Court of Appeal hears appeal on interpretation of the Air Quality Directive in call-in judicial review

Today the Court of Appeal finished hearing an appeal against the decision of Dove J. in R (Shirley) v SSCLG [2017] EWHC 2306 (Admin). The case arises from 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. Dove J. dismissed the claim. The appeal raises questions about the proper interpretation of the EU Air Quality Directive 2008/50/EC (“AQD”) as implemented by the Air Quality Standards Regulations 2010 (‘AQR’). The issues raised by the Appellants include the potential application of the AQD and AQR to planning decision making on individual planning applications. The Appellant contends on the appeal that:

1. The learned judge erred in failing to hold that the preparation of an Air Quality Plan was, although necessary, not a sufficient response to breaches of the limit values of the AQD;
2. The learned judge erred in failing to hold that the Secretary of State had a duty as competent authority to use his planning powers to avoid worsening or prolongation of  breaches of the limit values of the AQD;
3. The learned judge erred in holding that it was not irrational for the Secretary of State to refuse to call in on the basis that  any matters of substantive concern in the approach of Canterbury City Council could be remedied by a reconsideration by Canterbury City Council or by judicial review.

Permission was given by Arden LJ. The case was heard by Lindblom LJ, Coulson LJ and Singh LJ. Judgment has been reserved. James Maurici QC and Alistair Mills appeared for the Secretary of State Reuben Taylor QC appeared for the developer Corinthian Mountfield Limited.