Claimants lose appeal over decision by minister not to call in major development

The Communities Secretary was not obliged to call in a planning application for a development that might affect air quality, the Court Of Appeal has decided.

Canterbury City Council had given permission to developer Corinthian Mountfield to build 4,000 homes at New Dover Road.

This followed a lengthy process that concerned how this development might affect an Air Quality Management Area declared by the council to include most of the area bounded by the city centre ring road.

Although the application was initially refused it was granted once various improvements had been made to lessen its impact on air quality.

Local residents Emily Shirley and Michael Rundell, appealed against Dove J’s dismissal of their claim for judicial review in September 2017 of Sajid Javid’s decision not to call in the application under section 77 of the Town and Country Planning Act 1990.

They argued that by failing to call in the application the minister had failed to take into account his obligation under the Air Quality Directive to bring air quality into compliance with the relevant threshold values, had disregarded his responsibilities as ‘competent authority’ in England and neglected the directive’s requirement to achieve the threshold exposure value for nitrogen dioxide as soon as possible.

Ms Shirley and Dr Rundell also contended that the Secretary of State's decision was irrational and that it was perverse for him to say hat any error of law on his part could be remedied either by raising concerns with the council while the application for planning permission was still undetermined, or by challenging the grant of permission by judicial review.

But Lindblom LJ said in Shirley & Anor, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 22 that the Secretary of State does not have a general duty as ‘competent authority’ under the directive to use his planning powers “to avoid the worsening or prolongation of breaches of [air quality] limit values”.

The judge said the minister was not under an obligation to call in Corinthian Mountfield's application because he was entitled to leave the decision to the city council.

“If, as I have concluded, the Secretary of State's call-in discretion is not cut down by the air quality legislation, his freedom to exercise that discretion one way or the other in a case such as this without lapsing into irrationality must be considerable,” Lindblom J explained.

“In my view he made no such error here. His decision, in the light of the representations made to him, not to call in the application for planning permission was not irrational.”

Mark Smulian