Fighting Dirty Limited, R (on the application of) v Environment Agency

This is a judicial review case about the environmental regulation of sludge when it is spread on farmland. The issue is whether the Environment Agency’s decision to remove the Target Date for implementing its Sludge Strategy, without identifying a replacement Target Date, was reasonable in public law terms. “Sludge” is encountered at §§5 and 11[1] below; the “Sludge Strategy” is at §§9 and 13. There is a question about the intensity of reasonableness review in environmental judicial review cases (see §§29-35 below). All three parties have environmental protection at the heart of their identity and ethos. I am grateful to them and their legal teams for the assistance given to the Court.

The Claimant is a private company limited by guarantee without share capital (ie. not-for-profit), set up by its three directors as a campaign group committed to identifying and challenging legal and policy mechanisms that allow pollution to enter the natural environment. Georgia Elliott-Smith is an environmental engineer, a Chartered Environmentalist, Member of the Institute of Environmental Management of Assessment, and former UNESCO Special Junior Envoy for Youth and the Environment. George Monbiot is an award-winning journalist, filmmaker, speaker, activist and author, who won the Orwell Prize for journalism in 2022 for his decades-long commitment to neglected environmental issues, and is an honorary fellow at Wolfson College Oxford. Steve Hynd is the Policy Manager at the award winning not-for-profit ‘City to Sea’ which campaigns to stop plastic pollution at source, who has led on campaigns to see the most polluting single-use plastics banned, and has previously worked at every level of politics in both the UK and European Parliament and as The Head of Mayor’s Office on Bristol City Council. The Claimant’s corporate objectives are: (i) to raise awareness of and fight environmental pollution that results in harm to life on Earth; (ii) to campaign for elimination, abatement, or mitigation of such pollution; (iii) to use legal instruments where necessary to challenge mechanisms that enable such pollution including, but not limited to, local, national, or international policy and regulations for the purpose of reducing or eliminating such pollution; (iv) to engage in political advocacy aligned with the above objects; (v) to undertake any other business in connection with the above objects; and (vi) to do all such other things as are incidental or conducive to the attainment of the above objects or any of them. This is an Aarhus Convention claim (CPR 46.24) on the basis that the grounds for judicial review concern alleged breaches of domestic law relating to the environment. The sufficiency of the Claimant’s interest was recognised in the grant of permission for judicial review.

The Agency (also known as the EA) is an independent environmental regulator, established in April 1996 as a non-departmental public body under the Environment Act 1995. It is a public authority whose powers and duties are found in primary and secondary legislation. Its sponsoring Government department is the Department for Environment, Food and Rural Affairs, headed by the Environment Secretary. The relationship between the Agency and the Department is governed by a published 2017 Framework Agreement. The Agency is independent of the Department. It undertakes a wide range of environmental functions mainly regulatory in nature. By s.4(1) of the 1995 Act, Parliament has identified as the Agency’s principal aim – in discharging its functions – to protect and enhance the environment taken as a whole, so as to make the appropriate contribution towards attaining the objective of achieving sustainable development, about which objective the Environment Secretary is statutorily-required to give statutory guidance (s.4(3)). Pursuant to s.56(1), “the environment” means “all, or any, of the following media, namely, the air, water and land”. “Sustainable development” has been taken to mean meeting the needs of the present without compromising the ability of future generations to meet their own needs: Spurrier v Transport Secretary [2019] EWHC 1070 (Admin) at §635. By s.37(2) of the 1995 Act, the Agency is obliged to provide, at their request, the Environment Secretary (or the Minister) with advice and assistance. The Agency is frequently interwoven as environmental regulator into regulations made by the Environment Secretary. By s.37(1)(a), Parliament empowered the Agency to “do anything which, in its opinion, is calculated to facilitate, or is conducive or incidental to, the carrying out of its functions”. Mr Westmoreland Smith KC identifies this as the statutory power being exercised, and function being discharged, by the Agency in issuing and reissuing the Sludge Strategy. The Agency is the identified regulator so far as concerns the 1989 Regulations and the 2016 Regulations (§§5-8 below).

The Environment Secretary is a member of the Government and is head of the Department (also known as Defra). By s.4(2) of the 1995 Act, Parliament has required the Environment Secretary to give statutory guidance to the Agency – to which the Agency is required to have regard (s.4(4)) – with respect to objectives which the Environment Secretary considers it appropriate for the Agency to pursue in the discharge of its functions, including (s.4(3)) the appropriate contribution towards attaining the objective of achieving sustainable development. December 2002 statutory guidance describes “sustainable development” as being about “achieving a better quality of life for everyone, now and for generations to come”, with four simultaneous key objectives: social progress which recognises the needs of everyone; effective protection of the environment; prudent use of natural resources; and maintenance of high and stable levels of economic growth and employment. As “appropriate Minister” (s.56), the Environment Secretary is empowered (s.40(1)) to give directions of a general or specific character with respect to the carrying out of any of its functions, with which the Agency as a “new Agency” (s.56) must comply (s.40(8)). The Environment Secretary’s powers include statutory rule-making by delegated legislation, with statutory powers to make and amend secondary legislation to regulate environmental hazards. The Environment Secretary is the identified rule-maker so far as concerns the 1989 Regulations and the 2016 Regulations (§§5-8 below).

On 24 July 1989 the Environment Secretary as legislative rule-maker (acting in respect of England) – together with the Welsh Secretary and the Scottish Secretary (acting in respect of Wales and Scotland) – made the Sludge (Use in Agriculture) Regulations 1989 (SI 1989 No. 1263). The rule-making power was s.2(2) of the European Communities Act 1972. The 1989 Regulations continue to have effect pursuant to s.2 of the European Union (Withdrawal) Act 2018. There have been a series of amendments to the 1989 Regulations over time, most recently in 2019. The 1989 Regulations have been accompanied by a Code of Practice, issued by the Environment Secretary. The version of the Code of Practice on the gov.uk website is dated 23 May 2018. Under regulation 2, “sludge” means “residual sludge from sewage plants treating domestic or urban waste waters and from other sewage plants treating waste waters of a composition similar to domestic and urban waste waters”; and “septic tank sludge” means “residual sludge from septic tanks and other similar installations for the treatment of sewage”.

I have derived this overview from the original 1989 Explanatory Note, with some revision to reflect 1996 amendments, and focusing on England. The 1989 Regulations implemented EU Directive No. 86/278/EEC on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture. Regulation 3 prohibits sludge from sewage plants from being used in agriculture unless specified requirements are fulfilled. They include the testing of the sludge and the soil (Schedules 1 and 2). Regulation 4 specifies precautions which must be taken after sludge from sewage plants or septic tanks is used on agricultural land. Regulation 5 requires the occupier of land on which sludge has been used to provide the sludge producer with information about the land and the sludge used. Regulations 6 and 7 require every sludge producer to maintain a register of the quantities of sludge produced and supplied for use in agriculture, including details of the amount of sludge used on each agricultural unit and the results of analysis of the sludge and the soil. The register is to be available to the Agency for inspection, together with such information or facilities as the Agency may reasonably require, including facilities for analysing the sludge or soil. The sludge producer is required to provide persons they supply with the results of analysis of the sludge. Regulation 8 makes special provision for dedicated sites, which on 17th June 1986 (the date of notification of the Directive) were dedicated to the disposal of sludge but on which commercial food crops were being grown exclusively for animal consumption. Regulation 9 provides an offence of contravening the Regulations, which carries a maximum fine on summary conviction of level 5 on the standard scale. Regulation 10 empowers the Agency to take civil sanctions in relation to Regulation 9 offences. Regulation 11 requires the Environment Secretary to publish a report by 31 December 2019 on implementation of the Regulations.

On 11 December 2016 the Environment Secretary as legislative rule-maker (acting in respect of England) – together with the Welsh Ministers (acting in respect of Wales) – made the Environmental Permitting (England and Wales) Regulations 2016 (SI 2016 No.1154). The primary rule-making powers were in the Pollution, Prevention and Control Act 1999, the Water Act 2014 and the 1972 Act. By virtue of regulations 2 and 32, the “regulator” for England is primarily the Agency. In designing the 2016 Regulations, the Environment Secretary excluded by express provisions in regulations 2 and 8 the use of sludge on agricultural land. The use of sludge on non-agricultural land, and its storage, were both regulated by the 2016 Regulations.

I have derived this overview on the original 2016 Explanatory Note, focusing in particular on England. The 2016 Regulations provide a consolidated system of environmental permitting in England and Wales, replacing 2010 regulations, and transposing provisions of 15 EU Directives which impose obligations required to be delivered through permits or capable of being delivered through permits. Part 1 contains general provisions, in particular interpretation. Regulation 12 requires every regulated facility to be operated under the authority of an environmental permit. Part 2 sets out the procedures in relation to environmental permits. Part 3 provides for the discharge of functions by the regulator in relation to permits. Part 4 contains enforcement-related provisions. Part 5 make provision for public registers to be kept by the regulator. Part 6 confers powers on the regulator and the Environment Secretary and imposes duties on the regulator. Part 7 contains miscellaneous provisions. Regulation 80 requires the Environment Secretary to review the operation and effect of the 2016 Regulations before the end of April 2019 and every 5 years thereafter and lay a report before Parliament.

The Sludge Strategy (entitled Strategy for Safe and Sustainable Sludge Use) was first issued by the Agency on 17 March 2020, with a Target Date of 2021. It was then reissued four months later, on 15 July 2020, with a Target Date of 2023. Three years later it was reissued again, on 1 August 2023, with no Target Date. It can be seen online at gov.uk. Everyone agrees that, by August 2023 the Target Date of 2023 had become unachievable and needed to be removed. But the question is whether the failure to include a replacement Target Date was compatible with the Agency’s public law duty to act reasonably.

All three versions of the Sludge Strategy describe a regulatory change, identified as appropriate by the Agency. The regulatory change would move the regulation of sludge used on agricultural land from being governed by the 1989 Regulations to being governed by modified arrangements in the 2016 Regulations. That would mean repealing the 1989 Regulations and modifying the 2016 Regulations.

In explaining what this case is about, a helpful source is the background briefing paper which was emailed on 16 July 2021 by James Croft, then the Department’s new policy advisor on Water Quality and Agriculture. Mr Croft’s email went to Clive Humphreys, a policy lead at the Agency, and colleagues at the Department including sludge policy lead Tom Davies. It was one of the documents disclosed by the Agency in these proceedings (in March 2024). Its contents show how Mr Croft saw the position. Here is an extract (with numbers in square brackets because I am compressing a layout including headings and bullet points):

If you were a keen observer monitoring what was being said in the public domain, here are some key things you would have noticed. On 4 February 2020 a report by AECOM entitled “Materials to Land Phase 2 Technical Report” was made public, following freedom of information requests by Greenpeace and work by investigative journalists. The Agency had commissioned the AECOM Report and it had first been published on 13 November 2017. The AECOM Report described information arising from sampling of sludge spreading on farmland. Mr Wolfe KC and Ms Comyn for the Claimant say this about the AECOM Report:

The Sludge Strategy was published on 17 March 2020. Key points made by the Agency within the text of the Sludge Strategy are the following:

The Agency’s publication of the Sludge Strategy on 17 March 2020 coincided with this Government Response to a Parliamentary Question:

When the Sludge Strategy was reissued on 15 July 2020 its contents including (1) to (8) (§13 above) remained the same, but with this as a new point (9):

When the Sludge Strategy was reissued on 1 August 2023 its contents including (1) to (8) (§13 above) remained the same, but point (9) from July 2020 (§15 above) was deleted and not replaced.

On 12 March 2024 there was this Government Response to a Parliamentary Question:

The Environment Secretary originally took the position that the two Government Responses were “inadmissible” as evidence. The basis for that contention was that Parliamentary questions and Responses constitute “proceedings in Parliament” for the purposes of Article 9 of the Bill of Rights 1689 and the material did not fall within the exceptions as set out R (Heathrow Hub Ltd) v Transport Secretary [2020] EWCA Civ 213 [2020] 4 CMLR 17 at §58. In the end, this objection subsided. The fact that Government made the two statements is useful background. I detected no impermissibility of purpose. Mr Westmoreland Smith KC did not rely on them to make any point – or rely on any point being made – about Government priorities at different times. The contents of the Government Responses were and are not being questioned, impugned or interpreted.

The March 2020 and July 2020 versions of the Sludge Strategy gave Target Dates (of 2021 and 2023 respectively) for the regulatory change to have been implemented. However, the July 2020 version of the Sludge Strategy also gave a date (“mid-2023”) for the Agency to have requested the Environment Secretary to exercise legislative powers (see §15 above). Fleetingly, a point arose out of this. But it fell away. In granting permission for judicial review, Eyre J referred to the absence in the August 2023 reissued Sludge Strategy of a new date for this action by the Agency, of making a request to the Environment Secretary. By the time the case came before me for substantive hearing the case for the Claimant – advanced and developed by Mr Wolfe KC and Ms Comyn – was squarely put in terms of the absence of a Target Date for the regulatory change to have been implemented. That is where they and everybody else has focused and that is where I will focus.

The July 2020 reissued Sludge Strategy described the Target Date of 2023 for the regulatory change to have been implemented. The reason why – as everyone agrees – the Target Date had become unachievable by 1 August 2023 was because there was now insufficient time for implementation by the exercise of the Environment Secretary’s rule-making powers. So far as concerns the removal of the Target Date, what happened internally was this. On 22 March 2023 the Agency’s Phil Fitzgerald (Advisor in the Land and Contamination Management Team) emailed three colleagues at the Agency. They were Barry Sheppard (Land and Contamination Manager in the Water and Land Quality Team), Sean McKay (Implementation Project Manager) and Lottie Hutchinson (Senior Adviser Materials to Land). Mr Fitzgerald said he was “just flagging that we are likely to need to make some small changed to the [Sludge Strategy]” which “involves removing/changing the 2023 target date”. On 5 May 2023 the Agency’s Mr Sheppard sent an email to Jane Learmount, Chris Judd and James Croft at the Department, ahead of a Strategic Steering Group Meeting the following week. Mr Sheppard’s email recorded that the water companies would have realised “we can’t bring it in in 2023 as we say on gov.uk”. On 13 June 2023 a Note to Ministers, written by Ms Learmount, told the Environment Secretary and Minister Pow that the regulatory change would require a statutory instrument and “the timeline is no longer feasible”, and recommended that the Environment Secretary and Minister Pow “note” that the Agency “are removing ‘we aim to do this in 2023’ from the gov.uk published Sludge Strategy”. On 14 June 2023 Mr Sheppard emailed Ms Learmount and Mr Croft (cc’ing others), referring to “the need to update the 2023 date on gov.uk that is clearly no longer achievable”. On 12 July 2023 Mr Sheppard emailed Ms Learmount, Mr Judd and Mr Croft (cc’ing others), referring to updating and revision of the Sludge Strategy, and referring (among other things) to action to “remove the 2023 date”. Mr Sheppard said the Agency “need to make sure you are happy with what we are proposing to do”. After a call on 18 July 2023, Ms Learmount replied on 19 July 2023, saying (among other things) that she was content with “removal of the 2023 date”. These emails were disclosed in these proceedings in October 2023 and March 2024.

So far as concerns the inclusion of no replacement Target Date, what happened internally was this. In his 5 May 2023 email to the Department’s Ms Learmount, Mr Judd and Mr Croft, ahead of their Strategic Steering Group Meeting the following week, the Agency’s Mr Sheppard said: “I’d like your view as to how far we can go” in relation to “timelines for the Strategy”. He said the water companies “will ask for a timeline”. He asked whether Department officials would be “happy with me mentioning the need for a fresh ministerial steer and awaiting the outcome of this”. He asked about floating with the water companies the idea that “implementation may be pushed back to 2029/30” to fit in with a “PR29 process”, complete the impact assessment and then “implement permit changes in 2030”. He wanted to “make sure they realise that the Sludge Strategy work has not stopped but may be undergoing a reprogramme” and “would like your view as to how far you’d like me to go”. The email concluded with this:

In the 13 June 2023 Note to Ministers, the Department’s Ms Learmount told Ministers that the Agency was wanting, in removing the 2023 Target Date, to “send information to key stakeholders that affirm[s] a commitment, but to a later unspecified deadline”, thus “informing stakeholders”. In his 14 June 2023 email to Ms Learmount and Mr Croft, Mr Sheppard asked “do we have to await a ministerial response” and said he was “uneasy about the reputational risk for the [Agency]”. In his 12 July 2023 email to Ms Learmount, Mr Judd and Mr Croft, Mr Sheppard proposed that the Agency would:

It was in these circumstances that the Agency deleted the 2023 date and said no more about implementation timing in the Sludge Strategy. However, Mr Sheppard said this in an email to stakeholders (water companies) – reviewed by the Department and using Ms Learmount’s phrase “the timeline is currently under review” – written on 2 August 2023, the day after reissuing the Sludge Strategy, and disclosed in these proceedings on 5 October 2023:

The Claimant’s solicitors had written (27 July 2023), ahead of reissue of the Sludge Strategy, asking for an update. The Agency’s Leonore Frear (Deputy Director, Water and Land Quality) replied on 22 August 2023, telling the Claimant’s solicitors this:

The Agency has filed witness statement evidence – and the Agency and the Department have disclosed documents – relating to what was happening during the period between 2020 and 2023. From those materials there are various themes, from which I emphasise two. The first theme is that there were multiple inputs by the Agency to the Department. On 26 January 2021, the Department’s William Lacey (Team Leader, Water Quality and Agriculture Policy) recognised that the Agency’s “work is already underway, particularly with the relevant working groups with industry partners” and suggested “that these are completed and final recommendations submitted to Defra”, after which “this work will have to be paused” in light of the Department having “struggled to resource work on sludge regulation”. The upshot was the 16 July 2021 briefing by the Department’s Mr Croft (§11 above), which accompanied an email describing the Department as “currently at the stage of assessing the resource intensity of the strategy and examining our options moving forward”. Here are examples of the Agency’s inputs. On 8 March 2022, as requested, the Agency sent the Department information for a Note to Ministers. On 11 March 2022, as requested, the Agency sent Mr Croft a 7-page draft Formal Sludge Strategy Proposal. On 28 June 2022, the Agency marshalled information for use in a discussion with the Department the following day. On 27 September 2022 the Agency team conducted a “Defra Teach-in” on implementing the Sludge Strategy with 11 PowerPoint slides including a timeline slide, projecting implementation as still (just) achievable by the end of the calendar year 2023. On 12 October 2022 the Agency provided 6 pages by email, answering the Department’s questions arising out of the Teach-in. On 23 February 2023 the Agency provided 3 pages by email, answering questions raised by Chris Judd on 1 February 2023.

The second theme is that there were repeated references to ministerial “appetite”, the “political” process, and the need for a “steer” from Ministers. As has been seen (§11 above at [4][b]) James Croft’s July 2021 briefing note said the “issues” included:

I can now turn to the argument advanced by Mr Wolfe KC and Ms Comyn on behalf of the Claimant, in their written and oral submissions. Here is the essence of the argument, as I saw it:

That is the argument. I address it at §§36-47 below.

My attention was invited to R (Justice for Health Ltd) v Health Secretary [2016] EWHC 2338 (Admin) where Green J stated this cardinal truth (at §186):

What do we mean by a contextually variable intensity of scrutiny in a reasonableness judicial review? One idea is that the judicial review court does more, in terms of taking a closer look, which we can think of as careful scrutiny. Another idea is that the judicial review court needs more, in terms of the strength of the reasons required to justify the public authority action as reasonable. Where a court does more, and in particular where a court needs more, we may think of a narrowing in the width of the latitude afforded to the public authority rule-maker, decision-maker or policy-maker. The language of “deference” has fallen into disuse, but reference is made of a “light touch” approach (Packham §51). In all this, the central point is that what the judicial review court is looking for, and what it needs, does not involve substitutionary review on a correctness standard; but a reasonable justification, from the reasons put forward, recognising who is the primary decision-maker with the built-in latitude for evaluation and choice.

Mr Wolfe KC and Ms Comyn submit as follows. Environmental judicial review cases can attract a close intensity of reasonableness review. A principled basis for identifying a class of case attracting close intensity of review is a claim which challenges the legality of any decision act or omission, of a body exercising public functions, which contravenes provisions of national law which relate to the environment. This is the familiar “Aarhus Convention claim” for access to justice in environmental matters, used in our costs rules (CPR 46.24). The correct position was articulated by Ouseley J in R (McMorn) v Natural England [2015] EWHC 3297 (Admin) [2016] PTSR 750 at §§174, 204-205. That should be followed notwithstanding the observations of Gilbart J in R (Dillner) v Sheffield City Council [2016] EWHC 945 (Admin) [2016] Env LR 31 at §§184-187. The observations which the UK has made to the Aarhus Convention Compliance Committee (20.8.18 and 22.10.19) are correct on this point. This is a case which should attract a close scrutiny of review, as an Aarhus Convention claim, and in any event given the environmental protection context and circumstances. That is because of the seriousness of the environmental problem and the necessary change which had been long and publicly recognised.

Mr Westaway for the Environment Secretary submits as follows. It is well-established that – when reviewing the lawfulness of a decision on public law reasonableness grounds – the intensity or standard of review depends on the context. Where, fundamental human rights or other matters necessitating specific engagement and justification are at issue, a more intense scrutiny or standard of review may be appropriate (see De Smith §6-108). This is not such a case. The content and timing of any legislative proposal involve complex socio-economic and environmental judgment on matters of policy (Friends of the Earth at §141), with an essentially “political” quality of the decision under challenge needing to be accorded a broad margin of discretion (Packham at §§48-52).

Mr Westmoreland Smith KC for the Agency submits as follows. Context is everything in judicial review. The starting point is the general standard of unreasonableness (De Smith §6-108). But “context is everything”. The fact that the claim is an Aarhus Convention claim does not change the standard of review (Dillner §187). McMorn does not say that an Aarhus claim means a more intensive review each time; it was the facts (McMorn at §205) which warranted the closer examination, including an undisclosed policy with differential treatment and impact on livelihood. This is not an anxious scrutiny case, because it does not engage fundamental rights or human rights (De Smith §§6-060, 6-062) and is not of real importance to individuals (De Smith §6-030). Greater intensity of review is not warranted simply by reference to the importance of the issue, at least where, as here, there are complex factors (Friends of the Earth §141). The context here is an update to a policy, whose propagation is for the policy maker, and lies in the “political” arena (Packham).

In my judgment, the correct legal analysis is as follows:

I am persuaded that the present case warrants careful scrutiny, apt for the environmental protection context in which it arises, in terms of what the judicial review court does (§30 above). But I do not accept that this is a case where the judicial review court needs more, in terms of the strength of the reasons required to justify the Agency’s action as reasonable; nor that the context and circumstances serve to narrow the width of the latitude afforded to the Agency. The claim is built on the seriousness of the environmental problem, and the necessary regulatory change, publicly recognised by the independent regulator. But, as I will explain below, that position does not equate to imperative urgency; nor does external material support a case of imperative urgency. The question in issue concerns the judgment as to whether to include a replacement Target Date for implementation of regulatory change, where the context is: that regulatory change would involve Government using legislative powers; that this was appropriately a collaborative decision-making setting; and where the rate of progress and engendered expectations about future progress came into collision with questions of policy prioritisation which the Agency would inform but did not own and could not dictate. In that context, there was in my judgment a broad latitude for the Agency in deciding whether a new Target Date, and if so what Target Date, should form part of the reissued Sludge Strategy.

The question I have to decide is one of law. My function, after reading and listening, is limited to deciding that question and giving this written explanation of my decision. I have arrived at the conclusion that the action of the Agency in deleting the unachievable 2023 Target Date from the Sludge Strategy and reissuing the Strategy without any Target Date but with the other contents repeated, involved no breach of the Agency’s public law duty to act reasonably. Here are the reasons why I have arrived at that conclusion:

First, there is the legal setting in which the Agency was acting. The power being exercised has been identified, without contradiction, as s.37(1)(a) of the 1995 Act, “do anything which, in its opinion, is calculated to facilitate, or is conducive or incidental to, the carrying out of its functions”; where its functions are to protect and enhance the environment taken as a whole, so as to make the appropriate contribution towards attaining the objective of achieving sustainable development (s.4(1)). This power enables the Agency to promote regulatory change which it believes to be necessary, to manage risks and push for environmental improvement. Especially where it is interwoven into regulatory regimes as a regulatory decision-maker. It can publish a strategy. It can give a timeline. It can do all of this, notwithstanding that it does not possess the statutory powers whose exercise would be involved in the favoured regulatory change. There was no duty from any statutory or policy framework to state a Target Date, or a new Target Date. Rightly, no public law legitimate expectation is claimed. Judgments, in the exercise of an opinion – about what facilitates and is conducive – are evaluative matters of appreciation. And as Mr Westmoreland Smith KC and Mr Westaway both point out, without contradiction, it is not unusual for statements of policy intention not to set out a timetable because of the various pressures of Government which makes it difficult to be specific as to timings.

Secondly, there is the nature of the source on which the claimed unreasonableness is based. It is not said that the Agency has acted unreasonably in the light of an environmental protection necessity found in some external source of information. All of the points about the environmental protection necessity derive from the contents of the Sludge Strategy itself. This is the very platform on which the claim for judicial review stands. That means the Agency is being characterised as unreasonable in the way it has promoted in public its own recognised need for regulatory change. The logic is that the Agency’s actions are so contradictory of its own words as to constitute public law unreasonableness. I repeat. Rightly, no breach of any public law legitimate expectation is claimed.

Thirdly, there is the provisional nature of the need for regulatory change which the Agency had publicly recognised. The Sludge Strategy was and is clear that the Agency, for its part, has identified the regulatory change of including agricultural land-use of sludge within the 2016 Regulations as the way forward. But that was a position which was necessarily provisional. The Agency had identified what it wanted to happen. It was going to engage through working groups to progress that objective. It was not going to conduct further consultation. To the Agency, this was a “commitment”. The Agency’s Letter of Response (5.10.23) describes its “commitment to Option 4”. The Teach-In slides (27.9.22) had identified its “commitment to deliver in 2023”. Mr Judd’s Note to Ministers (13.6.23) said of the July 2020 Sludge Strategy that the Agency’s “commitment was made to move and evolve SUiAR requirements into the EPR by 2023”; that the Agency now wanted to “affirm a commitment”; and that there was a “low reputational risk” that the Department would be “seen” to not be acting quickly enough “on published commitments that will improve environmental outcomes”. But this could never be a commitment to legislative action by the Environment Secretary. It was always publicly known where the legislative powers reside. That is why the Target Date was necessarily aspirational. The Sludge Strategy was explicit that the Agency would “submit a request for legislative change”. As the Agency put it, writing to the Claimant’s solicitors (14.3.24), it is “unable to make a commitment to legislative change because this is not in our control. Only Government can make a commitment to bring forward legislation”.

Fourthly, there is the question whether temporal-urgency was reflected in the Agency’s position assessing a need for regulatory change. When the Sludge Strategy was issued in March 2020, the Target Date was 2021. But by July 2020 the Agency had re-set its aspirations, putting the Target Date back by two years. The regulatory need which the Agency had assessed as arising was not a pressing imperative. It could not have been, consistently with this two-year deferral. This was not therefore an environmental emergency. The use of sludge on agricultural land was not unregulated. There were the 1989 Regulations and the Code of Practice. The concerns that had arisen related to an emerging picture about evidence and risk. Had the Agency in its considered and reasoned assessment taken the view that there was serious environmental hazard and a serious and immediate risk to health or the environment, it could not have been communicating an aspirational date which was a further two years away. Notwithstanding the palpable frustrations, recorded internally during the period 2021 to 2023, this was not an assessed temporal imperative. Mr Sheppard’s email (5.5.23) to Ms Learmount, Mr Judd and Mr Croft included this:

Fifthly, there is the incorrectness of the Do-Nothing criticism. In this judicial review claim, the Agency’s action is characterised – in substance – as being the very “Do-Nothing” option which the Agency had in 2000 rejected as unacceptable. Looking at the picture in its true context, I am satisfied that this is not a sustainable or fair characterisation. The Agency has had an unstinting ongoing resolve, that the regulatory change is the right thing for environmental protection, and that it would wish to see the change implemented. As Ministers were told in Mr Judd’s June 2023 Note to Ministers, the Agency wanted to “affirm a commitment”. Identifying the regulatory change as necessary and appropriate did not, as I have explained, entail a particular temporal-urgency. The Sludge Strategy was not withdrawn. It was not left on the gov.uk shelf with an expired Target Date. It was specifically reissued by the Agency, as an act of the Agency’s initiative, removing the unachievable 2023 Target Date. The contents of the Sludge Strategy (§13 above) were repeated. The Agency was publishing its position, in August 2023, as to the regulatory change that was needed and as to the Do-Nothing option that was unacceptable.

Sixthly, there is the bigger picture context. When a single-issue case comes before a judicial review court, it is understandable that the focus will be on that part of the map. The judicial review Court may, or may not, find that the parties provide a bigger picture so that some informed appreciation can be gained of what the other moving parts were. What can with confidence be said, and must be remembered, is this. Environmental protection is multi-faceted. The Agency will have its own workstreams, making its own choices as to resource-deployment and prioritisation. The same will be true within the Department. These are distinct entities. Each will have its position about its own workstreams and choices regarding resource-deployment and prioritisation. This is linked to Ministerial “appetite” (§26 above). The Claimant, and others interested in environmental regulation, will have their own positions. Obviously, full institutional resources and top prioritisation cannot be put behind every strand of environmental protection simultaneously. The judicial review Court is not an auditor of resource-deployment or an umpire of policy-prioritisation. Furthermore, it is not the Department’s action, but the Agency’s decision not to insert a replacement Target Date, which is under challenge in this case. When a court is considering a position, relating to how one aspect of environmental regulation has been handled, it must think about the extent to which it can see the knock-on implications and effects for other aspects of work. In this case, I do not have anything approaching that picture. I cannot look at this aspect of environmental protection – this regulatory change – and see what else there is, if anything, which might be given reduced-resourcing or lower prioritisation.

Seventhly, there is the nature of the action which the Agency did take, acting collaboratively, on the question of a Target Date. As I have explained, the Agency took the step of communicating directly with the Department about reissuing the Sludge Strategy, removing the now-unachievable Target Date, and about what it would now say about timing, in the Sludge Strategy and in communications alongside the Sludge Strategy (§§21-22 above). It is impossible, in my judgment, to characterise as unreasonable in a public law sense the action of raising the question of a published timeline, and then adopting a position which was in line with what the Department was asking. Given that the Agency’s position could only ever be provisional (§39 above), because the authority exercising the legislative powers was necessarily going to be the Environment Secretary, this collaborative approach is beyond any criticism which can properly be given a public law shape.

Eighthly, there are the real-world implications of adopting a new Target Date. How was the Agency to do that? Suppose the Agency had given a new Target Date of 2025. What would the basis of that have been? The Agency could have taken such a date, with the objective of publicly putting the Department under renewed pressure to act. That could have undermined the working relationship between the two authorities. It could have undermined the progress of this aspect of regulatory change. It could have undermined other aspects of important environmental protection work. Suppose the Agency had given a new Target Date of 2029. What would the basis of that have been? The Agency could have taken such a date, with the objective of allowing a generous headroom, as a long-stop. But the impression given might have been that the Agency did not for its part favour action being taken in the years before 2029. Any Target Date involved this basic problem. The Agency had properly asked the Department, and it knew that the Department did not want anything concrete to be said. The Department had specifically asked the Agency not even to say “we are currently in discussion with [the Department] to agree a new timescale”. The Agency could, in those circumstances, have decided to include a Target Date. But it is not difficult to see that such a course might not have been conducive to a good working relationship with appropriate collaboration, between the Agency and the Department, with the latter having responsibility for any exercise of the all-important legislative powers. To take the opinion that the adoption of a new Target Date would not be calculated to facilitate, or be conducive to, the carrying out of its functions was, in my judgment, reasonable in public law sense.

In the light of these points, I cannot accept that the action of not including a Target Date in the reissued August 2023 Sludge Strategy was action outside the range of reasonable responses open to the decision-maker. Nor can I see any unexplained evidential gap or leap in reasoning which fails to justify the conclusion that it was not appropriate to include a replacement Target Date.

That leaves the argument that it was unreasonable of the Agency not to assess the environmental impacts of reissuing the Sludge Strategy with no replacement Target Date, so that the Agency failed to take reasonable steps to acquaint itself with relevant information and failed to take into account an obviously material consideration. There is a preliminary problem. This point was separately pleaded as Ground 1, and the Order granting permission for judicial review (16.2.24): (a) expressly refused permission on Ground 1; and (b) directed that it was open to the Claimant within 7 days to request reconsideration which (by agreement) could be rolled-up with the substantive hearing. The position taken by the Claimant’s representatives in an email (23.2.24) and in their Skeleton Argument (17.6.24) was that the Judge’s comment meant the point was in scope. I do not agree with that reading of the Order. The Judge was saying that Ground 1 was insubstantial (by the comment), but also unarguable (by the refusal of permission). But be all of that as it may, there is no substance in this additional argument. The answer is this. The Agency was very well aware of the environmental implications of the regulatory change which it was itself describing. The picture as assessed by it in 2020 remained accurate, which was why the contents of the Sludge Strategy were reissued in August 2023, and there is no challenge to that substantive content (which indeed is the platform on which the claim stands). The Agency had done the work with the working groups and had provided the Department with multiple inputs (§25 above). It did not need to a do a separate impact assessment on timing, in August 2023, any more than it needed to do in March 2020 and July 2020. The Agency acted reasonably so far as concerned informing itself as to, and taking into account of, the harm.

I have discussed what a court does and what it needs (§30 above). I have explained (§35 above) that I have sought to give this case careful scrutiny; but that I have not identified a basis for a high intensity of review, where the Court needs more than it conventionally would from the reasons put forward to justify the action as reasonable; nor have I identified a basis for an appreciably narrowed latitude on the part of the Agency. To be transparent about it, I have asked myself whether – if I am wrong about what the Court needs – my conclusions and reasons would have been different. Having done so, my answer is that I would have come to the same conclusion, for substantially the same reasons.

For the reasons that I have given, I will dismiss this claim for judicial review. The Agency did not act unreasonably when reissuing the Sludge Strategy, in deleting the unachievable Target Date without replacing it with a new Target Date. The parties were agreed, in light of the judgment circulated in draft, that the appropriate Order is as follows (in light of the Aarhus cost caps directed by Eyre J on 16.2.24 pursuant to CPR 45.43). (1) The Claimant’s application for judicial review is dismissed. (2) The Claimant shall pay the Defendant’s costs in the amount of £10,000 within 28 days.

Mr Wolfe KC and Ms Comyn have asked me to grant permission to appeal. They say there is a real prospect of success in persuading the Court of Appeal that the judgment contains a material error of law. They raise what are really three points. (1) They say it is arguably wrong to have found no “unexplained evidential gap” (§45 above), because no (authorised) Agency decision-maker ever recorded a documented decision, it being insufficient that the Agency collaborated with the Department after floating the idea of “another specific date” (§§21, 43 above). (2) They say it is arguably wrong to have found no “imperative urgency” or “pressing imperative” (§§35, 40 above), because these were (a) implied by the 2021 Target Date and (b) consistent with the pandemic-related deferral to a 2023 Target Date. (3) They say it is arguably wrong to have taken into account “knock-on implications” (§42 above), because these were unevidenced and speculative.

I have not been persuaded to grant permission to appeal. The Agency’s collaboration with the Department, after considering and raising the question of “another specific date”, was sufficient in the context and circumstances; and the documents do not leave the Agency’s position “unexplained”. The Sludge Strategy and its Target Dates (2021, then 2023) do not identify or reflect an “imperative urgency” or “pressing imperative”. I did not take into account unevidenced “knock-on implications”, but made a “bigger picture” point recognising a contextual reality. The reasoning on these topics – and the other points by reference to which I have assessed reasonableness (§§37-44 above) – needs to be read in full and as a whole. I am unpersuaded that there is a realistic prospect of success in persuading the Court of Appeal to overturn any of these aspects of the judgment; still less in overturning the overall conclusion on reasonableness.