Air pollution – Directive 2008/50/EC – Limits on nitrogen dioxide levels in outdoor air – UK not complying with mandatory limits by deadline imposed by directive – Air quality plans drafted in connection with applications for time extension under articles 22 and 23 – Whether appellant entitled to declaration of non-compliance with article 13 – Declaration granted – Questions referred to Court of Justice of European Union
In 2010, mandatory limits came into force, under article 13 of Directive 2008/50/EC (the Air Quality Directive), specifying the permissible levels of nitrogen dioxide in outdoor air throughout the “zones and agglomerations” of the United Kingdom. Those limits were based on scientific assessments of the risks to human health associated with exposure to nitrogen dioxide. The main sources of nitrogen dioxide in most urban areas of the UK were road traffic and domestic heating. Article 22 provided for time extensions to be sought, for a maximum of five years, if the limit values could not be achieved by the deadline in a given zone or agglomeration; in that event, the member state was to submit an air quality plan to the European Commission, under article 23, showing how the limit value would be achieved before the new deadline.
In 2010, 40 of the 43 zones or agglomerations in the UK were in breach of the mandatory limit values. Draft air quality plans published by the respondent secretary of state in June 2011 indicated that compliance in 17 zones and agglomerations would not be achieved until after 2015; 16 zones were expected to achieve compliance between 2015 and 2020, while compliance in Greater London was expected by 2025.
The appellant brought judicial review proceedings, seeking a declaration that the UK was in breach of its obligations to comply with the nitrogen dioxide limits provided for in article 13 and a mandatory order requiring the respondent to revise the drafts so as to ensure that compliance was achieved by 2015 at the latest. The court held that article 22 was discretionary, refused to make a mandatory order, and also refused declaratory relief on the ground that it would serve no purpose other than to state that which the respondent already conceded: see [2011] EWHC 3623 (Admin). That decision was subsequently upheld by the Court of Appeal: see [2012] EWCA Civ 897. The appellant appealed to the Supreme Court.
Held: The appeal was allowed.
(1) It was appropriate to make the declaration sought since the relevant breach of article 13 had been clearly established. The fact that the breach had been conceded was not a sufficient reason for declining to grant a declaration where there were no other discretionary bars to the grant of relief. Such an order was appropriate both as a formal statement of the legal position and also to make clear that, regardless of arguments about the effects of articles 22 and 23, the way was open to immediate enforcement at national or European level.
(2) Other issues in the case raised difficult questions of European law, the determination of which required the guidance of the Court of Justice of the European Union (CJEU). The following questions were accordingly referred to the CJEU: (i) where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide could not be achieved by the deadline of January 2010 specified in Annex XI of the Air Quality Directive, was a member state obliged to seek postponement of the deadline in accordance with article 22? (ii) if so, in what circumstances, if any, might a member state be relieved of that obligation? (ii) if the answer to (i) was no, and a member state was not obliged to seek postponement, to what extent were the obligations of a member state that had failed to comply with article 22 affected by article 23? (iv) in the event of non-compliance with article 13, and in the absence of an application under article 22, what remedies, if any, was a national court obliged to provide as a matter of European law.
Dinah Rose QC, Emma Dixon and Ben Jaffey (instructed by Client Earth) appeared for the appellant; Kassie Smith (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
