R (on the application of Emily Shirley and Michael Rundell) v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Singh,Lord Justice Coulson |
| Judgment Date | 25 January 2019 |
| Neutral Citation | [2019] EWCA Civ 22 |
| Docket Number | Case No: C1/2017/2947 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 January 2019 |
[2019] EWCA Civ 22
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE DOVE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
Lord Justice Singh
and
Lord Justice Coulson
Case No: C1/2017/2947
and
Mr Robert McCracken Q.C. and Mr Charles Streeten (instructed by Leigh Day Solicitors) for the Appellants
Mr James Maurici Q.C. and Mr Alistair Mills (instructed by the Government Legal Department) for the Respondent
Mr James Pereira Q.C. (instructed by Canterbury City Council) for the First Interested Party
Mr Reuben Taylor Q.C. (instructed by Clyde & Co.) for the Second Interested Party
Hearing dates: 18 and 19 September 2018
Judgment Approved by the court for handing down
(subject to editorial corrections)
Introduction
Under Directive 2008/50/EC “on ambient air quality and cleaner air for Europe” (“the Air Quality Directive”) and the Air Quality Standards Regulations 2010 (“the 2010 regulations”) the United Kingdom is subject to binding commitments aimed at improving air quality. As the ClientEarth proceedings have shown, the courts in this jurisdiction will enforce those commitments when it is legally possible and necessary to do so (see, most recently, R. (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs (No.2) [2017] P.T.S.R. 203 and R. (on the application of ClientEarth) v Secretary of State for Environment, Food and Rural Affairs (No.3) [2018] Env. L.R. 21). The central question in this case arises against that background. It is a narrow question. Did the Secretary of State for Communities and Local Government – now the Secretary of State for Housing, Communities and Local Government – act unlawfully, contrary to the legislative regime for air quality, when he decided not to call in for his own determination a proposal for a large development of housing in Canterbury?
The appellants, Ms Emily Shirley and Dr Michael Rundell, appeal against the order of Dove J., dated 23 September 2017, dismissing their claim for judicial review of the decision of the respondent, the Secretary of State, on 29 December 2016, not to call in under section 77 of the Town and Country Planning Act 1990 an application for planning permission for 4,000 dwellings and other development on land at New Dover Road, to the south- east of the city. The interested parties are the local planning authority, Canterbury City Council, and the applicant for planning permission, Corinthian Mountfield Ltd.
Permission to apply for judicial review was granted on three of the four grounds originally pleaded. The first ground was that the Secretary of State, in making his decision not to call in the application, failed to take into account his obligation under the Air Quality Directive to bring air quality into compliance with the relevant threshold values, disregarded his responsibilities as “competent authority” in England, and neglected the requirement under the Air Quality Directive to achieve the threshold exposure value for nitrogen dioxide within as short a time as possible. The second ground was that the Secretary of State's decision was irrational. The third was that it was perverse for him to contend that any error of law on his part could be remedied either by raising any concerns over air quality with the city council while the application for planning permission was still undetermined, or by challenging the grant of permission by a claim for judicial review. Dove J. rejected all three grounds. Permission to appeal was granted by Arden L.J., as she then was, on 18 June 2018.
The issues in the appeal
There are three grounds of appeal, which raise these main issues:
(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 decision under challenge
In April 2006 the city council declared an Air Quality Management Area (“AQMA”) along a stretch of the A28 between Broad Street and Military Road, after high levels of nitrogen dioxide had been recorded there. The AQMA was extended in November 2011, to include most of the area within the city centre ring road.
Corinthian Mountfield made their application for planning permission on 4 March 2016. One of the documents submitted as part of the environmental statement was an air quality assessment. Its conclusions were criticized by Professor Stephen Peckham, Professor of Health Policy at the University of Kent, in a report dated 25 March 2016. It was reviewed by the city council's air quality consultants. An addendum was produced on 12 August 2016. This too was criticized by Professor Peckham, in a report dated 23 September 2016. When the application went before the city council's Planning Committee on 13 December 2016, Professor Peckham addressed the committee.
The committee had before it a report of the city council's Planning Applications Manager, recommending approval. The officer's report contained a section dealing with the likely effects of the proposed development on air quality. She reminded the committee that “[the] importance of improving air quality in areas of the district has become increasingly apparent over recent years”, and that “[legislation] has been introduced at a European level and at national level in the past decade with the aim of protecting human health and the environment by avoiding, reducing or preventing harmful concentrations of air pollution” (paragraph 322). She acknowledged that “[the] scale of the proposed development has the potential to adversely affect air quality during both the construction and operational phases”. She referred to Corinthian Mountfield's air quality assessment, and to the discussions between Corinthian Mountfield and the city council's Environmental Protection Section and its air quality consultants (paragraph 324).
The officer told the committee there were “potential adverse impacts upon local air quality during the construction phase, mainly from dust and fine particulate matter (PM10) and additional construction traffic vehicle movements”. But these would be “temporary” and could be “mitigated as far as possible through measures secured by condition requiring measures set out in the Environmental Statement as part of the Construction Environmental Management Plan (CEMP)”. It was “not expected that the volume of dust or construction traffic from this development, or combined with other construction sites, would have a significant adverse impact upon air quality” (paragraph 325).
After it had emerged that the impact of the development on air quality might have been underestimated, the city council had required Corinthian Mountfield to undertake additional modelling work (paragraph 326). The officer said it was “important to recognise that, in accordance with official guidance from Defra, the baseline concentration in 2031 at [the St Dunstan's] junction without the South Canterbury development is predicted to be 37.2µg/m3, only marginally below the limit value of 40µg/m3”. But she concluded that, in either of the two options considered, the effect of the development at the St Dunstan's junction would be “only 0.8µg/m3 resulting in a 2031 ‘with’ development concentration of 38.0µg/m3”, which, she said, “equates to a very low 2% increase” in nitrogen dioxide (paragraph 327). It was “predicted that by 2031, and taking into account background traffic growth, St Dunstan's junction would be removed from any [AQMA], given the expected general decrease in vehicle emissions levels by 2031 in line with official guidance from Defra”. Even in “an overly conservative scenario, based upon the assumption that road traffic emissions will not improve between 2014 and 2031, … the proposed development accounted for only 2% increase in NO2” (paragraph 328). The city council had required Corinthian Mountfield “to put together a proposed mitigation package in relation to air quality impacts, in line with adopted Local Plan policy C39 and draft Local Plan policy QL11”. And “to mitigate air quality impacts, [it had] requested additional air quality mitigation measures”. These had been agreed by Corinthian Mountfield at a cost of approximately £3.7million, and would include the installation of domestic electric vehicle charging points in both the residential and “commercial/retail” areas, the “monitoring of St George's Place …” and “the provision of an electric bicycle per dwelling …” (paragraph 329).
The officer therefore advised the committee (in paragraphs 330 to 332):
“330. The Council is satisfied that the measures outlined above will mitigate air quality impacts arising from the proposed development, and these will be secured through the legal agreement. Furthermore, these measures will assist in achieving modal shift in relation to cycle use, and provide electric vehicle charging points in properties to...
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