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

Factual and Procedural Background

The appellants challenged the decision of the Secretary of State for Housing, Communities and Local Government not to call in for his own determination a planning application submitted by Company B for a large housing development comprising 4,000 dwellings and other development on land at New Dover Road, to the south-east of The City. The local planning authority, Company A, had resolved to grant planning permission subject to mitigation measures addressing air quality concerns. The appellants contended that the Secretary of State acted unlawfully by failing to consider his obligations under the Air Quality Directive and related domestic regulations when deciding not to call in the application. The Administrative Court dismissed the appellants' claim for judicial review, and permission to appeal was granted.

Legal Issues Presented

1. Whether the preparation and implementation of an air quality plan pursuant to Article 23 of the Air Quality Directive suffices as a response to breaches of limit values;
2. Whether the Secretary of State, as "competent authority", had a duty to use his planning powers to avoid worsening or prolonging breaches of air quality limit values and thus was obliged to call in the planning application;
3. Whether the Secretary of State's decision not to call in the application was irrational, particularly given concerns that any errors could only be addressed by the local planning authority or by judicial review after permission was granted.

Arguments of the Parties

Appellants' Arguments

• The Secretary of State failed to adopt a purposive approach to the Air Quality Directive and domestic regulations, neglecting the high level of environmental protection required.
• The adoption and implementation of an air quality plan alone is insufficient; active measures, including call-in of the planning application, were necessary to comply with air quality limit values.
• The Secretary of State had a duty as competent authority to exercise his call-in powers to prevent worsening air quality breaches, which he failed to do.
• The decision not to call in the application was irrational because the local planning authority had not yet reconsidered the application and judicial review would offer limited scope post-permission.

Respondent's and Interested Parties' Arguments

• The preparation and implementation of an air quality plan is the specific and appropriate remedy under the Air Quality Directive for breaches of limit values.
• The Secretary of State's discretion under section 77 of the Town and Country Planning Act 1990 is very broad and not constrained by the Air Quality Directive or domestic air quality regulations.
• The Air Quality Directive and regulations do not impose a duty on the Secretary of State to call in planning applications or to determine them personally on air quality grounds.
• The local planning authority has equivalent statutory powers and is subject to judicial review, which provides adequate oversight of planning decisions affecting air quality.
• The Secretary of State's decision was not irrational; it was reasonable to leave the matter to the local planning authority, which intended to reconsider the application including air quality impacts.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the Air Quality Directive and its domestic transposition, focusing on the roles and responsibilities of the Secretary of State as the designated competent authority. It concluded that the Directive prescribes the preparation and implementation of an air quality plan as the specific and bespoke remedy to breaches of air quality limit values. While Member States may adopt additional measures, the Directive does not mandate the Secretary of State to call in planning applications or personally determine them to ensure compliance.

The Secretary of State's discretion under section 77 of the Town and Country Planning Act 1990 to call in planning applications is very broad and administrative in nature. This discretion is not constrained or converted into a duty by the Air Quality Directive or the 2010 regulations, even where limit values are exceeded or an air quality plan is overdue or deficient.

The court emphasized that the statutory planning scheme envisages local planning authorities as the primary decision-makers, with their decisions subject to judicial review. The Secretary of State's call-in power is an exceptional alternative reserved for matters of national importance, not a supervisory tool to correct local deficiencies. The court rejected the appellants' argument that the Secretary of State had a duty to call in the application to prevent worsening air quality breaches.

Regarding the rationality of the Secretary of State's decision, the court found no error. The local planning authority had considered air quality impacts and proposed mitigation measures; it intended to reconsider the application. Judicial review remained available to challenge any unlawful grant of permission. Therefore, the Secretary of State's decision to leave the matter to the local authority was not irrational or perverse.

The court also declined to make a reference to the Court of Justice of the European Union, finding the legal principles clear and the appeal capable of determination without such a reference.

Holding and Implications

The court DISMISSED the appeal.

The decision confirms that the Secretary of State's discretion under section 77 to call in planning applications is broad and not constrained by the Air Quality Directive or domestic air quality regulations, even in circumstances of air quality limit value breaches. The preparation and implementation of an air quality plan is the prescribed remedy for such breaches, and no general duty arises for the Secretary of State to determine planning applications personally to comply with air quality obligations.

Consequently, planning applications with potential air quality impacts remain primarily within the jurisdiction of local planning authorities, whose decisions are subject to judicial review. This ruling upholds the established planning framework and clarifies the limited role of air quality legislation in directing planning call-in decisions. No new precedent was set beyond these clarifications.