Shirley & Anor, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government

A breach of an ambient-air-quality limit value requires a member state to prepare and implement an efficacious air quality plan under article 23 of the Air Quality Directive. The Directive does not impose a further unspecified duty to use individual planning controls in a particular way.

Designation of the Secretary of State as a competent authority concerns only the activities specified by article 3. It neither narrows the broad discretion to call in an application under section 77 of the Town and Country Planning Act 1990 nor converts that discretion into a duty to determine applications that may affect air quality. Such effects remain material planning considerations for the ordinary decision-maker.

The appellants challenged the Secretary of State’s refusal to call in, under section 77 of the Town and Country Planning Act 1990, an application for 4,000 dwellings and associated development in Canterbury. The local planning authority had resolved to grant permission subject to mitigation and monitoring measures, despite objections that the development would worsen nitrogen-dioxide levels in an Air Quality Management Area.

Dove J dismissed the judicial-review claim: [2017] EWHC 2306 (Admin). The appeal raised whether an article 23-compliant air quality plan was a sufficient response to breached limit values, whether the Secretary of State’s competent-authority status required call-in, and whether his refusal was irrational.

1. Appeal dismissed. Article 23 of the Air Quality Directive prescribes the response to an exceedance of article 13 limit values: an air quality plan containing appropriate and effective measures so that the exceedance period is as short as possible. Adoption of a plan does not itself cure a breach of article 13, but the Directive does not prescribe an additional, free-standing obligation to control individual development permissions. The court therefore upheld the judge’s description of article 23 as the specific remedy.

2. The different and more prescriptive provisions considered in Bund für Umwelt und Naturschutz Deutschland under the Water Framework Directive did not justify importing a project-authorisation duty into the air-quality regime. The Air Quality Directive does not require a planning moratorium, refusal of a class of development, or ministerial determination of particular planning applications.

3. Article 3 and regulation 3 of the Air Quality Standards Regulations 2010 designate competent authorities for six specified assessment, measurement, co-ordination and co-operation functions. They do not make the Secretary of State generally responsible for exercising every ministerial power so as to secure compliance with air-quality obligations. Neither those provisions, article 13, regulation 17, nor article 23 imposed a duty to call in this application or to refuse it.

4. Air-quality effects and compliance with limit values may be material considerations in determining planning permission. However, the local planning authority has the same relevant decision-making powers as the Secretary of State, and its decision remains amenable to judicial review. Section 77 is an exceptional, broad administrative discretion, not a supervisory mechanism for correcting alleged deficiencies in a local authority’s process.

5. The refusal to call in was not Wednesbury irrational. The Secretary of State could lawfully leave the application to the local planning authority, which could reconsider its resolution and whose eventual decision could be challenged if unlawful. No reference to the Court of Justice was necessary: the appeal failed independently on the call-in issues, the point was acte clair, and a reference would cause unjustified delay.

• Court of Appeal (Civil Division). Appeal dismissed: [2019] EWCA Civ 22.

• Administrative Court (Planning Court). Dove J dismissed the claim for judicial review: [2017] EWHC 2306 (Admin).