R(ClientEarth (No 3)) v (1) Secretary of State for Environment, Food And Rural Affairs (2) The Secretary of State for Transport and (3) Welsh Ministers

In a high profile judgment handed down today, the Administrative Court declared the Government’s 2017 Air Quality Plan unlawful, and required the production of supplements to the Plan, compatible with the UK’s obligation to reduce Nitrogen Dioxide (NO₂) concentrations across the country. It also issued a first ever, and “wholly exceptional” form of relief in judicial review proceedings: liberty to apply extending to the lawfulness of the supplemental Air Quality Plan for England, due to be published in October 2018.

This claim follows two earlier sets of proceedings, in which ClientEarth, an environmental NGO, had successfully sought relief against the Government for breaching the EU Air Quality Directive (and its equivalent domestic regulations, the Air Quality Standards Regulations 2010), before the Court of Justice of the European Union, the Supreme Court and the High Court. The High Court had ordered the production, by July 2017, of an Air Quality Plan (“AQP”) designed to reduce exceedances of the maximum limits of NO₂ as soon as possible.

In his judgment today, Mr Justice Garnham concluded that the Secretary of State had committed two errors of law by (1) failing to provide sufficient measures for 45 local authority areas in England in order to comply with Article 23(1) of the Directive and Regulation 26(2) of the 2010 Regulations and (2) failing to include the information required by the legislative regime about the timetable for implementation, estimated impact and timetable for compliance. He concluded that the 2017 AQP was “seriously flawed” by applying a benchmark to those areas which would be “pointless” (at [71]). Rather, the Secretary “must ensure that, in each of the 45 areas, steps are taken to achieve compliance as soon as possible, by the quickest route possible and by a means that makes that outcome likely” (at [74]) and that he must also design a “mechanism for enforcing the local plan” (at [78]). The Court expressly rejected any suggestion that compliance could be made conditional on cost unless there were equally effective measures of varying cost (at [75]-[77]). In relation to the five cities outside London with the most serious exceedances, Garnham J was satisfied that following the introduction of Ministerial Directions in December 2017 requiring the local authorities to produce “detailed business cases” for the swift introduction of charging Clean Air Zones (“CAZs”) to a specified timetable and the Minister’s intentions to take further steps, the 2017 AQP was lawful (at [97] and [101])

The Judge also found that the Welsh Ministers had failed to produce a compliant AQP for Wales, and accepted an undertaking from them to produce a draft compliant AQP by April 2018 and a final supplemental Welsh AQP by 31 July 2018 (at [102]-[103]).

As to relief, the Court granted a declaration and mandatory Order requiring the Welsh Ministers to publish a compliant AQP by July 2018 and the Secretary of State to produce compliant Supplement for the 45 areas in England by 5 October 2018. Of greater interest, it granted the first extended liberty to apply provision applying to the final Supplement in light of the exceptional circumstances of the case.

The full judgment can be read here.

Nathalie Lieven QC and Ravi Mehta acted for the successful Claimant.