where these are at depth, there is low risk; but where these are near or on the surface then risk can be reduced by minimising contact with the soil.
    ii. Gas monitoring showed the presence of methane, carbon dioxide, hydrogen sulphide, carbon monoxide, and volatile organic compounds ("VOCs"). The personal gas monitors of the GESL operatives were not however triggered whilst they were on the Site. The risk to off-site receptors was low given the low flow of gases, but pockets of methane could potentially exacerbate or sustain fires within the waste on the Site.
    iii. Some evidence of contaminants leaching into water was noted, but this was likely to be in isolated pockets of 'perched' rainwater and no evidence of a continuous water body was found within the waste materials. The Common Watercourse adjacent to the Site could not be accessed for testing, but GESL undertook water sampling of installed boreholes on the Site.
    iv. There was evidence of loose asbestos fibres – reassurance air monitoring was recommended to ensure these are not escaping from the Site.
    v. The primary way that any risk from contaminants on the Site could be managed would be to prevent access to the Site "thereby breaking the source-pathway-receptor for exposure to the contaminants on site".
    vi. GESL advised that the risk from smoke from fires on the site "represents a health and safety concern associated with the smoke itself and any potential for particulates to be present/migrating as opposed to a contaminated land issue".
  15. In October 2022, the LA tendered for specialists to provide enhanced monitoring and assessment to identify whether the particulate matter in the air near the Site contained specific substances of concern emanating from the Site. TRL (a consultancy) were appointed to do the work.
  16. In the initial report in October 2022 TRL said their intention was to start work in May 2023 so that they were in place to monitor over the three hottest months "when fires are more likely and increasing the chances of directly measuring one or more occurrences", see para 3.4 of the report.
  17. The LA has also obtained disaggregated medical data from North London Integrated Care Board, a local NHS organ, to enable it to study whether residents around the Site were more likely to present with respiratory problems during or immediately after fires. The first tranche of that data was received on 11 December 2023, but the results from the research that was commissioned were not available at the time of the Decision. In addition, the LA requested the National Disease Registration Service to consider the prevalence of particular forms of cancer in local populations.
  18. TRL produced a report in April 2024, which is headed "Launders Lane Interim Air Quality Monitoring report May-December 2023". The Interim Executive Summary states:
  19. "This interim report summarises the air quality monitoring being undertaken by TRL Ltd around the Launders Lane site in Havering, from 18th May 2023 to the end of December 2023. The aim of this project is to understand the potential levels of airborne pollution associated with the uncontrolled burning of materials at Launders Lane, and to get an idea of the ambient levels of airborne pollution without any fires. The pollutants being monitored are Volatile Organic Compounds (VOCS), Poly Aromatic Hydrocarbons (PAHs), Polychlorinated Biphenyls (PCBs) and Heavy Metals (Mercury and Lead). Wind speed and direction are also being recorded.
    Nothing measured to date indicates that any recommended limits (annual mean thresholds), where they are available, are likely to be exceeded or give any cause for concern.
    It is recommended that on-site monitoring at the Launders Lane site continues through the summer of 2024 to ensure that air pollution associated with any fires attended by the London Fire Brigade is monitored."
  20. At section 7 TRL set out their interim conclusions:
  21. "7 Interim Conclusions
    This interim report has been prepared to provide an update on the air quality monitoring that has been undertaken by TRL at the Launders Lane site between August 2023 and December 2023.
    As of the end of December 2023, the majority of measurements recorded at the TRL Launders Lane air quality monitoring locations are below any available national and WHO annual objectives. Where a few of the monthly readings exceed the national annual mean objective, it is likely that once 12 months of data is available, the average of 12 months data will fall below the objective. It's important to be aware that currently there is not enough data available to enable meaningful comparisons with national annual mean objectives, as that requires 12 months of data.
    Consequently, the interim conclusions shared here will be reviewed and updated once 12 month's worth of data is available and comparisons can be made against the annual mean objectives that exist for many of the pollutants being monitored.
    The main objective of this monitoring task was to gain an understanding of how the fires influence emissions from the Launders Lane site. Unfortunately, the monitoring equipment only came online in August 2023 so missed recording the majority of fires that occurred last year (2023). For this reason, it is recommended that AQ monitoring is continued throughout the summer of 2024. This is likely to provide further opportunities to measure if and how the fires influence the air quality in the area."
    [emphasis added]
  22. Unsurprisingly Dr Wolfe placed a great deal of reliance on this paragraph for his submission that the LA had made a premature decision on whether the land was contaminated. Mr Lewis told me on instruction that the interim conclusion was written in error and in fact TRL had carried out monitoring before August 2023. In the light of the fact that TRL's own report said that of the 15 recorded fires in 2023, 12 had taken place in August, I permitted the LA to put in a late witness statement from TRL explaining the position.
  23. In December 2023 GESL produced a report in which they carefully considered potential pathways and found no contamination pathway on the Site. However, they say at p.44: "It should be noted that the risk from smoke associated with fires on the site represents a health and safety concern associated with the smoke itself and any potential for particulates to be present/migrating as opposed to a contaminated land issue".
  24. In their report under the heading "Status under Part 2A" at para 8.1 of the report GESL say:
  25. "It is considered that the overall risk of the site (when not on fire) in relation to a number of the source pathway receptor (SPR) linkages identified could be reduced be securing the site, thereby removing unauthorised access on the site.
    However, further consideration is required in relation to the SPR linkages associated with the fires on the site, both during fires and of any impacts following fires.
    In addition, there are areas where a significant risk of significant harm has not currently been identified but that improvements or limited works on site such as reprofiling and installation of capping across the exposed waste materials, resulting in a reduction of infiltration through the site may also serve to offering a reduction in overall risk."
    [emphasis added]
  26. The detail of the monitoring is dealt with below at [84-89].
  27. Between 13 February and 25 April 2024 there are a series of emails between Ms Legate of GESL and Mr Richardson wherein Mr Richardson is seeking advice on the contaminated land issue. On 13 February he asks:
  28. "On a related note, I've been asked to look at the "significant risk of significant harm" factor for declaring Launders Lane as Contaminated Land under Part 2A, and to request your view on it. Having read the report again, I'm of the opinion that it doesn't meet the threshold, primarily due to the lack of source-pathway-receptor, unless people are trespassing on the site. Therefore the "significant risk" part of the definition is not met. The question over "significant harm" is still to be addressed, as there are some values higher than the guideline values, and I would be grateful if you could advise if this meets the "significant harm" threshold."
  29. Ms Legate says in reply "…. When we discussed it initially when we were writing the report I think our view was that the site itself didn't present significant harm, it was the fires that introduced the higher risk of harm. I'll come back to you on this one".
  30. Mr Richardson then asks for Ms Legate's "official view" on whether the site is or is not contaminated land.
  31. On 25 April Ms Legate replies:
  32. "It is the fires that introduce the higher risk of harm to human health in terms of transport of contaminants and air quality and a determination of whether that is significant in terms of risk to human health would need consultation with the air quality experts who have been doing monitoring on and in the vicinity of the site and the further assessment of risk with respect to airborne release of contaminants and asbestos. I am not sure if any airborne monitoring has been done on site with respect to asbestos since our investigation works on site, or what steps/further works have been undertaken since the last public meetings in terms of air quality.
    The remediation measures presented in the works we have undertaken are driven by the need to reduce/stop the fires on site, as such this is the key risk driver in terms of determining significance from our perspective."
  33. Later on the same day Mr Richardson responds as follows:
  34. "Thanks for the update. Our monitoring to date (which is primarily around the air quality) doesn't show any particular elevated risk, but then there has not been any fires so far this year so we are currently measuring a baseline. Asbestos monitoring is in the process of being commissioned, and I am hopeful that will be sorted by the end of next month.
    If I've got this fully understood, from the report you provided, the risk of harm is mostly to do with the release of "contaminants" from fires, not the risk of dermal contact (which is significantly minimised if the site is secured from unauthorised access) or from contamination of the watercourse adjacent to the site. I do appreciate that the conceptual model has a high risk from inhalation to the current users if they are on site when a fire is occurring, and also for ground gasses to end users… assuming that the site is redeveloped in some manner. Otherwise, the other risks are very low-moderate, and I am happy that, considering the current use of the land, are not significant.
    As such, we are minded not to declare the site as Contaminated Land (under Part 2A) as the site is not open land to the public, nor is it easily accessible (unlike a park which is the guidelines you've assessed the site under). Therefore, the possibility of people coming into physical contact with the soil is low. Whilst the recommendations within the report indicate that securing the site, capping and venting will further reduce the risk from future fires and prevent unauthorised access, there is currently no evidence to suggest that the fires mobilise the contaminants to neighbouring properties (although this has the caveat that in the current monitoring period there have been no fires of significance since last summer, so the air quality monitoring has not picked up anything untoward).
    We are, therefore, dealing with the matter under the statutory nuisance/community protection notice regimes, as we are serving an abatement notice on the landowner (for the fires) and a Community Protection Warning to require him to secure the site, and take all reasonable steps to prevent further fires. This will address the recommendations regarding the unauthorised access and also steps to take regarding preventing the fires, though not through the Part 2A regime. Obviously, if further evidence comes to light with regard to the SPOSH and the increase of the risk/possibility of significant harm, we are reserving the right to take action under Part 2A."
    [emphasis added]
  35. This email is in my view important because it is the clearest evidence of Mr Richardson's, and therefore the LA's, reasoning at the time they made the decision under challenge.
  36. The LA made the decision not to designate the Site as contaminated land on 25 April 2024, although the public were not informed until 12 July 2024. I will set out the contents of the decision below. On the same day, the LA issued an Abatement Notice under s.79 EPA, i.e. the statutory nuisance regime.
  37. On 15 May 2024 the IP appealed the Abatement Notice. Ground E of the appeal was that: "It is clear that the site is in a contaminated state". The IP then refers to s.79(1A) EPA. They then state: "The fires arising on this [sic] are clearly caused by the land being in a contaminated state, so it is not accepted that this is a nuisance under the EPA. This Notice is therefore invalid".
  38. On 12 July 2024 the LA informed the public via its website that it had decided not to designate the land as contaminated land. The notification on the website, which for these purposes I will treat as the LA's published reasons, states as follows:
  39. "1. The Council has carefully considered the content of the Contaminated Land report, and found that the only possible significant risk of harm from the site is the potential risk of contaminants from fires, which the TRL and other air quality monitoring is assessing (read more on this below).
    2. Land is declared as "Contaminated Land" under Part 2A of the Environmental Protection Act 1990, and must present a 'Significant Possibility of Significant Harm (SPOSH)' to human health. This is primarily through skin contact, the uptake in any vegetables or plants grown on the site for consumption, or contamination of the local watercourse.
    3. The report makes it clear that there is a high risk from inhalation to anyone who is directly on the site when a fire is occurring, and also for ground gases to affect anyone using the site in future, if it is redeveloped for housing or industrial use. Otherwise, the other risks are very low-moderate and, considering the current use of the land, are not significant.
    4. As such, the Council has decided that the site is not formally designated as Contaminated Land (under Part 2A), as the site is not open to the public, nor is it easily accessible. Therefore, the possibility of people coming into physical contact with the soil and/or gases is low.
    5. Whilst the recommendations within the report indicate that securing the site, capping and venting will further reduce the risk from future fires and prevent unauthorised access, there is currently no evidence to suggest that the fires significantly spread contaminants to neighbouring properties.
    6. Although it should be noted that whilst the current monitoring has been in place, there has not been a large number of fires since last summer, so the air quality monitoring has not picked up anything outside of the normal levels for the area.
    7. As such, the Council is dealing with the matter under the statutory nuisance/community protection notice regimes (as listed above). However, if further evidence comes to light with regard to the SPOSH and the increase of the risk/possibility of significant harm, we are reserving the right to take action under Part 2A.
    8. A further study is being commissioned to assess the risk of asbestos fibres escaping from the site, which we will openly share all the outcomes of. As our consultants said at the previous public meeting in November it would be highly unlikely for any fibres to be emitted from the site provided any asbestos present is not disturbed.
    9. However, as stated at the meeting we want to be sure of this and establish whether the presence of fires has any impact on this."
    [I have added the paragraph numbers for the purposes of clarity]
  40. On 20 August 2024 the LA revoked the Abatement Notice and has taken no further legal action in respect of the Site. Therefore the Site is currently not being considered as contaminated land, but also no action is being taken in respect of statutory nuisance. The LA has continued to monitor the Site and further reports are expected. The IP has worked with LFB and GESL to consider practical measures that could be taken on the Site.
  41. In respect of fires on the Site, Mr Ansell says that the monitoring shows an increase in particulate air pollution on many of the days that the LFB reported attending a fire at the Site. He says that the fires cause large but short-lived peaks in particulate air pollution at the individual monitoring sites, depending on the precise location of the fire, the strength and direction of the wind and the speed with which it is extinguished.
  42. The judicial review was commenced on 10 October 2024. Permission was granted by Mrs Justice Lang on 21 November 2024.
  43. The Legal Framework

  44. Part 2A of the EPA governs the designation and management of contaminated land.
  45. S.78A(2) defines contaminated land as:
  46. "78A Preliminary
    …
    (2) "Contaminated land" is any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that—
    (a) significant harm is being caused or there is a significant possibility of such harm being caused; or
    (b) significant pollution of controlled waters is being caused or there is a significant possibility of such pollution being caused;
    and, in determining whether any land appears to be such land, a local authority shall, subject to subsection (5) below, act in accordance with guidance issued by the Secretary of State in accordance with section 78YA below with respect to the manner in which that determination is to be made."
    …
    (4) "Harm" means harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property.
    (5) The questions—
    (a) what harm or pollution of controlled waters is to be regarded as "significant",
    (b) whether the possibility of significant harm or of significant pollution of controlled waters being caused is "significant",
    shall be determined in accordance with guidance issued for the purpose by the Secretary of State in accordance with section 78YA below."
  47. By s.78B EPA, local authorities are under a statutory duty to inspect their areas for the purposes of identifying contaminated land, and in carrying out that duty they should act "in accordance" with guidance issued under s.78YA EPA. If the local authority identifies contaminated land, it is required to notify certain persons, identified in s.78B(3) EPA.
  48. Having identified land as contaminated, s.78E requires the local authority to serve a remediation notice, specifying the steps which it considers reasonable to be taken for the remediation of the land, having regard to the cost and severity of the risk posed by the contamination. In doing, the local authority is required to "have regard" to any s.78YA guidance. The person or persons on whom such a notice or notices should be served is determined by the application of s.78F.
  49. Accordingly (as the parties agree) Parliament has decided that the identification of land as contaminated land should be wholly a matter for the Defendant's judgement, acting in accordance with the EPA and any guidance issued under s.78YA EPA.
  50. S.78YA provides for the Secretary of State to produce Guidance which shall be laid before Parliament in a negative resolution procedure.
  51. S.79 covers statutory nuisances. The following provisions are the most relevant:
  52. "79 Statutory nuisances and inspections therefor.
    (1) Subject to subsections (1A) to (6A) below], the following matters constitute "statutory nuisances" for the purposes of this Part, that is to say—
    (a) …
    (b) smoke emitted from premises so as to be prejudicial to health or a nuisance;
    …
    (1A) No matter shall constitute a statutory nuisance to the extent that it consists of, or is caused by, any land being in a contaminated state.
    (1B) Land is in a "contaminated state" for the purposes of subsection (1A) above if, and only if, it is in such a condition, by reason of substances in, on or under the land, that—
    (a) harm is being caused or there is a possibility of harm being caused; or
    (b) pollution of controlled waters is being, or is likely to be, caused;
    and in this subsection "harm", "pollution of controlled waters" and "substance" have the same meaning as in Part IIA of this Act."
    …
    "80 Summary proceedings for statutory nuisances.
    …
    (2A) Where a local authority is satisfied that a statutory nuisance falling within paragraph (g) of section 79(1) above exists, or is likely to occur or recur, in the area of the authority, the authority shall—
    (a) serve an abatement notice in respect of the nuisance in accordance with subsections (1) and (2) above; or
    (b) take such other steps as it thinks appropriate for the purpose of persuading the appropriate person to abate the nuisance or prohibit or restrict its occurrence or recurrence."

    The Statutory Guidance

  53. The Secretary of State has issued guidance under s.78YA EPA dated April 2012 ("Statutory Guidance"). It can be seen from the provisions set out above that there is a statutory duty to apply this Guidance, and that it has been subject to Parliamentary scrutiny. It therefore is in practice mandatory guidance. The terms of the Guidance are central to the Claimant's case.
  54. The Guidance explains that:
  55. a. The statutory scheme for contaminated land should only be used "where no appropriate alternative solution exists" to deal with issues raised in a particular case [para 1.5];
    b. Land should only be identified as contaminated land "where unacceptable risks are clearly identified, after a risk assessment has been undertaken in accordance with" the Statutory Guidance [para 1.3];
    c. "The authority should take a precautionary approach to the risks raised by contamination, whilst avoiding a disproportionate approach given the circumstances of each case" [para 1.6];
    d. "The local authority should carry out any intrusive investigation in accordance with appropriate good practice technical procedures for such investigations." [para 2.12];
    e. "If at any stage the local authority considers, on the basis of information obtained from inspection activities, that there is no longer a reasonable possibility that a significant contaminant linkage exists on the land, the authority should not carry out any further inspection in relation to that linkage." [para 2.13].
  56. Section 3 deals with "Risk Assessment". In respect of "current use":
  57. "3.5 "Under Part 2A, risks should be considered only in relation to the current use of the land. For the purposes of this Guidance the "current use means:
    a) The use which is being made of the land currently
    b) Reasonable likely future uses of the land that would not require a new or amended grant of planning permission.
    c) Any temporary use to which the land is put, or is likely to be put, from time to time within the bounds of current planning permission.
    d) …
    3.6 In assessing risks the local authority should disregard any receptors which are not likely to be present given the current use of the land or other land which might be affected." [paras 3.5(a)(b)(c) and 3.6];…"
  58. On "contaminant linkages" para 3.8 and 3.9 are critical to Ground 3(a):
  59. "3.8 Under Part 2A, for a relevant risk to exist there needs to be one or more contaminant pathway-receptor linkages – "contaminant linkage" – by which a relevant receptor might be affected by the contaminants in question. In other words, for a risk to exist there must be contaminants present in, on or under the land in a form and quantity that poses a hazard, and one or more pathways by which they might significantly harm people, the environment, or property; or significantly pollute controlled waters. For the purposes of this Guidance:
    (a) A "contaminant" is a substance which is in, on or under the land and which has the potential to cause significant harm to a relevant receptor, or to cause significant pollution of controlled waters.
    (b) A "receptor" is something that could be adversely affected by a contaminant, for example a person, an organism, an ecosystem, property, or controlled waters. The various types of receptors that are relevant under the Part 2A regime are explained in later sections.
    (c) A "pathway" is a route by which a receptor is or might be affected by a contaminant.
    3.9 The term "contaminant linkage" means the relationship between a contaminant, a pathway and a receptor. All three elements of a contaminant linkage must exist in relation to particular land before the land can be considered potentially to be contaminated land under Part2A, including evidence of the actual presence of contaminants. The term "significant contaminant linkage", as used in this Guidance, means a contaminant linkage which gives rise to a level of risk sufficient to justify a piece of land being determined as contaminated land. The term "significant contaminant" means the contaminant which forms part of a significant contaminant linkage."
  60. Para 3.12 to para 3.17 deals with "the process of risk assessment". These passages are critical to the Claimant's Ground Five:
  61. "3.12 The process of risk assessment involves understanding the risks presented by land, and the associated uncertainties. In practice, this understanding is usually developed and communicated in the form of a "conceptual model". The understanding of the risks is developed through a staged approach to risk assessment, often involving a preliminary risk assessment informed by desk-based study; a site visit and walkover; a generic quantitative risk assessment; and various stages of more detailed quantitative risk assessment. The process should normally continue until it is possible for the local authority to decide: (a) that there is insufficient evidence that the land might be contaminated land to justify further inspection and assessment; and/or (b) whether or not the land is contaminated land.
    3.13 For land to proceed to the next stage of risk assessment there should be evidence that an unacceptable risk could reasonably exist. If the authority considers there is little reason to consider that the land might pose an unacceptable risk, inspection activities should stop at that point. In such cases the authority should have regard to paragraphs 5.2 – 5.4 of this Guidance.
    3.14 It may become apparent during the course of detailed inspection of land that the assumptions that led to the prioritisation of the land prove to be incorrect, and that the risks posed by the land are lower than expected. In such cases the authority should consider whether (and if so how) to proceed with its inspection, having regard to the need to prioritise inspection activities in accordance with Section 2. There may be good reason to continue until a decision can be taken on whether or not the land is contaminated land. However, as soon as it becomes clear to the authority that the land is unlikely to be contaminated land, it should bring its inspection and risk assessment to an end, and redirect its efforts to the inspection of other land in line with its approach to prioritisation.
    3.15 As a general rule, inspections should be conducted as quickly, and with as little disruption, as reasonably possible whilst ensuring that a sufficiently robust assessment is carried out. The local authority should seek to avoid or minimise the impacts of long inspections on affected persons, in particular significant disruption and stress to directly affected members of the public in the case of inspections involving residential land.
    3.16 The local authority should seek to ensure that its risk assessment is relevant to the land in question, and that it is based on risks that are reasonably likely to exist. In the course of risk assessment the authority may consider possible exposure scenarios or situations which are very unlikely to occur. However, regulatory decisions should be based on what is reasonably likely, not what is hypothetically possible.
    3.17 In undertaking risk assessments, local authorities should ensure that the time and resource put into assessment is sufficient to provide a robust basis for regulatory decisions. In some cases, there may be a need for detailed and lengthy assessments, particularly in complex cases where regulatory decisions are not straightforward. However, in other cases a less detailed and shorter assessment may be appropriate. For example, if it becomes evident early in risk assessment that there is clearly a high or low risk (to the extent that the decision on whether or not land is contaminated land is straightforward) the authority should normally take the decision on the basis of this evidence alone."
    [emphasis added]
  62. Section 4 covers the definition of contaminated land. Paras 4.3- 4.6 state:
  63. "4.3 The paragraphs below set out categories of harm that should be considered to be significant harm to human health. In all cases the harm should be directly attributable to the effects of contaminants in, on or under the land on the body(ies) of the person(s) concerned.
    4.4 Conditions for determining that land is contaminated land on the basis that significant harm is being caused would exist where: (a) the local authority has carried out an appropriate, scientific and technical assessment of all the relevant and available evidence; and (b) on the basis of that assessment, the authority is satisfied on the balance of probabilities that significant harm is being caused (i.e. that it is more likely than not that such harm is being caused) by a significant contaminant(s).
    4.5 The following health effect should always be considered to constitute significant harm to human health: death; life threatening diseases (e.g. cancers); other diseases likely to have serious impacts on health; serious injury; birth defects; and impairment of reproductive functions.
    4.6 Other health effects may be considered by the local authority to constitute significant harm. For example, a wide range of conditions may or may not constitute significant harm (alone or in combination) including: physical injury; gastrointestinal disturbances; respiratory tract effects; cardio-vascular effects; central nervous systems effects; skin ailments; effects on organs such as the liver or kidneys; or a wide range of other health impacts. In deciding whether or not a particular form of harm is significant harm, the local authority should consider the seriousness of the harm in question: including the impact on the health, and quality of life, of any person suffering the harm; and the scale of the harm. The authority should only conclude that harm is significant if it considers that treating the land as contaminated land would be in accordance with the broad objectives of the regime as described in Section 1."
  64. "[T]he decision [to identify land as contaminated land] is a positive legal test, meaning that the starting assumption should be that land does not pose a significant possibility of significant harm unless there is a reason to consider otherwise" and a "strong case" is required before the statutory scheme is invoked (para 4.25).
  65. It is the "sole responsibility" of the local authority to determine whether any land appears to be contaminated land (para 5.5).
  66. In terms of risk assessment (para 3.32):
  67. "there is unlikely to be any single "correct" conclusion on precisely what is the level of risk posed by land, and it is possible that different suitably qualified people could come to different conclusions when presented with the same information. It is for the local authority to use its judgement for form a reasonable view of what it considers the risks to be on the basis of a robust assessment of the available evidence in line with this Guidance."

    Grounds of Challenge

  68. There are five Grounds of Challenge which, to some degree, have varied over the course of the case. The summary below is taken from the Claimant's Skeleton Argument:
  69. Ground One: The Defendant's approach to the question of whether the "reasonable likely future uses of the land that would not require a new or amended grant of planning permission" would involve the public accessing the Site (per Guidance section 3.5) was unlawful (in condoning breaches of planning control and unlawfully taking into account temporary uses of the land which are not within the bounds of current planning permission).
    Ground Two: The Defendant unlawfully failed to consider whether there were health effects which may be considered to constitute significant harm under paragraph 4.6 of the Guidance (e.g., respiratory tract effects), and instead limited its assessment to health effects that are always to be considered as causing significant harm (per paragraph 4.5 of the Guidance).
    Ground Three: The Defendant's conclusion as to the risk of significant harm to human health:
    (a) Was based on a misdirection that the off-site pollution impacts of on-site fires were not a potential "contaminant linkage" for the purposes of paragraph 3.8 of the Guidance; and
    (b) Had no sufficient evidential basis and was anyway not logically based on the evidence before the Defendant (contrary to paragraph 3.4 of the Guidance).
    Ground Four: The Defendant unlawfully failed to assess risks to non-human receptors, contrary to Table 2 of the Guidance.
    Ground Five: Rather than seeking out the required evidence as mandated by paragraph 3.4 of the Guidance, the Defendant designated the Site as not contaminated and thus unlawfully:
    (a) Failed to adopt a staged approach to risk assessment (Guidance Section 3.12), and/or
    (b) Failed to apply a precautionary approach (Guidance Sections 1.6, 4.25(a), 4.46(b)).

    Ground One

  70. Ground One is that the LA misdirected itself as to the proper meaning of "the current use of the land" in para 3.5 of the Guidance. Dr Wolfe submits that the LA was wrong to take into account "temporary uses of land" which were unlawful, in the sense of being in breach of planning control. He submits that the lawful use of the land was in accordance with the 2000 planning permission for community woodland. He submits that the LA has wrongly treated the current use of the land (presumably as a landfill site) as the relevant use for the purposes of determining whether the land is contaminated land.
  71. He submits that this approach is contrary to the principle set out in Gillick (Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7) because it authorises or approves unlawful conduct. He relies upon R (A) v Secretary of State for the Home Department [2021] UKSC 37 at [38] and [41]:
  72. "38. In our view, Gillick sets out the test to be applied. It is best encapsulated in the formulation by Lord Scarman at p 182F (reading the word "permits" in the proper way as "sanction" or "positively approve") and by adapting Lord Templeman's words: does the policy in question authorise or approve unlawful conduct by those to whom it is directed? So far as the basis for intervention by a court is concerned, we respectfully consider that Lord Bridge and Lord Templeman were correct in their analysis that it is not a matter of rationality, but rather that the court will intervene when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others. In that sort of case, it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way. In this limited but important sense, public authorities have a general duty not to induce violations of the law by others."
    …
    "41. The test set out in Gillick is straightforward to apply. It calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. If the policy directs them to act in a way which contradicts the law it is unlawful. The courts are well placed to make a comparison of normative statements in the law and in the policy, as objectively construed. The test does not depend on a statistical analysis of the extent to which relevant actors might or might not fail to comply with their legal obligations: see also our judgment in BF (Eritrea)."
  73. In my view this argument is plainly and obviously wrong. The LA and the IP have made extensive submissions about the planning history and current situation on the Site, but I do not consider it necessary to go into this level of detail. In my view Dr Wolfe's submission is contrary to both the plain intent of the EPA and the Guidance, but also common sense.
  74. The purpose of the EPA Part 2A is to deal with contaminated land that impacts, inter alia, on human health. When the Guidance refers to establishing the "current use" it is plainly concerned with the impact of contamination on that use. Whether the use is permanent or temporary may be relevant because it goes to the level of exposure for the human receptor. A future use may be relevant if it is "likely" because there may be a likely future impact.
  75. The EPA is not concerned with whether the use is lawful or not. If a use was unlawful and was likely to imminently cease, whether because the LA were taking action or because of police action, then that would be relevant. But that is because it goes to the likelihood of the use continuing, not because of the lawfulness or otherwise of the use. That issue is irrelevant to the mischief that the EPA Part 2A is dealing with.
  76. The illogicality of Ground One is made clear if the situation was reversed. If there was an unlawful use of the Site which meant people were living there, but there was no reasonable likelihood of that use ceasing promptly, then that unlawful use would in my view be "the current use" for the purposes of the Guidance and assessing whether the land was contaminated. To approach the issue differently would be to rob the EPA and the contaminated land regime of its purpose, namely to protect human health.
  77. The matters being considered in Gillick and Re A were in an entirely different context, and simply have no relevance to the interpretation of paragraph 3.5 of the Guidance here.
  78. I therefore dismiss this Ground.
  79. Ground Three

  80. I deal with Ground Three(a) next because it raises a discrete issue of law as to the interpretation of the EPA and the Guidance. All the other Grounds turn on the evidence, and the information that the LA had before them.
  81. Ground Three has two limbs. Ground Three(a) is that the LA misdirected itself on what can amount to a "contaminant linkage" in para 3.8 of the Guidance. This is an issue as to the interpretation of the Guidance. Ground Three(b) is that the LA further misdirected itself on the application of the Guidance to the facts. I will deal with Ground 3(b) separately because it involves a detailed consideration of the evidence before the LA when it made its decision.
  82. Para 3.8 of the Guidance requires a contaminant linkage, with a "contaminant-pathway-receptor". It states: "for a risk to exist there must be contaminants present in, on or under the land in a form and quantity that poses a hazard, and one or more pathways by which they might significantly harm people, the environment, or property…".
  83. In my view there was very considerable confusion both within the LA, and in Mr Lewis' submissions, in relation to whether impacts on human health from the smoke emanating from the Site could lead to the land being designated as contaminated land.
  84. Mr Richardson in his witness statement at [26] says: "The Environmental Protection Act 1990 is clear that smoke nuisance, caused by combustion, is dealt with through the Statutory Nuisance regime". At [40] he says:
  85. "However it should be reiterated here that an impact on air quality is not a defined means of declaring contaminated land, and no models or authoritative or scientific methods have been approved by DEFRA, the EA, or other authoritative body to determine this (para 3.4) [in is witness statement he referred to para 4.32 but Mr Lewis said that was a mistake] of the Contaminated Land Statutory Guidance)."
  86. It appears from this witness statement that Mr Richardson's approach was that impacts of smoke emanating from the Site could not give rise to a finding of contaminated land because there was no relevant pathway or linkage that fell within the meaning of the Guidance.
  87. The same approach is taken in the decision, albeit perhaps less clearly. The focus in para 2 is on skin contact, eating vegetables on the Site, or contamination of watercourses. Para 3 refers to inhalation by someone "directly on the Site". Para 5 says there is no evidence to suggest that the "fires significantly spread contaminants to neighbouring properties". This directly raises the evidential issue as to what the air quality monitoring showed, but also appears to be focusing on "contaminants" in the sense of asbestos or specific chemical compounds, rather than the impact of the smoke itself through the spread of particulates.
  88. Dr Wolfe submits, and I agree, that the LA certainly at the date of the decision, had drawn a distinction between "contaminants" on the Site and the impact of smoke coming from the Site. The view Mr Richardson took was that if the smoke was causing impacts on human health, then that was a matter for the Statutory Nuisance regime and not for Contaminated Land designation. That is further borne out by the chain of emails set out above.
  89. Dr Wolfe submits, and I agree, that this was a misdirection. The EPA and the Guidance do not, contrary to what Mr Richardson says, make clear that smoke "nuisance" from combustion should only be dealt with as a Statutory Nuisance. S.78A defines contaminated land as where "by reason of substances in, or under the land" … "significant harm is being caused or there is a significant possibility of such harm being caused". Para 4.3 of the Guidance simply requires that the harm be "directly attributable to the effects of the contaminants".
  90. Mr Lewis, when pressed, accepted that in principle fires on the Site, which cause harm to human health off the Site, would be capable of giving rise to a finding of contaminated land. He accepted that the "contaminants" on the Site would not need to be causing harm to human health before they went on fire. He submitted, correctly in my view, that there had to be a source-pathway- linkage, so the smoke would itself have to contain contaminants that posed a significant risk to human health.
  91. The most obvious example in my view is that of plastic bottles, which are not in themselves harmful, but if burnt in an unregulated manner could lead to smoke which could cause harm to health. Mr Lewis submitted that the LA's decision was lawful because it rested on there being no finding that the fires were, or were likely, to be giving rise to smoke which did cause significant harm. The obvious problem with this submission is that the monitoring of the Site by TRL was limited in respect of the Summer 2023 fires. This is the subject of the other Grounds.
  92. Mr Lewis and Mr Hart placed heavy reliance on the fact that the Contaminated Land Exposure Assessment ("CLEA") Guidance produced by the EA does not include a model for the transportation of contaminants by way of combustion. The CLEA Guidance is an assessment model, produced as non-statutory guidance. Importantly the first page of the document has a disclaimer in the following terms:
  93. "The CLEA Guidance can help suitably qualified assessors to estimate the risk that a child or adult may be exposed to a soil concentration on a given site over a long period of exposure that may be a cause for concern to human health. The CLEA Guidance does not cover other types of risk to humans, such as fire, suffocation or explosion, or short-term and acute exposures. Nor does it cover risks to the environment or the pollution of water."
    [emphasis added]
  94. It may be that this model, and the reliance that Mr Richardson placed upon it, explains the LA's misdirection under Ground Three(a). Mr Richardson in his witness statement at [25] says:
  95. "For clarity, for the land use model (as defined under CLEA) these pathway [sic] are through the oral route (via direct soil or dust ingestion, or via the consumption of home-grown produce or soil attached to home-grown produce); the dermal route (via direct contact with contaminated soil); or by the inhalation route via dust or vapour, either indoors or outdoors. It does not include a model for the transportation of contaminants by way of combustion."
  96. CLEA therefore does not purport to deal with smoke borne contamination, even though the LA now accepts that such contamination could lead to a finding that the land was contaminated.
  97. The CLEA model does not change the proper interpretation either of the Guidance or the statutory scheme, nor does it purport to do so. Indeed CLEA makes clear that it is not seeking to deal with risk from fires. It may be that soil exposure is the most common scenario where contaminated land issues arise, but that does not mean that contamination impacted through airborne linkages falls outside the definition.
  98. Mr Hart's second argument is that Mr Richardson did consider airborne contamination, because he had considered the air quality monitoring carried out by TRL. I deal below with the factual position in respect of the TRL monitoring.
  99. However, in my view there was a misdirection by the LA, and by Mr Richardson in particular, as to whether airborne contamination, where the pathway was combustion (i.e. smoke from the fires) was capable of giving rise to the land being "contaminated land" within the Act and the Guidance. Considering the decision itself, as set out in the press release, and the course of the emails, Mr Richardson appears to have taken the approach that such airborne contamination did not fall within the scope of the Guidance.
  100. Mr Lewis now accepts that smoke can give rise to contaminated land, and in my view he is right to do so. There is nothing in the Guidance which excludes such an approach. Further, it analytically falls within the terms of para 3.8 of the Guidance where what is required is a contaminant, pathway and receptor. The contaminant here is the material on the Site. The pathway is combustion followed by airborne transmission of the particulates. It may be that the material is not harmful to human health in an inert state, but I can see no reason why the chemical reaction of combustion should be excluded as a pathway. It might often be the case that the material if dry and inert is harmless. But if, for example it becomes wet, a chemical reaction occurs and there is contamination of a watercourse. The position might be different if the fires were as a result of an intervening human action, but the evidence here is that these fires are occurring spontaneously in hot weather.
  101. I therefore conclude that the LA misdirected itself on the meaning of para 3.8 of the Guidance. Whether this error was material, or Mr Hart's second line of resistance on the evidence, depends on the analysis of the evidence set out below.
  102. The Other Grounds

  103. The other Grounds all turn on the degree to which the LA had information compliant with para 3.4 of the Guidance, i.e. that was "authoritative", "relevant to the assessment of risks" and "appropriate to inform regulatory decisions", and if they did not do so whether that rendered the decision unlawful.
  104. The outstanding Grounds are as follows:
  105. a. Ground Two is that the LA erred in respect of para 3.6 of the Guidance on human health.
    b. Ground Three(b) is that they did not have sufficient evidence to make the decision that the land was not "contaminated land" and thus the decision was premature.
    c. Ground Four is that they did not properly assess risks to non-human receptors.
    d. Ground Five is that they made a premature decision.
  106. All these Grounds turn on the information that the LA had and whether it was sufficient to meet the requirements of the Guidance, although Grounds Two and Four relate to information about specific risks.
  107. The data fell into three categories. There was the assessment of impacts on the land itself, carried out by GESL who focused on soil contamination; the assessment by TRL which primarily focused on airborne contamination emanating from the Site; and the air quality monitoring done by ERG at Imperial College on nitrogen dioxide and PM2.5 (a particular size of particulate matter).
  108. In the December 2023 GESL report as set out above, they expressly refer to the risk from smoke associated with the fires and say: "However, further consideration is required in relation to the SPR linkages associated with the fires on the site, both during fires and of any impacts following fires."
  109. It is therefore clear that GESL were not assessing the impact of smoke as a potential pathway to contamination and were of the view that further work was required in respect of this impact.
  110. TRL submitted their interim report in April 2024. They were monitoring for airborne pollutants (as explained above) and the Executive Summary states: "nothing measured to date indicates that any recommended limits (annual mean thresholds) where they are available, are likely to be exceeded or give any cause for concern". The central issue in respect of TRL, and the heart of Dr Wolfe's case on the facts, is the level of monitoring that TRL carried out and whether it was reasonable for the LA to make a decision about contaminated land on the basis of that level of monitoring.
  111. The factual position, as established from the TRL report (Table 2) and from Mr Harding's witness statement is as follows. The offsite monitoring started in May 2023 with one location at Spring Farm Park (LAL1). This location is to the west of the Site, adjacent to housing. A number of secondary sites (Tenax tubes) were installed in June 2023. The second full monitoring site, at Ingrebourne Golf Course (LAL2), was installed on 31 August 2023. Table 1 shows that in 2023 there were 15 fires, with 12 in August and one in September. It follows that the large majority of the fires were not recorded by the LAL2 site.
  112. Mr Harding says in his witness statement that this does not matter for the following reason:
  113. "11. The measurements taken at the Spring Farm site (LAL1) (starting in May) and the other 7 secondary locations using Tenex tubes (starting in June) demonstrated that the measured levels of pollution were unlikely to constitute an exceedance of any air quality objectives. These measurements will have captured the effect of fires on the site that occurred during this period (summarised in Table 1 of the Interim Report).
    12. It is unlikely that the lack of measurements from LAL2 during this period would have prevented the proper recording of the effect of any fires. This is because the recorded wind speed and direction data in Table 6 for the Spring Farm site (LAL1) also show that the average wind direction for June, July and August would have blown across the Launders Lane site (collecting any pollution) and towards the residential areas (i.e. Spring Farm Park, the neighbouring cemetery and local housing) and therefore also towards LAL1."
  114. However, unfortunately, this statement fails to engage with the content of the TRL report. At Table 6 the wind speed and direction is set out. In respect of Spring Farm Park, the wind direction in June was indeed from the South East, so blowing across the Site towards the residential areas, but there were no fires in June. In July it was from the south, so not blowing towards the LAL1 monitor. Critically, in August, when most of the fires occurred, the wind direction was from the South/South West (as is the norm in the south of England), so blowing smoke away from the LAL1 monitor. Albeit the wind speed is "calm". At this point there was no monitor to the east of the Site (i.e. LAL2 had not been installed until 31 August). Therefore, although Mr Harding's witness statement may be linguistically correct, it fails to acknowledge the problem of no monitor being installed in the direction the smoke was actually blowing.
  115. I am extremely conscious that it is not for a judge of the Administrative Court to judge the facts. But this is a case where a detailed consideration of the report and the witness evidence shows that the true position is not as being presented by the witness.
  116. In my view that lack of monitoring of the impacts of fires at LAL2 during the time when most fires occurred, i.e. for the majority of August 2023 fatally undermined reliance on the TRL data for the conclusion that there was no material impact on the residents from the fires, which could give rise to a finding of contaminated land. At the date the decision was made, i.e. April 2024, the LA did not have the necessary data upon which they could reach a conclusion in line with the Guidance. They did not have data which covered the main period of the fires together with appropriate monitoring at the correct locations.
  117. The Guidance at para 3.4 is very precise about what information is required in order for a proper decision to be made:
  118. "3.4 Risk assessments should be based on information which is: (a) scientifically-based; (b) authoritative; (c) relevant to the assessment of risks arising from the presence of contaminants in soil; and (d) appropriate to inform regulatory decisions in accordance with Part 2A and this Guidance."
  119. For this reason, in my view Grounds 3(b) and 5 are made out. The LA appear to have believed that they had sufficient data because they had the TRL monitoring, but they simply do not appear to have appreciated that a critical part of that monitoring only started after the vast majority of the fires in 2023 had already taken place.
  120. For this reason also, Mr Hart's second ground of defence to Ground 3(a) must fail. The LA did not have the necessary material in respect of the impact from smoke to have properly taken that into account in reaching the Decision.
  121. Ground Two is that the LA failed to consider whether there were health effects which may be considered to constitute significant harm. In other words, it is accepted the LA considered health effects such as cancer which would always cause significant harm, but Dr Wolfe says they failed to consider other health effects which might cause harm, such as respiratory tract effects. He says this is required by para 4.5-4.6 of the Guidance.
  122. Mr Lewis submits that the LA is not under a duty to consider every possible health effect, it must be satisfied that the health effect is sufficiently significant as to potentially justify designation as contaminated land. Therefore para 4.6 does not create a mandatory material consideration but rather identifies matters which the LA may take into account.
  123. Further he submits that the LA has taken into account particular substances of concern through the TRL work.
  124. I agree with Mr Lewis' interpretation of para 4.5-4.6 of the Guidance. There is a clear distinction in the language of the Guidance between para 4.5 which is mandatory, and para 4.6 which gives the LA a discretion. For the not necessarily significant health effects it must be for the LA to decide whether there is sufficient material for them to be taken into account on a particular case.
  125. Ground Four is that the LA failed to take into account the effect of contaminants on "non-human receptors" and, in particular, impacts on local schools or the devaluation of properties. Dr Wolfe refers to Table 2 of the Guidance which provides that the Defendant "should regard substantial damage or substantial interference as occurring when any part of the building ceases to be capable of being used for the purpose for which it is or was intended".
  126. However, the Defendant failed to assess whether impacts on properties surrounding the Site (specifically school buildings and businesses) amounted to a substantial interference, as required by Table 2 of the Guidance.
  127. Mr Brett points out that the threshold for the existence of a property impact in Table 2 is that the building or any part of it becomes incapable of being used for the purpose for which it was intended by reason of a contaminant linkage. The contaminated land scheme is not intended to deal with impacts on amenity, which is in substance what Dr Wolfe is complaining about.
  128. In any event there is no evidence as to devaluation of property which could possibly have made it a legal duty for the LA to take this into account.
  129. Further, the LA plainly did have regard to the effect of fires on the use of schools and properties, but there was no evidence to suggest that they were incapable of use.
  130. I agree with Mr Brett on these points. There was insufficient evidence to suggest that the impacts of the fires led to buildings being incapable of use, or that the properties had been devalued. There was no mandatory duty on the LA to consider these matters further in the light of the material before them.
  131. For these reasons I find Grounds Three and Five made out, and reject Grounds One, Two and Four.
  132. The LA and the IP both rely on s.31(2A) of the Senior Courts Act 1981 on the ground that it is highly likely that the decision would be the same if it was re-made. I have had regard to the Court of Appeal decision in R (Bradbury) v Brecon Beacons National Park [2025] EWCA Civ 489 and the need to focus on the impact of the error on the decision-making process.
  133. I do not consider this is an appropriate case to apply s.31(2A). Although there has been further monitoring which Mr Lewis submits does not show any significant risk to human health from fires, I am concerned that the LA appear to have been very confused about the correct legal approach to this site through the decision making process. The error under Ground Three(a) is one of approach, and the misunderstanding about what monitoring had been undertaken in what circumstances does not give the Court confidence in the clarity of the LA's consideration. This is combined with the position of the IP which in its appeal against the Abatement Notice was that the Site was "contaminated", but without any clarity as to what that meant and what they were conceding.
  134. In my view it is important that the LA reconsider the decision in the light of the proper legal analysis and all the up to date data that has been collected. It does not appear to me to be at all obvious that the decision would necessarily be the same.
  135. It would however not be appropriate for me to determine that the land is contaminated and make any declaration to that effect. That is not a matter for the Court and is a decision for the LA on the up to date material. Therefore the IP's submissions that there are alternative solutions before designation is not a matter for the Court, but rather the LA.

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