R Clientearth v Secretary of State for Environment Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 21 November 2016 |
| Neutral Citation | [2016] EWHC 3613 (Admin) |
| Date | 21 November 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1508/2016 |
[2016] EWHC 3613 (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 Nathalie Lieven QC and Mr Ravi Mehta (instructed by ClientEarth) appeared on behalf of the Claimant
Mr Ian Rogers QC (instructed by the Government Legal Department) appeared on behalf of the Defendant
On 2 November 2016, I handed down judgment in this case. In concluding that judgment, I indicated that I would hear counsel on the appropriate relief. I received detailed written submissions from both parties. I have this morning heard additional oral submissions from Ms Lieven QC, on behalf of the claimants, and Mr Ian Rogers QC, on behalf of the defendant. I have seen a letter from the Mayor of London.
The parties are agreed that I should not order the relief which was originally sought by the claimants, namely the quashing of the 2015 Air Quality Plan, and that that plan ought to remain in place until replaced by the new Air Quality Plan (which presumably will be called the 2017 Air Quality Plan), and which will be prepared by DEFRA in the coming months. I agree. Accordingly, there will be no quashing order.
But there is disagreement on three important issues on which I must now rule. First, it is agreed that I should specify a date by which the draft 2017 Plan must be produced, but there is disagreement as to the appropriate date. The claimant contends for 3 April 2017; the defendant for 24 April 2017. Both parties set out detailed arguments for their respective position in their skeleton arguments.
The burden of completing the substantial task now falls on DEFRA, its ministers and officials, and I do not see that I am in a position to fine-tune their estimate of precisely how long this will take, so as to be in a position to say that the extra three weeks they seek, over the period which would be allowed by the claimants, is unreasonable or inconsistent with their duties under the Directive or regulations. The order will accordingly provide for a draft modified AQP accompanied by the relevant technical information, including details of the modelling techniques and assumptions employed, by 4 pm on Monday, 24 April 2017. A copy should be provided to the claimants.
The second issue concerns the date by which the final AQP should be published and notified to the European Commission. The claimant contends for 10 July 2017; the defendants for 4 September 2017. This argument proceeds on the basis that by the date I have indicated above a draft will have been produced. Thereafter what needs to be done includes the following: putting out the draft for public consultation; considering the product of the consultation; amending the draft as appropriate in the light of the consultation; obtaining the agreement of the devolved authorities to those parts of the plan that would affect them; and obtaining the agreement from ministers to the final version of the plan.
All of this is plainly important. But, in my judgment, the four months and ten days sought by DEFRA is far too leisurely. I repeat my observations in the judgment: the UK remains in breach of this Directive and these regulations and it must be brought into compliance as soon as is possible. That means the Secretary of State must choose a route to compliance which reduces exposure as quickly as possible.
Given the fact that there has already been a consultation on the old plan, which will doubtless have produced useful observations, and given the publicity that this matter has already attracted, and given, most importantly of all, the evidence that exceeding the limits for nitrogen dioxide causes a real risk of substantial harm to a very large number of people, it is my judgment that a shorter consultation period than that which is usually required, and that is proposed by the defendants, would be entirely justified on the facts of this case. Consultation is important, but where public health is at stake it may be necessary to shorten substantially the period for such consultation.
It is my conclusion that the production of a final, compliant air quality report should be regarded as a priority by Government. The date by which the final plan should be published should deliberately be made demanding. With a shorter consultation period, I see no reason why the final report should not be produced and published by 4 pm on Monday, 31 July 2017.
In reaching that conclusion, I take into account all the points made by Mr Rogers as to the difficulties in achieving a...
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R and Others v Secretary of State for Communities and Local Government Canterbury City Council (1st Interested Party) Corinthian Mountfield Ltd (2nd Interested Party)
...modelling which underpinned the modelling of air quality. Following the decision of Garnham J in ClientEarth (No. 2) v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 2740, Professor Peckham provided further observations in respect of the air quality issues. His s......
- R Clientearth v Secretary of State for Environment, Food and Rural Affairs