Clientearth (No.2) v Secretary of State for the Environment, Food and Rural Affairs Mayor of London and Others (Interested Parties)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr. Justice Garnham
Judgment Date02 November 2016
Neutral Citation[2016] EWHC 2740 (Admin)
Docket NumberCase No: CO/1508/2016
Date02 November 2016

[2016] EWHC 2740 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Mr Justice Garnham

Case No: CO/1508/2016

Clientearth (No.2)
Secretary of State for the Environment, Food and Rural Affairs


Mayor of London
Scottish Ministers
Welsh Ministers
Secretary of State for Transport
Interested Parties

Nathalie Lieven QC, Ben Jaffey and Ravi Mehta (instructed by ClientEarth) for the Claimant

Stephen Tromans QC and Rose Grogan (instructed by Transport For London In-House Solicitors) for the Mayor of London

Kassie Smith QC and Julianne Kerr Morrison (instructed by Government Legal Department) for the Defendant

Hearing dates: 18th & 19th October 2016

Approved Judgment

Mr. Justice Garnham



Nitrogen dioxide is a gas produced by the combustion of fuel at high temperature in the presence of oxygen. Exposure to nitrogen dioxide in the air carries with it significant risks to human health. A recent analysis from Department for the Environment, Food and Rural Affairs ("DEFRA") estimates that the effects of exposure to nitrogen dioxide has " an effect on mortality equivalent to 23,500 deaths annually in the UK…"


Recognising those risks, EU law seeks to control that exposure by imposing limits on ambient nitrogen dioxide in the territories of Member States and, when limits are exceeded, requiring the publication of Air Quality Plans ("AQPs") aimed at reducing that exposure.


In previous proceedings between the parties, in which the claimant, ClientEarth, challenged previous AQPs produced by the United Kingdom Government, the Supreme Court made a declaration that the UK was in breach of Article 13 of the Air Quality Directive (2008/50/EC). In his judgment of April 2015 granting that declaration, Lord Carnwath, with whom the other members of the Court agreed, said (at paragraph 31), " The new government, whatever its political complexion, should be left in no doubt as to the need for immediate action to address this issue."


On 17 December 2015, in purported compliance with the order of the Supreme Court and the provisions of the Directive, DEFRA published the Government's 2015 Air Quality Plan which addressed the need to reduce nitrogen dioxide emissions.


Relying on EU law, and the domestic regulations which give effect to it, ClientEarth challenges the lawfulness of that plan. It seeks a declaration that this plan, like its predecessor, 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. The defendant, the Secretary of State for Environment, Food and Rural Affairs, opposes the claim. The Mayor of London, an interested party, supports the position of ClientEarth.

The Legislative Scheme


The origin of the current EU legislation framework governing air quality was Council Directive 96/62/EC. The aim of that Directive was to define and establish objectives for ambient air quality, to facilitate the assessment of ambient air quality in Member States, to obtain information on ambient air quality and to maintain or improve ambient air quality. It introduced concepts, such as " air quality plans", " limit value, and " target value", devised for the measurement and management of air quality, which concepts were adopted in subsequent Directives.


In 1999 a second Council Directive, Directive 1999/30/EC, was introduced with the aim of imposing limit values for particular pollutants, including nitrogen dioxide (NO2). In 2008 a third directive, Directive 2008/50/EC, repealed the two previous directives, but reproduced some of the central features of those provisions. It is that Directive which is at the heart of the present challenge.


The preamble to the 2008 Directive included the following:



(2) In order to protect human health and the environment as a whole, it is particularly important to combat emissions of pollutants at source and to identify and implement the most effective emission reduction measures at local, national and Community level. Therefore, emissions of harmful air pollutants should be avoided, prevented or reduced and appropriate objectives set for ambient air quality taking into account the relevant World Health Organisation standards, guidelines and programmes…

(3)[Previous Directives]…need to be substantially revised to incorporate the latest health and scientific developments and the experience of the Member States…

(30) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to promote the integration into the policies of the Union of a high level of environmental protection and the improvement of the quality of the environment in accordance with the principle of sustainable development as laid down in Article 37 of the Charter of Fundamental Rights of the European Union."


The articles of the Directive relevant to the present proceedings include Article 2, which adopts definitions from earlier Directives, including the following:

"ambient air" shall mean outdoor air in the troposphere, excluding workplaces…

"limit value" shall mean a level fixed on the basis of scientific knowledge, with the aim of avoiding, preventing or reducing harmful effects on human health and /or the environment as a whole, to be attained within a given period and not to be exceeded once attained;

"air quality plans" shall mean plans that set out measures in order to attain the limit values or target values;

"margin of tolerance" shall mean the percentage of the limit value by which that value may be exceeded subject to the conditions laid down in this Directive;

"target value" shall mean a level fixed with the aim of avoiding preventing or reducing harmful effects on human health and/or the environment as a whole to be attained where possible over a given period;

"zone" shall mean part of the territory of a member state, as delimited by that member states for the purposes of air quality assessment and management;

"agglomeration" shall mean a zone that is a conurbation with a population concentration in excess of 250,00 inhabitants or, where the population concentration is 250,000 inhabitants or less, with a given population density per km 2 to be established by the Member States.


Article 13 imposes limit values and alert thresholds for the protection of human health. It provides:

"1. Member States shall ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.

In respect of nitrogen dioxide and benzene the limit values, specified in Annex XI may not be exceeded from the date specified therein."


Article 22 provided for postponement of attainment deadlines and exemption from the obligation to apply certain limit values.

"1. Where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified in Annex XI, a Member State may postpone those deadlines by a maximum of five years for that particular zone or agglomeration, on condition that an air quality plan is established in accordance with Article 23 for the zone or agglomeration to which the postponement would apply; such air quality plan shall be supplemented by the information listed in Section B of Annex XV related to the pollutants concerned and shall demonstrate how conformity will be achieved with the limit values before the new deadline."


Article 23, on which much of the present claim turns, provides for AQPs:

1. Where, in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value or target value specified in Annexes XI and XIV.

In the event of exceedances of those limit values for which the attainment deadline is already expired, the air quality plans shall set out appropriate measures, so that the exceedance period can be kept as short as possible. The air quality plans may additionally include specific measures aiming at the protection of sensitive population groups, including children.



Annex XI sets out limit values for the protection of human health. For nitrogen dioxide the limit value in any given hour is 200ug/m 3, which is not to be exceeded more than 18 times in a calendar year, and 40ug/m3 which applies to each calendar year.


Annex XV sets out information to be included in the local, regional or national air quality plans for improvement in ambient air quality. Amongst that information there is required to be detail of those measures or projects adopted with the view to reducing pollution which list and describe all the measures set out in the project, set out a timetable for implementation and provide an estimate of the improvement of air quality planned and the expected time required to obtain that objective.


The Directive was brought into domestic law in the UK by means of four sets of Regulations, one for each of the home nations. Those for England are the most pertinent for this case. Regulation 26 of the Air Quality Standards Regulations (2010/1001) requires the drawing up of AQPs. It provides, as is material:

"(1) Where the levels of sulphur...

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