789: Government’s air quality plan knocked out for the third time

Today’s entry reports on the latest air quality litigation.

Yesterday, the High Court gave judgment against the Government on the challenge to its latest UK Air Quality Plan by environmental campaigning organisation ClientEarth.

Background

Briefly, the UK has had to comply with air quality limits since 2010. Its plans to do so were originally challenged by ClientEarth in 2011, who got all the way to the Supreme Court, the European Court and back to the Supreme Court before winning in April 2015, requiring the Government to bring forward a new plan that year. The Government produced a new plan on 17 December 2015. ClientEarth challenged it again for inadequacy and won again in November 2016. The Government was told to produce another draft plan by April 2017 and a final one in July. Although there was a bit of wrangling due to national and local elections the third plan came duly came out on 26 July. This was challenged yet again for not planning to bring the UK within compliance ‘as quickly as possible’.

The latest judgment

The judgment can be found here. The 2017 plan divided non-compliant local authorities into three groups: (a) London and five other cities, Nottingham, Derby, Leeds and Southampton had previously been told to introduced charging zones in the 2015 plan and it was not clear if they still had to (although London has); (b) 22 authorities that had to introduce charging zones or measures that they could show would have an equivalent effect, and (c) 45 other authorities that were going to be compliant by 2021 which was how long the Government thought a charging zone would take to be brought in anyway, so didn’t have to do anything.

Mr Justice Garnham, who has heard all the cases at High Court level, thought this approach ‘seriously flawed’ for the 45 authorities. He ruled that they each had to have a plan to achieve compliance as soon as possible, the time it took to introduce a charging zone was irrelevant to that. Encouraging local authorities to apply for grants and so on, which the Government was doing, was not requiring them to do anything and so was flawed. Even writing policies in a local plan did not guarantee that they would be implemented. The judge suggested he would quash that part of the plan, require the urgent production of a supplement to the plan, and keep the rest of the plan in force.

The measures relating to the 22 local authorities in the middle group had not been challenged and so will continue as planned.

The five cities had recently been mandated via a ministerial direction to produce business cases on their clean air zones by 15 September. The judge thought that was adequate.

Given this was the third successful challenge, the judge was amenable to giving ClientEarth a ‘continuing liberty to apply’, ie that they can go straight to court if the Government appeared to be backsliding without going through the judicial review process from the start each time. The details of that are yet to be finally thrashed out, but that would be a novel approach reflecting the seriousness of the Government’s continuing failures. The penultimate paragraph of the judgment makes sobering reading:

‘It is now eight years since compliance with the 2008 Directive should have been achieved. This is the third, unsuccessful, attempt the Government has made at devising an AQP which complies with the Directive and the domestic Regulations. Each successful challenge has been mounted by a small charity, for which the costs of such litigation constitute a significant challenge. In the meanwhile, UK citizens have been exposed to significant health risks.’

Infrastructure projects outside the 45 local authority areas should be able to carry on with a bit more certainty, but those within them had better watch out for the revised measures that may affect them. The list of authorities is as follows: