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The Court of Appeal (Lindblom, Singh and Coulson LJJ) has dismissed the Appellants’ appeal in R (Shirley) v SSHCLG, Canterbury CC and Corinthian Mountfield Ltd [2019] EWCA Civ 22. The Appellants appealed against the decision of Dove J [2018] JPL 298, dismissing their judicial review of the Secretary of State’s refusal to call in a planning application for major development to the south-east of Canterbury. The Appellants argued that, given the role of the Secretary of State under the Air Quality Standards Regulations 2010, he had a particular duty to call in the application under s.77 of the Town and Country Planning Act 1990. This argument was rejected. The Secretary of State’s discretion under s.77 is broad, and the wording of the Regulations did not require a call in. Neither was the Secretary of State’s decision irrational. Dove J had held that the Air Quality Directive required Member States to adopt an air quality plan in case of breach of Article 13 concerning limit values. It did not necessitate any other particular steps, such as the refusal of particular applications for planning permission. The Appellants challenged this conclusion before the Court of Appeal. The Court of Appeal found that this ground of appeal was not necessary to decide the appeal, but nevertheless found against the Appellants:
“Dove J.’s description of article 23 as providing the “specific and bespoke remedy” for a breach of article 13 therefore seems apt. This does not mean that Member States may not also adopt other measures to address a breach of article 13, in addition to preparing and putting into effect an air quality plan complying with article 23. But nor does it mean that Member States are compelled by any provision of the Air Quality Directive to do that. A demonstrable breach of article 13 does not generate some unspecified obligation beyond the preparation and implementation of an air quality plan that complies with article 23.”
The Court of Appeal declined to make a reference to the CJEU. James Maurici QC and Alistair Mills appeared for the Secretary of State for Housing, Communities and Local Government, instructed by the Government Legal Department Reuben Taylor QC appeared for Corinthian Mountfield Ltd, instructed by Clyde and Co.