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High Court rules on interpretation of the Air Quality Directive in call-in judicial review

Dove J today gave judgment in R (Shirley) v SSCLG [2017] EWHC 2306 (Admin) which was a challenge to the Secretary of State for declining to call-in a planning application for an urban extension to the south east of Canterbury, comprising some 4,000 dwellings together with a variety of other forms of complementary development. 

The Judge noted that, 

“The Claimants challenge the Defendant’s decision not to call in the application on three, in my view, closely interrelated Grounds. Ground 1 is that the Defendant failed in taking his decision on call in to recognise, take into account and fulfil his obligation as the competent authority under EU Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe (“the AQD”) to bring air quality into compliance with the threshold values required by the AQD, and avoid worsening or the extension of time within which there was non-compliance with those values. The Claimants contend that in exercising his discretion as to whether or not to call in the application the Defendant failed to take into account his obligations and responsibilities as the competent authority in England and failed to take account of the requirements under the AQD to achieve the threshold exposure values in particular in relation to NO2 within as short a time as possible. Ground 2 is that the decision not to call the application in was irrational. Ground 3 is a variant on the rationality argument founded in particular on an observation raised in the Defendant’s pre-action protocol response. It is contended by the Claimants that it was irrational or perverse for the Defendant to consider that any error of law could be adequately remedied either by raising the concerns over air quality with the 1st Interested Party (who is not the competent authority under the AQD) or by way of legal challenge to the 1st Interested Party’s decision given the restricted jurisdiction of the court.” 

The Court ruled that (emphasis added): 

“47.       As set out above, the essence of Mr McCracken’s submissions in this respect is that the requirements to comply with the limit values for pollutants provided by Article 13 is a responsibility that is not to be remedied solely by the production of an AQP. He submits that Article 13 creates a broad responsibility upon Member States and, in particular by virtue of Regulation 17 of the 2010 Regulations the Defendant, such that all appropriate measures pursuant to Article 4(3) of the Treaty on European Union (“the TEU”) should be taken to ensure compliance with Article 13. The exercise of the power under section 77 of the 1990 Act amounted to an “appropriate measure” within the terms of the TEU for these purposes.

48.        Mr McCracken reinforces this submission (and meets the contentions made by the Defendant and the 1st and 2nd Interested Parties that the powers of the Defendant would be no different from the powers of the 1st Interested Party and therefore his argument has no content) by drawing attention, firstly, to the national overarching purview which the Defendant must have in terms of the coordination of activity to tackle breaches of the threshold values. This responsibility is all the more acute in Mr McCracken’s submission when no national AQP has been adopted. Secondly, he draws attention to the difference between the 1st Interested Party, who is not under the duty comprised in Article 13, and the Defendant who is. That duty, he submitted, would be an overriding consideration in circumstances where either the thresholds would be exceeded or the development would have the potential to impact upon the requirement to reduce exceedences in a period which has to be kept as short as possible. Without a national AQP to guide local planning authorities the responsibility upon the Defendant to impose measures to meet the Article 13 duty points, in Mr McCracken’s submission, ever more clearly at an imperative for the section 77 power to be exercised. He further submits that when approaching these submissions it is important to bear in mind the principles from Marleasing SA v La Commerical Internacional de Alimentacion SA Case C-106/89 [1990] ECR 1-4135 namely that national legislation must so far as possible be interpreted so as to be consistent with EU law and its obligations and, consequently, domestic legislation which cannot be so interpreted should be disapplied.

49.        I am unable to accept Mr McCracken’s submissions in this respect. Firstly, starting from the legislation itself, it is clear to me that when Article 13 is read alongside Articles 22 and 23, that the specific and bespoke remedy provided for by the AQD in the event that threshold values are exceeded is the production and implementation of an AQP to cease exceedences and ensure that any exceedence period is kept as short as possible. There is in my view simply no room within the scheme set out in the AQD for any freestanding responsibility to take any specific actions in relation to permits or development consents as a consequence of the AQD’s requirements. The legislation makes plain, particularly in the second paragraph of Article 23(1), that when there are exceedances of limit values AQPs are to be established and implemented so as to resolve those exceedances. The AQD does not in its terms require any other action to be taken apart from the preparation and implementation of an AQP.

50.        This legislative scheme is in my view carefully and accurately transposed in Regulations 17 and 26 of the 2010 Regulations. It is in my view clear that Regulation 17 transposes the duty under Article 13 into domestic law and places the responsibility which Article 13 places on the member state on the shoulders of the Defendant. Regulation 26 accurately transposes into domestic law the provisions of Article 23. Regulations 17 and 26 read together make clear that the duty of the Secretary of State in relation to ensuring that limit values are not exceeded is to be enforced by the drawing up and implementation of an AQP in the event that exceedances occur to achieve the limit value and ensure any period of time when it is exceeded is resolved within the shortest possible time. It follows that I am unable to read into the legislation any requirement to take particular actions in relation to permits or development consents. Further I am unable to read into the legislation any requirement in the event of the limit values being exceeded other than the remedying of that through the preparation and implementation of an AQP. There is no inconsistency between the obligations in the AQD and the obligations in domestic legislation and no tension between them.” 

The judgment can be found here

James Maurici QC appeared for the Secretary of State.

John Hobson QC appeared for Canterbury CC.

Reuben Taylor QC appeared for the developer Corinthian Mountfield Limited.