Mishcon de Reya's client, Clear the Air in Havering, has been successful in its judicial review of Havering Council's decision not to designate the illegal landfill site at Launders Lane as contaminated land.
The High Court has found in Clear the Air in Havering’s favour in three key respects:
- The Council had misdirected itself in law in relation to whether the smoke from the frequent fires on the site can be a contaminant linkage for the purposes of the contaminated land regime;
- That the air quality monitoring which the Council took into account for the purposes of making the contaminated land assessment was not sufficient because it did not properly assess the effect of the smoke from the fires (being only one monitor which was positioned in the opposite direction the wind was blowing during August); and
- The Court also found that the contaminated land decision was made prematurely, before the Council had proper monitoring of the air quality issues caused by the fires.
The Court was also not convinced that if the decision was re-taken lawfully, the outcome would be the same.
Mrs Justice Lieven appreciated the difficult position the community finds itself in, noting that fires have been burning on and off on this site since 2018, and that, after the Council had refused to designate the land as contaminated and then withdrawn a later abatement notice, no action is currently being taken to tackle the issues on the site.
Emily Nicholson, Partner at Mishcon de Reya, said:
“This is the first judgment that we are aware of which deals with assessment under the Contaminated Land Guidance, and it clarifies an important point on smoke being able to be assessed as a contaminant linkage for the purposes of the contaminated land regime. It also makes clear that where health impacts come from specific sporadic events, such as fires, decisions must be made based on evidence of the impacts of those events.
"The site at Launders Lane has already been on fire numerous times this year, and with the warm and dry weather set to continue, local residents are bracing themselves for increasingly intense and frequent fires throughout the summer. This judgment clarifies that the smoke from the fires is a potential contaminant pathway that needs to be assessed by Havering Council, and that, in order to do so, the Council needs to have regard to monitoring which captures the effects of the fire. My client looks forward to hearing from the Council how it intends to effect proper monitoring going forward, so that the health impacts of the site can be properly addressed.”
Ruth Kettle-Frisby of Clear the Air in Havering, commented:
“Clear the Air in Havering are delighted with the High Court judgment on the Launders Lane case. Overwhelmingly, the Judge upheld our contention that the decision not to designate the land on Arnolds Field, Launders Lane as contaminated was premature and unlawful. We are relieved that the Judge recognised the risk of significant harm to health that the fires are causing, impacting Rainham residents and the local London Fire Brigade.
“But there is still pitifully little in the way of strategy, guidance or support from the council. This month alone, Rainham residents have reported their understandable distress as they enter ‘another summer of hell’, with smoke already entering nearby schools. Residents continue to report constant coughing and stinging and irritated eyes, as well as having to close all windows during this hot weather, and they are extremely concerned about the long-term health implications.
“So, while we are delighted by the judgment, we are far from ready to pack up and go home. Daily weather warnings are being issued, and the Launders Lane fires are raging. Our priority remains with Rainham children as we continue to hold our council to account at this critical time and residents protected from harm.”
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