What To Do About Poor Air Quality? The Shirley Case

In this week of all Brexit weeks it was interesting to see the approach of the Court of Appeal in a case, R (Shirley) v Secretary of State (Court of Appeal, 25 January 2019), which turned on the practical extent of the Secretary of State’s duty to give effect to the objectives of the Air Quality Directive. The UK is under binding commitments in the Air Quality Directive to improve air quality, transposed into domestic law by way of the Air Quality Standards Regulations 2010. Was he required to call in for his own determination a planning application for development that would worsen or prolong breaches of limit values in an Air Quality Management Area (“AQMA”) for nitrogen dioxide or PM10?

Before we turn to the ruling, a quick update may be useful on the continuing saga of the Government’s continued failure to prepare a lawful Air Quality Plan in compliance with its duties under the Air Quality Directive (its deadline having been 1 January 2010) since my 4 November 2016 blog post The UK Government & Air Quality (ahem). At the point I wrote the blog post, the Supreme Court had ordered in April 2015 that the Government should prepare a legally compliant Air Quality Plan by the end of 2015, the Government had purported to publish compliant proposals on 17 December 2015 which were then found to be legally inadequate by Garnham J in his judgment in ClientEarth v Secretary of State (No. 2) (Garnham J, 2 November 2016). He gave the Government a further deadline of 31 July 2017.

The Government purported to comply by that deadline but Garnham J held that attempt too was deficient in a number of respects, in R (ClientEarth) v Secretary of State (No. 3) (Garnham J, 21 February 2018). He made a declaration as to the deficiencies as against the requirements of the Directive and Regulations, ordered the urgent production of a supplement to rectify the deficiencies and that the balance of the plan should remain in force in the meantime to avoid any delay in its implementation. His judgment concluded:

I end this judgment where I began, by considering the history and significance of this litigation. It is now eight years since compliance with the 2008 Directive should have been achieved. This is the third, unsuccessful, attempt the Government has made at devising an AQP which complies with the Directive and the domestic Regulations. Each successful challenge has been mounted by a small charity, for which the costs of such litigation constitute a significant challenge. In the meanwhile, UK citizens have been exposed to significant health risks.

It seems to me that the time has come for the Court to consider exercising a more flexible supervisory jurisdiction in this case than is commonplace. Such an application was made to me when the November 2016 judgment was handed down. I refused it on that occasion, opting for a more conventional form of order. Given present circumstances, however, I would invite submissions from all parties, both in writing and orally, as to whether it would be appropriate for the Court to grant a continuing liberty to apply, so that the Claimant can bring the matter back before the court, in the present proceedings, if there is evidence that either Defendant is falling short in its compliance with the terms of the order of the Court”.

The Government published a supplement to its plan on 5 October 2018 and as far as I know there has been no legal challenge to it or application back to Garnham J pursuant to his liberty to apply. So we may finally now have a legally compliant Air Quality Plan?

In the meantime, the European Commission has commenced infringement proceedings against the UK and other member states for delays in implementing the Directive.

To bring the narrative right up to date, the Government published its Clean Air Strategy on 14 January 2019, setting out proposed measures that will in due course form part of the forthcoming Environment Bill. On an initial reading there seems to be a deliberate shift away from the areas where the Government has found it difficult to comply with the Air Quality Directive, particularly in relation to polluting emissions from vehicles. From the foreword by Michael Gove:

We often think of air pollution as a problem caused by road transport and industrial level burning of fossil fuels. These are two of the central sources of pollution, but industry and government have worked together to remedy many of the worst problems by incentivising the use of clean fuels and investing in new technology. We have already secured a significant reduction in emissions since the 1970s. But now this trajectory has slowed.

Now we need to tackle other sources of air pollutants that damage human health and the environment. Air pollution can be caused by intensive agricultural food production, heating our homes or even cleaning with certain solvents

Whether that is well based is for others to judge.

But perhaps more of that another day and now back to Shirley. The appeal before the Court of Appeal concerned an application by Corinthian Mountfield Limited for planning permission for 4,000 dwellings and associated development that had been resolved to be approved by Canterbury Borough Council.

Dove J had rejected the appellants’ claim for judicial review of the Secretary of State’s decision not to call in the application. The Court of Appeal considered three grounds of appeal:

(1) whether the preparation and implementation of an air quality plan complying with Article 23 of the Air Quality Directive would be a sufficient response to breaches of limit values (ground 1 in the appellant’s notice);


(2) whether the Secretary of State had a duty as “competent authority” to use his planning powers to avoid the worsening or prolongation of breaches of the limit values, and was therefore obliged to call in Corinthian Mountfield’s application for planning permission (ground 2); and


(3) whether it was irrational for the Secretary of State to assume that any errors in the city council’s approach could be put right if it reconsidered the application, or could be brought before the court in a claim for judicial review if planning permission were granted (ground 3)
.”

The point is an important practical one – if a project is likely to increase exceedances of pollutant limit values, does that by itself lead to the risk of call in or legal challenge?

“Is the preparation and implementation of an air quality plan complying with article 23 of the Air Quality Directive a sufficient response to breaches of limit values?

Article 13 of the Directive, transposed by Regulation 17 of the Regulations, requires the Secretary of State to ensure that levels of specified pollutants do not exceed defined limit values. In zones where levels are below the limit values the Secretary of State must “ensure that levels are maintained below those limit values and must endeavour to maintain the best ambient air quality compatible with sustainable development“.

Article 23 of the Directive, transposed by Regulation 26 of the Regulations, requires that where exceedances of annual mean limit values of specified pollutants occur, the Secretary of State must draw up and implement an air quality plan to achieve the limit value.

Dove J had “concluded that when the limit values in the Air Quality Directive are exceeded, if article 13 is read with articles 22 and 23, the preparation and implementation of an air quality plan with a view to overcoming those exceedances and keeping their duration as short as possible is the “specific and bespoke remedy”. There was, he said, “no room within the scheme” of the Air Quality Directive for any “freestanding responsibility” to take any specific action on “permits” or “development consents”. He was “unable to read into the legislation any requirement to take particular actions in relation to permits or development consents”.

For the appellants, Mr Robert McCracken Q.C. submitted that the judge had erred in his understanding of the Air Quality Directive and the 2010 regulations. He had failed to adopt a suitably purposive approach, failed to recognize the high level of environmental protection required by EU law, and failed to follow the approach taken by the Court of Justice of the European Union in relevant authority. He had not grasped that the Air Quality Directive requires the taking of action, not merely the preparation of air quality plans, and that the adoption and implementation of an air quality plan is a necessary but not a sufficient response to breaches of limit values…”

As referred to in my 4 November 2016 blog post, this has been Robert McCracken QC’s position for a long time – indeed in my blog post I included a link to his 2015 legal opinion to that effect.

Lindblom LJ examines in detail the Court of Justice of the European Union case law before agreeing with Dove J and rejecting the “purposive approach” argument:

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 case law does not suggest, for example, that in such circumstances a Member State must ensure that land use planning powers and duties are exercised in a particular way – such as by imposing a moratorium on grants of planning permission for particular forms of development, or for development of a particular scale, whose effect might be to perpetuate or increase exceedances of limit values, or by ensuring that decisions on such proposals are taken only at ministerial level“.

Did the Secretary of State have a duty as “competent authority” to use his planning powers to avoid the worsening or prolongation of breaches of limit values?

Again, the answer was no:

I cannot accept that argument. It finds no support in relevant case law. In my view, as Mr Maurici and Mr Pereira submitted, it is not possible to construe the provisions of the Air Quality Directive and the 2010 regulations as constraining the Secretary of State’s very wide discretion either to call in or not to call in an application for planning permission when the limit values under article 13 have not been complied with, or when an air quality plan under article 23 has not yet been put in place or has proved to be deficient or ineffective. The air quality legislation does not do that. It does not have the effect of narrowing the Secretary of State’s call-in discretion in such circumstances, let alone of transforming that discretion into a duty, or of requiring a particular application for planning permission to be refused. None of the provisions of the Air Quality Directive engages with the process of making decisions to authorize individual projects of development. If a proposed development would cause a limit value to be breached, or delay the remediation of such a breach, or worsen air quality in a particular area, neither the Air Quality Directive nor the 2010 regulations states that planning permission must be withheld or granted only subject to particular conditions. These may of course be material considerations when an application or appeal is decided, and so too the measures in an air quality plan for the relevant zone, if there is one, or in an action plan prepared under the Environment Act 1995. But the Air Quality Directive and the 2010 regulations do not, in those or any other circumstances, compel the decision-maker to refuse planning permission, or impose on the Secretary of State an obligation to make the decision himself.”

Was the Secretary of State’s decision not to call in the application irrational?

Given that planning permission had not yet been granted by the city council, it was open to the council to take the application back to committee if it was not called in.

Lindblom LJ held that the Secretary of State’s freedom to exercise his call-in discretion is considerable. “The Secretary of State also knew that if he did not call in the application, the city council would be able to consider it again, taking account of any further representations made to it, and, with the advice of its officers and professional consultants, revisiting the committee’s resolution to grant planning permission. And if planning permission were to be granted, it could be challenged by a claim for judicial review. It was not perverse for the Secretary of State to have these considerations in mind when he made his decision not to call in.”

Lastly, the Court of Appeal considered and rejected for four reasons the appellants’ submission that a reference should be made on the first ground of appeal to the Court of Justice of the European Union:

⁃ the appeal failed in any event on the other grounds so a decision on the questions in the reference would not be necessary to enable this court to give judgment;

⁃ the issue was in the court’s view “acte clair” (ie reasonably clear and free from doubt)

⁃ a reference would cause unjustifiable delay in a case where the decision under challenge was procedural, not substantive

⁃ a reference was opposed by all four respondents.

Concluding thoughts

The case is an interesting example of the way in which EU law has become so familiar to the lawyers and judges of our domestic courts. Nearly all of our environmental law is EU-derived. Post-Brexit, when EU-derived legislation such as the Air Quality Standards Regulations will continue to apply (unless and until amended or revoked) on a free-standing basis and without the backing of the Directive, it is inconceivable to imagine that we will not all in practice still draw upon the CJEU’s case law to assist in matters of interpretation.

Over time this may change, once our legislation starts to diverge with that of the EU (we see already the deliberately differing objectives and approaches of DEFRA’s Clean Air Strategy) and once differing strands of judicial interpretation start slowly to open up. It’s going to get complicated. Our judges will always be more resistant to the purposive approach to interpretation – legislation should mean what it says – which is why in our common law system it is so important that our laws are precise rather than broad statements of principle in the way that has led to so much litigation in relation to EU Directives.

The case also illustrates the scale of the hurdles to be cleared in persuading our courts to refer issues to the Court of Justice of the European Union. If there had been a reference in Shirley, could we have completely ruled out the prospect of a surprise finding, à la People Over Wind? I’m still grumbling, five years on, about the Supreme Court’s refusal in the HS2 Action Alliance case to refer the Strategic Environmental Assessment issues that we raised to the CJEU. The risk/prospect of referral is generally a low one.

The earlier ClientEarth sequence of cases (within which there was in fact a reference) raises the separate question as to whether it is sufficient for responsibility for compliance with environmental targets to remain with Parliament and whether the proposed Office for Environmental Protection would have sufficient power as against a future Government that is dragging its heels. Would the OEP be able to fulfil that supervisory role that Garnham J has had to take in the ClientEarth litigation?

But in the meantime, it is helpful to have the Court of Appeal’s clarification that non-compliance by the Government with its international responsibilities does not lead to what would effectively been an embargo on any form of development where it could be argued that there might be an adverse effect on air quality in an AQMA, regardless of the local improvement measures to which the relevant local authorities had committed under the Directive and Regulations, and regardless of the usual statutory requirement for decision makers to determine applications in accordance with the development plan unless material considerations indicate otherwise. It would have led to decision-making chaos.

But that shouldn’t let anyone off the hook. The onus really must continue to rest with the Government and local authorities to take the necessary steps to ensure that roadside emissions are reduced to acceptable levels, no matter how politically unpopular the implications (eg further charging zones, making it more expensive and less convenient to use a polluting vehicle and the reverse for users of public transport – and priority being given to pedestrians and cyclists in our cities). The onus must also rest with developers to seek to ensure that their proposals are, in the language of the draft London Plan, air quality neutral or positive.

Clean air may be invisible but surely, one day, it will be seen as a vote winner?

Simon Ricketts, 2 February 2019

Personal views, et cetera

Street Trees

DEFRA published its Protecting and enhancing England’s trees and woodlands consultation paper on 30 December 2018, with a deadline of 28 February 2019 for responses. The proposals include imposing new statutory duties on local authorities:

⁃ “a duty to consult on the felling of street trees

⁃ “a duty to report on tree felling and planting”

Presumably these are intended to be included in the forthcoming Environment Bill and they could justifiably be known as “Sheffield’s Law”. After all they of course have their roots in the peculiar saga there, where the city council and its PFI contractor Amey have been engaged in systematic felling of roadside trees at an unprecedented scale.

I reported in my 17 December 2016 Trees In Court: A Festive Special blog post on the the late Gilbart J’s rejection, in R (Dillner) v Sheffield City Council  (27 April 2016) of a local resident’s challenge to that process. The judge commented: “It may be that those who will be disappointed by the terms of this Judgment will want to see a different legislative regime in place. That is a matter for Parliament, and not for this Court.

The continued felling led to significant protests, with arrests, curiously, made under section section 241 of the Trade Union and Labour Relations Act 1992. (The Independent Office for Police Conduct subsequently found in August 2018 that the arrests and detention were inappropriate and in December 2018 compensation payments were awarded).

The commitment in the Conservative Party’s manifesto in May 2017 surely specifically had the Sheffield situation in mind:

In addition to the 11 million trees we are planting across our nation, we will ensure that 1 million more are planted in our towns and cities, and place new duties on councils to consult when they wish to cut down street trees.” (my emboldening).

On the back of the Gilbart J ruling, an injunction in relation to continuing protests was ordered by Males J in Sheffield City Council v Fairhall and others (15 August 2017) in the following terms:

“Accordingly I order that the three remaining named defendants must not:

1.
(1) enter any safety zone erected around any tree within the area shown edged red on the plan which will be attached to the order (the area of Sheffield City);
(2) seek to prevent the erection of any safety zone;
(3) remain in any safety zone after it is erected;
(4) knowingly leave any vehicle in any safety zone or intentionally place a vehicle in a position so as to prevent the erection of a safety zone; or
(5) encourage, aid, counsel, direct or facilitate anybody else to do any of the matters in paragraphs 1 – 4 above including by posting social media messages.

2. There will in addition be an order in the same terms against persons unknown being persons intending to enter or remain in safety zones erected on public highways in the city of Sheffield. Such an order is appropriate in accordance with the principle established in Hampshire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator Site [2003] EWHC 1738 (Ch).”

Like Gilbart J, Males J distanced himself from the wider issues:

“I must emphasise that this judgment deals solely with the legal question whether the council is entitled to an injunction. That will include consideration of whether as a matter of law the council is entitled to exclude members of the public from safety zones around trees so that those trees can be felled and whether or to what extent those who object to this course are entitled to maintain a presence within safety zones in order to prevent the work from being carried out. However, I express no view, one way or the other, as to the merits of the council’s tree felling programme or the objectors’ campaign. Those are social and environmental questions which are politically controversial and can only be resolved in a political forum. They are not a matter for this court

Following the June 2017 general election, Michael Gove had of course been brought back into the Cabinet as Secretary of State for Environment, Food and Rural Affairs. In March 2018 he was reported by the BBC as having “accused Sheffield City Council of “environmental vandalism” and promised to do “anything required” to end its controversial tree-felling programme.

Felling paused the day after, although the city council renewed its injunction in July 2018, by way of a High Court ruling (His Honour Judge Robinson, 12 July 2018)

The Yorkshire Post reported on 13 December 2018 that the city council now announced a revised tree management strategy, reducing significantly the amount of felling proposed.

So back to the DEFRA consultation proposals.

Street trees‘ are defined as “managed trees lining the highway within the urban environment“. The duty to consult would not apply to other urban trees such as parks or open spaces.

The idea is that the “local authority” (presumably the local highway authority, although this is not made clear – eg presumably TfL in London in relation to the TfL network?) would consult “on every tree proposed for felling during a four week closed consultation period. A notice inviting consultation to be placed on the tree, letters sent to local residents in close proximity to the tree (100m2). If more than 50% of respondents in the closed consultation disagree with the proposal this will trigger a full public consultation.” Full consultation appears to mean “a notice published in the town hall and online“.

Is this workable? Assuming that there would often need to be a full consultation process, how long would this all take, bearing in mind that the consultation responses would then need to be conscientiously considered by the authority, presumably at a relevant committee meeting held in public with officer’s report and so on, before a legally robust decision could be taken?

There would be exemptions, the scope of which could well lead to dispute:

“1. Dangerous: Tree needs to be felled because it presents an immediate danger and work is urgently needed to remove that danger. Trees that immediately affect the operational use of the footway by people – forcing them to use the carriageway – are considered dangerous for the purposes of this policy.

2. Responding to a pest or disease instance:Removal of a tree is a critical partof the implementation of a management or control programme, following notification by regulatory authority in response to a pest or disease instance.

3. Dead.

4. Damaging:Tree needs to be felled because it is causing significant damage to
the apparatus of a statutory undertaker (such as gas, electricity or water) where urgent access is required for repair; or tree needs to be felled because it can be demonstrated that it is causing significant damage and threatens the integrity of a footpath or carriageway to such an extent that it presents an imminent danger.

5. Young Trees Damaged/Failed:Young trees (up to fifteen years old) which will be replaced within two years. The position of the tree has already been established. Consultation could lead to discussion that undermines that decision when replacement is essentially a maintenance management activity

There is a further complication:

“Trees designated as having special historic or cultural significance would automatically be subject to wider public consultation. To meet this definition trees would have to meet one of the following criteria. The tree may be:

• culturally, historically, ecologically significant – such as veteran trees

• linked to a person or event that is culturally or historically significant
For trees that meet this criteria an extraordinary measure/action or level of resource can be taken or dedicated to its preservation. The local authority may initially be unaware of this significance so a full consultation where significance is suspected or raised as an issue is essential
.”

So yet again we are faced with quite a complex, or at least fiddly and fine grained, regime to deliver on a superficially nice idea – and to what end? If Sheffield City Council had followed these procedures the outcomes could well have been the same.

I also find it strange that there is no mention in the document of the town and country planning regime, for example the role of tree preservation orders and the protection provided to trees in conservation areas. Would not amendments to the planning regime not have been more logical?

The separate proposed duty to report on tree felling and replanting raises a further issue. The document is silent about the intended frequency of reporting but let’s assume it is to be annual. This reporting will not just cover street trees but will be much wider:

Local authorities would be required to record on felling and planting activity for which they are both directly and indirectly responsible, including trees which are felled as part of planning decisions.”

So could we see “local authorities” (by which I assume is meant local highway authorities) have to collect data as to how many trees are to be felled as a result of planning decisions by the local planning authority (that are not even on highway land), or will this only apply to unitary authorities? More thinking required!

I have managed to avoid mention of the separate, much more complex, set of proposals within DEFRA’s other current consultation, on biodiversity net gain (2 December 2018). That also has some major potential implications – these days planners’ eyes need to be on DEFRA as much as MHCLG it seems to me.

Simon Ricketts, 5 January 2019

Personal views, et cetera

Photo courtesy of the Woodland Trust