Shirley & Anor, R (on the application of) v Secretary of State for Communities & Local Government & Ors

The Secretary of State’s power under section 77 of the Town and Country Planning Act 1990 is a broad planning discretion concerned with who determines an application. It is not a supervisory power for correcting defects in a local planning authority’s decision-making process.

Under Directive 2008/50/EC and the Air Quality Standards Regulations 2010, exceedances of air-quality limit values are addressed through the preparation and implementation of an air quality plan. The legislation does not require the Secretary of State to call in individual planning applications, refuse permissions, or impose planning restrictions merely because a development may affect air quality.

The claimants challenged the Secretary of State’s decision not to call in a major urban-extension planning application under section 77 of the Town and Country Planning Act 1990. The proposed development raised disputed issues concerning nitrogen dioxide concentrations and an existing air quality management area.

Permission was granted on three grounds: failure to take account of obligations under Directive 2008/50/EC, irrationality, and irrational reliance on the local planning authority or a later judicial review to address air-quality concerns. Permission was refused on a separate reasons ground.

The central issue was whether the air-quality legislation required the Secretary of State to exercise the call-in power in order to secure compliance with air-quality limit values.

1. Claim dismissed. The Secretary of State’s decision not to call in the application was lawful.

2. Section 77 confers a very broad discretion, exercised as a matter of planning judgment. Its purpose is to enable the Secretary of State to determine applications where that is necessary or desirable in the national interest. It does not confer supervisory control over the local planning authority’s handling of an individual application. The discretion is therefore subject to only a very limited rationality challenge.

3. Article 3 of Directive 2008/50/EC identifies specific responsibilities for competent authorities, principally concerning assessment, measurement, data accuracy, coordination and cooperation. Regulation 3 of the Air Quality Standards Regulations 2010 accurately transposes those responsibilities and does not impose wider planning-control functions on the Secretary of State.

4. Articles 13, 22 and 23 of the Directive, read with regulations 17 and 26 of the 2010 Regulations, establish a specific mechanism for dealing with exceedances: an air quality plan must be prepared and implemented so that compliance is achieved and the exceedance period is kept as short as possible. They do not impose a freestanding duty to use section 77, refuse planning permission, or impose conditions or planning obligations on individual developments.

5. The CJEU authorities, including Janecek v Freistaat Bayern, ClientEarth v Secretary of State for the Environment, Food and Rural Affairs and Commission v Republic of Bulgaria, reinforced that statutory mechanism. Bund für Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland was distinguishable because the Water Framework Directive contained materially different wording and an express derogation scheme concerning individual projects.

6. The air-quality issues remained material considerations for the local planning authority when determining whether to grant permission and what mitigation to require. It was not irrational for the Secretary of State to expect the authority to determine those issues lawfully. Grounds 1 to 3 therefore failed.

This was a first-instance judicial review. Ouseley J granted permission on Grounds 1 to 3 at an oral hearing on 2 May 2017 and refused permission on Ground 4. The claim was dismissed by the High Court.