Clientearth, R (on the application of) v Secretary of State for Environment, Food & Rural Affairs

Under the Directive 2008/50/EC on ambient air quality and cleaner air for Europe, Article 22(1) gives a Member State a discretion, not a duty, to postpone a nitrogen-dioxide compliance deadline by up to five years. It does not impose an absolute requirement to demonstrate compliance by the end of that period. Article 23 imposes separate duties to establish air-quality plans before or after the original or extended deadline, with appropriate measures to keep exceedances as short as possible. A Member State remains in breach after the primary deadline, and Commission enforcement does not remove the plan-making obligation. A formal declaration is unnecessary where the breach is conceded and the judgment records it.

ClientEarth brought judicial review proceedings challenging draft air-quality plans published by the Secretary of State for Environment, Food & Rural Affairs. The United Kingdom conceded that it was in breach of Article 13(1) of the Directive 2008/50/EC on ambient air quality and cleaner air for Europe. Mitting J declined relief in the Administrative Court on 13 December 2011. The plans indicated that some zones, including London, would not achieve compliance by 2015. The appeal concerned whether Articles 22 and 23 required a plan demonstrating compliance by 1 January 2015, the maximum possible extension under Article 22(1), and whether effective judicial protection required mandatory relief or a formal declaration.

Laws LJ delivered the leading judgment. Pitchford LJ and Sir John Chadwick agreed.

1. Appeal dismissed. Article 22(1) uses the word may, mirrored by peut in the French text. It confers a discretion to seek a postponement of up to five years where the stipulated conditions are met. It does not impose a mandatory duty to seek an extension or create an absolute compliance cut-off at the end of the extended period.
2. The use of shall in Article 22(2), which concerns a different pollutant, does not alter the meaning of Article 22(1). The rigorous requirements in Article 22(3), the additional information required by Annex XV, and the notification machinery in Article 22(4) apply when the extension regime is deployed. They do not make Article 22(1) compulsory.
3. Articles 22 and 23 address separate situations. The duties in Article 23(1) operate independently of an Article 22 notification. The first limb applies to exceedances before the relevant deadline. The second applies after the deadline, whether it is the original deadline or one extended by up to five years. Air-quality plans must set out appropriate measures so that the exceedance period is kept as short as possible.
4. The obligation under Article 13 is not qualified by disproportionate-cost considerations, save for the Article 22 mechanism. Where even the maximum extension cannot be met, the extension procedure may not be honestly or properly invoked, and the Member State remains in breach after the primary deadline. The Directive’s policy is also to promote pollutant reduction through Article 23 plans, not merely to penalise breaches through Commission enforcement.
5. Once the construction issue was resolved, the question of a mandatory order was moot. Mitting J was plainly right to refuse a formal declaration of the conceded breach: the judgment recorded the concession and its correctness and therefore spoke as a declaration. No substantive issue of effective judicial protection arose.
6. The court declined to determine the wider effective-judicial-protection submissions because doing so would serve no useful purpose and would produce obiter dicta.

1. Court of Appeal (Civil Division). On 30 May 2012, Laws LJ, Pitchford LJ and Sir John Chadwick dismissed the appeal from the Administrative Court: [2012] EWCA Civ 897.
2. High Court of Justice, Queen’s Bench Division, Administrative Court. Mitting J declined to grant relief in judicial review proceedings on 13 December 2011. No citation for that judgment was stated in the judgment under review.