R (on the application of Shirley and another) v Secretary of State for Housing, Communities and Local Government – Town and country planning – Environment – Air quality – Developer applying for planning permission for substantial residential development – Objectors asking secretary of state to call in application for determination – Secretary of state refusing to call in application – Claim for judicial review dismissed – Objectors appealing – Whether Air Quality Directive requiring secretary of state to take steps beyond ensuring preparation and implementation of air quality plan – Whether secretary of state under duty to call in application – Whether decision not to call in application irrational – Appeal dismissed
The second interested party developer applied for planning permission for the construction of 4,000 dwellings on land at New Dover Road, to the south-east of Canterbury. The site was within an air quality management area for which an air quality plan had been established within the meaning of article 23 of Council Directive 2008/50 (the Air Quality Directive) and article 13 of the Air Quality Standards Regulations 2010 which required member states to ensure certain limit values in relation to ambient air for the protection of human health.
The planning committee of the first interested party local authority was advised about potential adverse impacts on local air quality during the construction phase of the proposed development. However, the advice was that the adverse impacts would be temporary and capable of mitigation. Taking all factors into account, the proposed development would provide housing that was required in the Canterbury district and the necessary infrastructure to support it.
The appellant objectors asked the respondent secretary of state to call in the application for his own determination pursuant to section 77 of the Town and Country Planning Act 1990 on the grounds that the issues raised were of national importance and concerned material conflicts with national policy on important matters. The respondent refused to call in the application. The High Court dismissed the appellants’ application for judicial review of that decision: [2017] EWHC 2306 (Admin).
The appellants appealed. The issues were: (i) whether the preparation and implementation of an air quality plan complying with article 23 of the Air Quality Directive was a sufficient response to breaches of limit values; (ii) whether the respondent 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 obliged to call in the planning permission; and (iii) whether the respondent’s decision not to call in application was irrational.
Held: The appeal was dismissed.
(1) The judge was right to conclude that the preparation and implementation of an air quality plan complying with article 23 was the relevant specific remedy provided for by the Air Quality Directive. Article 23 specified the steps a member state had to take to achieve compliance with limit values. The judge’s description of article 23 as providing the “specific and bespoke remedy” for a breach of article 13 was apt. A member state’s failure to comply with the requirements in article 13 attracted the consequences explicitly provided for in article 23 which did not require any steps beyond the preparation and implementation of a suitable plan, such as to require the member states to exercise their planning powers and duties in a particular way by ensuring that decisions on such proposals were taken only at ministerial level: R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2013] UKSC 25 followed.
(2) It was not possible to construe the Air Quality Directive and the 2010 Regulations as constraining the respondent’s very wide discretion either to call in or not to call in an application for planning permission when the limit values under article 13 had not been complied with, or when an air quality plan under article 23 had not yet been put in place or had proved to be deficient or ineffective. Under article 3 of the Directive, the responsibilities of a competent authority were specific and circumscribed. It required the designation at the appropriate levels of the competent authorities and bodies responsible for six specified activities. None of those activities referred to the allocation and performance of land use planning functions. They did not include the determination of planning applications for development of any particular type, or those with likely implications for air quality. The respondent did not have a general duty as “competent authority” to use his own powers under the statutory planning scheme to avoid the worsening or prolongation of breaches of limit values. Nor in this case was he under an obligation to exercise his discretion under section 77 of the 1990 Act, and thus effectively under a duty, to call in the application because the development might worsen such breaches, or because objectors had said that it would. He was entitled to leave the decision to the first interested party.
(3) In the light of the representations made to the respondent, his decision not to call in the application for planning permission was not irrational. It was not unreasonable for the respondent to decide, as he did, to leave its determination to the local planning authority in the normal way. In making his decision, the respondent would have been aware that his own powers in determining an application for planning permission were the same as the first interested party, whose task was to determine the application on its planning merits, complying with the requirements of the statutory scheme, taking into account all material considerations and having regard to objections, including those relating to air quality. There was no particular factor in this case that made it obviously necessary for the respondent to determine the application himself so that his decision not to do so could not be regarded as perverse. The first interested party had considered the proposal on its merits, including the likely effects of the development on air quality and the amelioration of those effects to an acceptable level and there was nothing to say that the respondent should make such an evaluation himself.
Robert McCracken QC and Charles Streeten (instructed by Leigh Day Solicitors) appeared for the appellants; James Maurici QC and Alistair Mills (instructed by the Government Legal Department) appeared for the respondent; James Pereira QC (instructed by Canterbury City Council) appeared for the first interested party; Reuben Taylor QC (instructed by Clyde & Co) appeared for the second interested party.
Eileen O’Grady, barrister
