Pollution prevention

In April 2014, Public Health England
(PHE) published a report, ‘Estimating local mortality burdens associated with particulate air pollution’, which stated that current levels
of air pollution have a considerable impact on public health and referred to earlier reports which concluded that up to 29,000 premature deaths in the UK every year were attributable
to air pollution.

The report was sober reading. It brought into focus the underlying reasoning for the European Commission (EC)’s commencement of infraction proceedings against the UK in February 2014 for
a failure to comply with Directive 2008/50/EC on ambient air quality and cleaner air for Europe (the Air Quality Directive 2008).

It could also be seen against the backdrop of a declaration by the Supreme Court that the UK was in breach of its EU obligations relating to nitrogen dioxide (NO2) limits in its interim judgment in R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2013] UKSC 25. The Supreme Court then referred certain questions to the Court of Justice of the European Union (CJEU), which provided its preliminary ruling in November 2014 in Case C-404/13 R (ClientEarth) v The Secretary of State. Then, in April 2015, the Supreme Court handed down its final judgment in R (ClientEarth)
v Secretary of State [2015] UKSC 28.

Maximum pollution levels

The Air Quality Directive 2008 set maximum
air pollution levels for a number of pollutants, including NO2, that had to be met by 2010. At that time, the UK had 40 air pollution zones (known as air quality management areas (AQMAs)) exceeding those levels.

The CJEU judgment was quite clear about the nature and scope of member states’ obligations
in respect of NO2 limit values and that they were required to achieve a reduction in pollution.
It left no doubt as to the seriousness of the
breach, finding: ‘Member States must take all the measures necessary to secure compliance with that requirement and cannot consider the power to postpone the deadline, which they are afforded by Article 22(1) of Directive 2008/50, allows them to defer, as they wish, implementation of those measures.’

By 2014, the Department for Environment, Food and Rural Affairs (Defra) had accepted that 16 local authority zones would not meet a proposed revised deadline of January 2015. The CJEU also underlined that members of the public were entitled to rely upon provisions of the Air Quality Directive that were unconditional and sufficiently precise to ensure compliance with the directive.

It noted: ‘In addition, the court has consistently held that individuals are entitled, as against public bodies, to rely on the provisions of a directive which are unconditional and sufficiently precise.
It is for the competent national authorities and courts to interpret national law, as far as possible,
in a way that is compatible with the purpose of that directive. Where such an interpretation is not possible, they must disapply the rules of national law which are incompatible with the directive concerned (see, to that effect, judgment in
Janecek, EU: C: 2008:447, paragraph 36 and
the case-law cited.)

Lastly, as the Court of Justice has noted on numerous occasions, it is incompatible with the binding effect that article 288 TFEU ascribes to Directive 2008/50 to exclude, in principle, the possibility of the obligation imposed by that directive being relied on by the persons concerned. That consideration applies particularly in respect of a directive whose objective is to control and reduce atmospheric pollution and which is designed, therefore, to protect public health (see, to that >> >> effect, judgment in Janecek, EU:C:2008:447, paragraph 37).’

Government priority

The Supreme Court in its final judgment was also clear about the continuing concerns, noting that ‘during the five years of breach the prospects of early compliance have become worse, not better’. It added: ‘The new government, whatever its political complexion, should be left in no doubt as to the need for immediate action to address this issue.’

The Supreme Court allowed the appeal and then, adding to the 2013 declaration, made a mandatory order requiring the secretary of state to prepare new air quality plans and to deliver those plans to the EC by the end of 2015.

Air quality has been raised as an early priority for the new government. During House of Commons debates on 8 and 18 June 2015, ministers were repeatedly asked what was going to be done to resolve the pollution problem in London and beyond. Part of the debate referred to the EC infraction proceedings and letters from Defra in April 2014, reminding local authorities of the government’s power in part 2 of the Localism Act 2011 that can require authorities to pay all or part of any infraction fines arising from the breach of EU air pollution limits.

Local authority decisions

Some local authorities have recognised the potential for exacerbating air pollution levels when taking decisions. In William Davis Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin),
Mrs Justice Lang held that, in light of EU
and domestic law obligations and the National Planning Policy Framework guidance, the secretary of state was obliged to consider
the impact of a proposed housing scheme
on emission levels and on the adjacent AQMA required to be in place under the Air Quality Directive, something raised as an objection to
the proposal by the council.

In contrast, the court in R (Kenyon) v Wakefield Council [2013] EWHC 1269 (Admin) held that there was no arguable error of law when the council granted planning permission for the expansion of an in-town supermarket located within an AQMA which would worsen rather than improve air quality exceedances.

Similarly, in R (Carlyle) v Hastings BC (CO/1313/2015), the council failed to have regard to local policy ensuring that airborne pollutants do not exceed statutory guidelines and national planning guidance dealing with air quality, with the council and developer subsequently consenting to judgment on that basis.

Welsh example

There is, it seems, still some way to go for the UK to materially resolve what appears to be the acute air quality problems and to try to reduce the 29,000 premature deaths by pollution.

At the end of March 2015, the UK was served with further air quality infraction proceedings as
a result of breaching NO2 emissions limits within Directive 2001/80/EC on the limitation of emissions from large combustion plants. The breach was caused by the continuing use of the Aberthaw coal-fired power plant in South Wales, which is currently operating at emission levels in excess
of the limits set out in the directive.

Around the same time, the High Court delivered judgment in R (Friends of the Earth) v The Welsh Ministers [2015] EWHC 776 (Admin), in which the court dismissed an application for judicial review challenging an extension of the M4 corridor in South Wales which would effectively encircle Newport with a motorway. The proposed extension was based upon the fact that the existing motorway is now, in very simple terms,
full up with traffic for too much of the time and
that anticipated growth in use would present operational problems.

The argument before the court was that the Welsh ministers had failed to consider ‘reasonable alternatives’ to the proposed new motorway
that would run across the Gwent Levels, an area comprising several sites of special scientific interest and the River Usk special area of conservation.
Mr Justice Hickinbottom concluded that ‘the merits of such a decision are quintessentially for the Welsh Government.’

What, then, does the government do to
tackle too much pollution and too much traffic?
For the Welsh government at least the answer
may be found in the new Well-being of Future Generations (Wales) Act 2015, which aims to ‘develop an innovative, productive and low carbon society which recognises the limits of the global environment’ and to develop a nation which ‘maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change’.

The new Act should rebalance the arguments involved in traffic and power generation away from more roads, more traffic, and more fossil fuel use. That is to say, polluting power plants and more motorways are highly unlikely to assist future generations. Certainly premature death by pollution cannot seriously be part of the plan. SJ

Dr Paul Stookes is a solicitor-advocate at specialist law firm Richard Buxton Environmental and Public Law. He is also an associate lecturer at the Open University and an accredited mediator

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