The Queen (on the application of Clientearth) No.3 v (1) Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 21 February 2018 |
| Neutral Citation | [2018] EWHC 315 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4922/2017 |
| Date | 21 February 2018 |
and
[2018] EWHC 315 (Admin)
Mr Justice Garnham
Case No: CO/4922/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Nathalie Lieven QC & Ravi Mehta (instructed by ClientEarth) for the Claimant
Kassie Smith QC & Julianne Morrison (instructed by Government Legal Department) for the First Defendant
Jonathan Moffett QC (instructed by Government Legal Department) for the Welsh Ministers
Hearing date: 25th January 2018
Introduction
On 26 July 2017 the Department for Environment, Food and Rural Affairs (“DEFRA”) published the “UK plan for tackling roadside nitrogen dioxide concentrations” and associated documents (hereafter “the 2017 Plan”). This was the third attempt by the UK Government to provide an Air Quality Plan (“AQP”) that met its obligations in law.
The first AQP, produced in 2011, was quashed by order of the Supreme Court in 2015. The Government was made the subject of a mandatory order requiring the Secretary of State to prepare new air quality plans in accordance with a defined timetable (see R (on the Application of ClientEarth) v The Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28, 4 All ER 724). The second AQP, produced in purported compliance with the order of the Supreme Court, was published on 17 December 2015.
In a judgment dated 2 November 2016 ( [2016] EWHC 2740 (Admin), (“the November 2016 judgment”), I held that the 2015 plan was also deficient. I made a direction that DEFRA must publish a new AQP, which complied with the relevant EU Directive and domestic Regulations, by 31 July 2017. It was in purported compliance with that order that DEFRA published the 2017 Plan.
The Claimant in these proceedings is “ClientEarth”, a registered charity, whose objects include promoting and encouraging the “ enhancement, restoration, conservation and protection of the environment, including the protection of human health, for the public benefit”. By these proceedings, the Claimant challenges the 2017 Plan on the ground that it too failed to meet DEFRA's legal obligation. ClientEarth was also the claimant in the two previous judicial review cases. The Defendants are the Secretaries of State for Food, Environment and Rural Affair, and for Transport, and the Welsh Ministers. The Secretary of State for Food, Environment and Rural Affair has taken the lead for the Defendants in this case (and I refer to him hereafter as “the Secretary of State”).
Proper and timely compliance with the law in this field matters. It matters, first, because the Government is as much subject of the law as any citizen or any other body in the UK. Accordingly, it is obliged to comply with the Directive and the Regulations and with the orders of the court. Second, it matters because, as is common ground between the parties to this litigation, a failure to comply with these legal requirements exposes the citizens of the UK to a real and persistent risk of significant harm. The 2017 Plan says that “ poor air quality is the largest environmental risk to public health in the UK. It is known to have more severe effects on vulnerable groups, for example the elderly, children and people already suffering from pre-existing health conditions such as respiratory and cardiovascular conditions”. As I pointed out in the November 2016 judgment, DEFRA's own analysis has suggested that exposure to nitrogen dioxide (NO 2) has an effect on mortality “ equivalent to 23,500 deaths” every year.
The Legislative Scheme
At paragraphs 6–15 of the November 2016 judgment, I set out and explained the legislative background relevant to the arguments in that case. That background remains relevant to this challenge but it is not necessary to repeat all that detail here. It suffices for me to note the following provisions, all of which are cited in the November 2016 judgment:
Article 13 of Directive 2008/50/EC (“the 2008 Directive”) 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 23 provides that:
“ Where, in given zones or agglomerations, the levels of pollutants in ambient air exceeds any limit value…member states shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value…specified in Annexes XI and XIV.
In the event of exceedances of those values for which the attainment deadlines have already expired the air quality plan shall set out appropriate measures, so that the exceedance period can be kept as short as possible.”
Annex XI to the 2008 Directive imposes a limit value for nitrogen dioxide of an average of 200ug/m 3 in any given hour (which is not to be exceeded more than 18 times in a calendar year) and an average of 40ug/m 3 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 the information required is detail of those measures or projects adopted with the view to reducing pollution. The Plan must list and describe all the measures set out in the project, set out a timetable for implementation, provide an estimate of the improvement of air quality planned and the expected time required to obtain that objective.
The 2008 Directive was brought into domestic law in the UK by means of four sets of regulations, one for each of the home nations. Regulation 26 of the English Regulations (the Air Quality Standards Regulations 2010 (2010/1001)) requires the Secretary of State, when the levels of nitrogen dioxide (amongst other pollutants) exceeds any limit value, to draw up and implement an AQP so as to achieve that limit value.
Regulation 26 also specifies that the AQP must “ include measures intended to ensure compliance with any relevant limit value within the shortest possible time….” and “ must include the information listed in Schedule 8.”
In addition to the provisions referred to in the November 2016 judgment, it is material to note the following five additional provisions.
First, paragraph 8 of Schedule 8 (which, as noted above, is referred to in Regulation 26 of the English Regulations) specifies, as part of the information which must be included in air quality plans, the following:
“ Details of those measures or objectives adopted with a view to reducing pollution following 11 June 2008 — (a) listing and description of all the measures set out in the project; (b) the timetable for implementation; (c) estimate of the improvement of air quality planned and of the expected time required to attain these objectives”
Second, the Air Quality Standards (Wales) Regulations 2010 (2010/1433) impose, on the Welsh Ministers, duties in respect of Wales equivalent to those imposed on the Secretary of State in respect of England. In particular, regulations 13 and 20 of those Regulations provide:
“13.(1) …the Welsh ministers must ensure levels of …nitrogen dioxide…do not exceed the limit values set out in Schedule 1 in any zone…
(Schedule 1 imposes the same limit values as are imposed in England.)
20. Where the level of …nitrogen dioxide…in ambient air exceeds any of the limit values in Schedule 1 in any zone…the Welsh Ministers must draw up and implement an air quality plan to achieve the relevant limit value…in that zone.”
Third, Articles 6–7 of the 2008 Directive makes provision for assessment criteria and sampling points in order to ensure consistent monitoring of ambient air quality across the EU.
Fourth, in December 2011, the European Commission published a Commission Implementing Decision laying down rules for the 2008 Directive as regards reporting of ambient air quality. Paragraph 1 of Article 13 of that decision provides that:
“ Member States shall make available the information set out in Parts…K of Annex II to this Decision on air quality plans as required by Article 23 of Directive 2008/50/EC including (a) the mandatory elements of the air quality plan as listed pursuant to Article 23 of the Directive 2008/50/EC in Section A of Annex XV to Directive 2008/50/EC…”
Part K requires the provision of information as to matters including:
“(14) Planned implementation: start and end date
(15) Date when the measure is planned to take full effect
(16) Other key implementation dates
(17) Indicator for monitoring progress
(18) Reduction in annual emissions due to applied measure…”
Finally, s85 of the Environment Act 1995 provides, as material:
“( 3) If it appears to the [the Secretary of State]
(a) that air quality standards or objectives are not being achieved, or are not likely within the relevant period to be achieved, within the area of a local authority…
the appropriate authority may give directions to the local authority requiring it to take such steps as may be specified in the directions…
(7) It is the duty of a local authority to comply with any direction given to it under or by virtue of this Part.”
It is against that statutory framework that the new AQP was developed.
Developing the 2017 Air Quality Plan
Shortly after the November 2016 judgment, DEFRA set about the task of preparing a new AQP.
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