R Clientearth v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 05 July 2017 |
| Neutral Citation | [2017] EWHC 1966 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1508/2016 |
| Date | 05 July 2017 |
[2017] EWHC 1966 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Garnham
CO/1508/2016
Ms N Lieven QC and Mr R Mehta appeared on behalf of the Claimant
Ms K Smith QC and Ms J Morrison appeared on behalf of the Defendant
Mr S Tromans QC appeared on behalf of the Interested Party
By this application, ClientEarth seek an order that the Secretary of State for the Environment, Food and Rural Affairs produces a supplement to the draft air quality plan ("AQP") published on 5 May 2017.
ClientEarth argue that the original draft is defective, first, in failing adequately to identify measures to be applied within the jurisdiction of the devolved administrations of Scotland, Wales and Northern Ireland and second, in failing to reflect the findings set out in the Secretary of State's own technical report which accompanies the plan.
I give this judgment on this application ex tempore given the urgency of the matter.
This application was issued on 31 May 2017. It was issued pursuant to paragraph 3 of my order of 21 November 2016 which granted the parties liberty to apply for further relief relating to issues arising in the course of preparing a modified air quality plan.
The AQP published on 5 May 2017 was made the subject of a public consultation. That consultation continued for six weeks, concluding on 15 June. It attracted, according to the Secretary of State, some 747 responses, including one from ClientEarth, the Claimants, which response substantially replicated the material advanced in support of this application.
It is well-established that there are circumstances in which this court will grant judicial review of a proposal by the executive to take some action. So in R (on the application of Homesun Holdings Ltd) v Secretary of State for Energy and Climate Change [2011] EWHC 3575 (Admin), Mitting J held that in the case of a proposal which could only be affected by an executive decision validated by parliamentary resolution or the absence of a negative resolution or by similar process, the lawfulness of the proposal could be subject to judicial review.
In Homesun, Mitting J identified "the true principle" being that set out in the judgment of Carnwath LJ in R (Shrewsbury and Atcham Borough Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 148 at paragraphs 32 to 33:
i. "Judicial review, generally, is concerned with actions or other events which have, or will have, substantive legal consequences: for example, by conferring new legal rights or powers, or by restricting existing legal rights or interests. Typically there is a process of initiation, consultation, and review, culminating in the formal action or event ("the substantive event") which creates the new legal right or restriction. For example, the substantive event may be the grant of a planning permission, following a formal process of application, consultation and resolution by the determining authority. Although each step in the process may be subject to specific legal requirements, it is only at the stage of the formal grant of planning permission that a new legal right is created.
ii. 33. Judicial review proceedings may come after the substantive event, with a view to having it set aside or "quashed"; or in advance, when it is threatened or in preparation, with a view to having it stayed or "prohibited". In the latter case, the immediate challenge may be directed at decisions or actions which are no more than steps on the way to the substantive event."
It follows that this court has jurisdiction to grant the type of order Ms Lieven for the Claimant seeks. The issue is whether it is appropriate to do so here.
At the heart of my judgment in this case of 2 November 2016 were the conclusions that the proper construction of Article 23 of the ambient air quality directive had three consequences. First, the Secretary of State must aim to achieve compliance by the soonest date possible. Second, he must choose a route to that objective which reduces exposure as quickly as possible. Third, he must take steps which mean meeting the value limits is not just possible but likely.
It is important to emphasise that the first and second of those requirements demand different things. The first is directed at the time by which the objective is to be achieved. The second is directed at the exposure to nitrogen dioxide that persists whilst that final objective is being achieved.
It is also important to note that the then Secretary of State indicated after it was handed down that she accepted the judgment. There was no appeal against it. I am told the new Secretary of State accepts the judgment too. I can proceed, therefore, on the basis that those three conclusions are accepted as correct.
Against that background, I turn to consider Ms Lieven's challenges today. I consider first the complaint about the alleged disconnect between the technical report and the draft plan and consultation document as to the option of employing what are called non-charging clean air zones ("CAZs"). By that expression Ms Lieven refers to CAZz which do not charge a fee for vehicular admission.
Whilst it may yet emerge that in most, perhaps all, cases a non-charging clean air zone will be less effective or effective less quickly, I see no illegality in putting out to consultation the possibility of non-charging CAZs.
I make three points in that regard.
First, Ms Lieven draws attention to the different emphasises in the consultation documents and the technical report produced by the Secretary of State as to the importance of mandating charging CAZs. However, I accept the Secretary of State's submission that the two documents were to be read together. The technical report underpins the consultation documents and consultees can have regard to both in making their responses, as indeed the Claimants themselves have done.
It may be that were the Secretary of State to adopt the current proposals as his final AQP and ClientEarth were to challenge that plan, the distinction between the two documents would be a fruitful basis for scrutinising the final report. But I am quite unable to see how, applying the test enunciated by Mitting J in Homesun and Carnwath LJ in Shrewsbury and Atcham Borough Council, that distinction renders the proposal itself unlawful at this stage.
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The Queen (on the application of Clientearth) No.3 v (1) Secretary of State for Environment, Food and Rural Affairs
...an order that the Secretary of State should produce a supplement to the draft published in May 2017. I refused that application ( [2017] EWHC 1966 (Admin)). 28 The consultation process ended on 15 June by which time some 743 substantive responses had been received. The responses included a......