The UK Government & Air Quality (ahem)

The saga over the UK government’s non-compliance with air quality standards has casualties: a recent study  estimated that around 40,000 premature deaths are caused per year due to air pollution.


The government has been in breach of the Air Quality Directive  since 1 January 2010, by failing to take measures to ensure defined maximum limits of nitrogen dioxide are not exceeded. Limits are currently exceeded in 38 out of 43 zones in the country (each zone representing a conurbation with a population exceeding 250,000). By way of example, acceptable levels are not expected to be realised in London until 2025. 
The Supreme Court in R (ClientEarth) v Secretary of State  (29 April 2015) made a “mandatory order requiring the Secretary of State to prepare new air quality plans under article 23(1), in accordance with a defined timetable, to end with delivery of the revised plans to the Commission not later than 31 December 2015”. 
The Government purported to comply with the order by way of an announcement on 17 December 2015  the main thrust of which was the introduction of Clean Air Zones in Birmingham, Leeds, Nottingham, Derby and Southampton by 2020, within which zones the most polluting vehicles would be discouraged through charging schemes. 
ClientEarth then embarked on a second set of proceedings, challenging the proposals on two grounds:
– they did not meet the Directive’s requirement that exceedance periods be kept “as short as possible”

– The government “gave disproportionate and unlawful weight to cost and political sensitivity“.

The factual background and law are set out in detail in Nathalie Lieven QC’s skeleton argument for ClientEarth.
In a bad week for the Government Legal Department, the High Court found for the claimant in a robust judgment by Garnham J handed down on 2 November 2016 (ClientEarth (no 2) v Secretary of State).

Some interesting passages:
Para 50: “…I reject any suggestion that the state can have any regard to cost in fixing the target date for compliance or in determining the route by which the compliance can be achieved where one route produces results quicker than another. In those respects the determining consideration has to be the efficacy of the measure in question and not their cost.”
Para 53: “…implicit in the obligation “to ensure” is an obligation to take steps which mean meeting the value limits is not just possible, but likely.”
Para 69: “Whatever the reason for selecting 2020 may have been, however, I am satisfied that the department erred in law in selecting so distant a date. The problem of reducing nitrogen dioxide levels was urgent and the plan to do so should have been aimed at achieving compliance in the shortest possible time, regardless of administrative inconvenience or the costs of making the necessary investigations.”
Para 86: “…In my judgement, the [Air Quality Plan] did not identify measures which would ensure that the exceedance period would be kept as short as possible; instead it identified measures which, if very optimistic forecasts happened to be proved right and emerging data happened to be wrong, might achieve compliance. To adopt a plan based on such assumptions was to breach both the Directive and the Regulations.”
Para 89: “…it seems to me likely that fixing on a more proximate compliance target date and adopting a less optimistic assumption for likely emissions might well mean that CAZs are required in more cities, but ultimately that will depend on the outcome of further modelling.”
The judge’s conclusions are set out in para 95: 
“i)  that the proper construction of Article 23 means that the Secretary of State must aim to achieve compliance by the soonest date possible, that she must choose a route to that objective which reduces exposure as quickly as possible, and that she must take steps which mean meeting the value limits is not just possible, but likely.

ii)  that the Secretary of State fell into error in fixing on a projected compliance date of 2020 (and 2025 for London); 


iii)  that the Secretary of State fell into error by adopting too optimistic a model for future emissions; and 


iv)  that it would be appropriate to make a declaration that the 2015 AQP fails to comply with Article 23(1) of the Directive and Regulation 26(2) of the Air Quality Standards Regulations 2010, and an order quashing the plan. “

Despite what the Daily Mail may think, the judge did not prescribe specific steps for the government to take, rejecting Nathalie Lieven’s examples of “fiscal measures to disincentivise the use of diesel cars and vans, locally targeted scrappage schemes, targeted vehicle retrofitting schemes and measures specifically targeting diesel cars, which she suggested ought to be adopted so as either to make more certain the achievement of the objectives in the Directive or advance the date of compliance“. How the limits are to be complied with is for the government to decide.


For a detailed analysis I recommend David Hart QC’s blog post.

The ruling led to a debate in the House of Commons on 3 November 2016. The minister stated: “We accept the judgment of the court and will now carefully consider it, and our next steps, in detail“. Does “accept” mean no appeal? We shall see. 
What does the ruling mean for planning decisions?
The government’s Planning Practice Guidance has a useful section on air quality.

However Robert McCracken QC’s 6 October 2015 opinion has been widely circulated as somewhat of a lobbying document for Clean Air in London, urging a more restrictive approach. It postulates that:
– because of the government’s breaches of the Air Quality Directive, LPAs have a duty in their decision-making to seek to achieve compliance with the Directive’s limit values

– where a development would cause a breach in the locality, would make significantly worse an existing breach or delay the achievement of compliance with limit values, they must refuse permission

– even where limit values are not exceeded in the locality, LPAs must try to prevent developments from worsening air quality and to achieve best air quality. 

The opinion relies on the CJEU’s ruling in Naturschutz Deutschland v Germany  (1 July 2015), a case about water standards under the EU Water Framework Directive. The conclusions reached in the opinion would now need to be tempered by the High Court’s ruling in the Enderby Wharf cruise liner terminal case, PS by his litigation friend TS v Royal Borough of Greenwich  (Collins J, 3 August 2016), where a claim that the LPA failed to consider and give effect to the need to ensure that air quality standards were met was unsuccessful – particularly as the opinion specifically refers to the cruise liner proposal by way of example and suggests, not borne out by the case, that the permission would only be lawful with a Grampian condition preventing use of the terminal until air quality could be shown to be acceptable. 

However (particularly following the latest ClientEarth ruling), in order to minimise the risk of judicial review, undoubtedly care is needed in relation to the analysis and assessment of any project that is in a location where nitrogen dioxide values are exceeded, would be exceeded as a result of the scheme, or would be significantly increased. There is obviously also a read across to the question of Heathrow expansion…
Simon Ricketts 4.11.16

Personal views, et cetera

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