The smell hits the back of your throat and brings tears to the eyes

Date:

14/08/2008

Author:

Jon Robins

Source:

The Times

Matter:

Morgan and Baker - Hinton Organics

Frank Morgan: 'We were having a barbecue recently and suddenly the smell came and we all had to rush indoors'

 

Frank Morgan lives 300m from a composting site. "You can end up being stuck in your house like a prisoner," he says. Morgan, 57, from Publow, near Bristol, and his neighbours are complaining about what they say is the site's unbearable smell. It began operating in 2000 and there was no problem until 2002 when Bath & North East Somerset Council and the Environment Agency allowed the site to expand massively. "Nobody knows what the health impact is," Morgan says.

His solicitor, Paul Stookes, a partner at the environmental law specialists Richard Buxton solicitors, has visited the houses a number of times and is concerned about the exposure to air pollutants, in particular the carcinogenic fungal spore Aspergillus fumigatus. "We know that there have been high levels emitted. It's quite astonishing that neither the agency nor the council is taking positive steps to address this. The smell hits the back of your throat and brings tears to the eyes."

The case has prompted what is thought to be the first legal action against the Environment Agency, accusing it of failing to take action to protect residents from the dangers of what they say are bio-aerosols being released into the air. "This is not ‘compost'. There is nothing green about the site," Morgan says. "We were having a barbecue recently and suddenly the smell came and we all had to rush indoors and close the windows. It was horrendous."

Morgan and his neighbour, Cathy Baker, have already run up a £25,000 legal bill after having first being granted an injunction to stop the site from operating; the injunction was later overturned. The claim was initially funded by legal expenses insurance included in a household policy but the cover has been exhausted and now they are unable to go back to court. "We've lost faith in the legal system, the council and the Environment Agency," Morgan says. "They are all supposed to be protecting local residents from this kind of pollution."

The High Court judge, Mr Justice Sullivan, highlighted the Morgan case in his recent report, Ensuring Access to Environmental Justice in England and Wales, which found that only the "very rich or very poor" could afford to fight environmental schemes imposed by government or local authorities. As Stookes explains, claimants applying for an injunction are forced by any polluter or developer to give an undertaking to meet losses. Most, if not all, residents cannot afford to do this. Mr Justice Sullivan proposes that in environmental cases such an undertaking be scrapped.

In the Morgan case, the residents could not afford to provide such an undertaking. They were able to take the case to court after the judge was persuaded of the seriousness of the issues at stake. This scenario is typical, Stookes says, of many environmental cases. "Yet these are the very cases that the Government considers should have protection and has committed itself to by signing the Åarhus convention because it is almost always in the public interest to be able to challenge pollution and environmental decisions when they arise," he argues. "In addition to the risk of costs for an injunction, ‘the loser pays' costs rule often prevents residents and local communities enforcing their rights and going to the courts. Developers play to that fear. Hence access to justice just isn't there."

The UK signed up to the Åarhus convention a decade ago and it was ratified in February 2005. The Government has undertaken to ensure that ordinary members of the public who wish to pursue environmental challenges should have access to procedures that are "fair, equitable and not prohibitively expensive". The Morgan case is the first appeal on the ground that legal action is "prohibitively expensive" and contrary to the Åarhus convention. The Sullivan report focuses on how judicial review operates to fulfil the Government's Åarhus obligations.

The Sullivan report makes several recommendations, including a more generous use of protective costs orders, developing "a partnership approach" between the Legal Services Commission and NGOs to public funding, and removing the requirement to give a cross-undertaking in damages when seeking an injunction.

Lord Justice Carnwath has asked the Department for Environment, Food and Rural Affairs to make a formal response to the Sullivan report in the Morgan case. "At least two other judgments since \ publication have referred to the report and one has repeated the call for the civil procedure rules committee to codify its recommendations," Carol Hatton, solicitor at WWF-UK, a member of the Sullivan working party, says. The Coalition for Access to Justice for the Environment (which includes Friends of the Earth, Greenpeace, the RSPB, the Environmental Law Foundation and WWF) is also seeking to intervene in the Morgan case.

"It is a situation we face in every case we take on," Phil Michaels, head of legal at Friends of the Earth, says. He cites a challenge that the charity launched against the Environment Agency in 2003, over allowing a company to scrap US "ghost ships" in Hartlepool. The day before the trial, FoE received a schedule of the agency's legal costs of £100,000 (including leading counsel and two junior barristers) for a one-day judicial review: it would have claimed these costs had the FoE lost. Michaels says: "Even if we have a good case and even if at the end of the day that case is successful, we're usually unable to get an injunction to stop the development going ahead because the court requires you to pay up a cross-undertaking in damages."

Pending a government response to Sullivan, it remains "almost impossible to take environmental court action without the threat of losing your home or exposing your organisation to unacceptable risk", Hatton says. "The system means that the environment will continue to be the victim and no one can afford to protect it."

* The Times contacted the composting company, the Environment Agency and Bath & North East Somerset Council. All declined to comment