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Cleaning up the air we breathe

Rob Hann looks at the pressures on local authorities to push forwards at pace with their clean air initiatives.

“Sometimes” (sang the Hollies in the 1970’s) “All I need is the air that I breathe….”

Well, times may have changed, but the need to breathe clean, fresh air remains a basic requirement for us all.

Unfortunately, the air that we now breathe in our major cities has become increasingly polluted by Co2 and carbon emissions from huge numbers of vehicles clogging up the streets. EU member states were required to produce plans to limit nitrogen dioxide to acceptable levels by 2010, or 2015 at the latest. The UK failed to do so and is expected to have illegally high nitrogen dioxide levels in many areas by 2020.

Environmental activist ‘Client Earth’ has been busy trying to force HM Government to take urgent action to meet the environmental challenges posed by congested roads and too many cars and to comply with the EU directives. In a David-v-Goliath struggle, the environmental law charity took on the might of the UK Government in a series of judicial review challenges to the Government’s Air Quality plans which were significantly lagging behind the EU compliance deadlines. Client Earth succeeded in not one action but three separate judicial review actions against the Government.

Now, and thanks in no small measure to ClientEarth’s actions, the UK Government have been forced to take urgent measures to comply with EU Air Quality Directive (and its equivalent domestic regulations, the Air Quality Standards Regulations 2010). DEFRA (the responsible Government department) have set up a separate unit known as the Joint Air Quality Unit or ‘JAQU’ to specifically deal with the challenges and obligations the action taken by Client Earth highlighted. Frantic action is underway to require and vet business cases being developed by local authorities across the UK to belatedly try to meet clean air requirements (and all this, of course, happening against the backdrop of Brexit).

The latest judgment in favour of Client Earth was last year (R (Client Earth (No 3)) v (1) Secretary of State for Environment, Food And Rural Affairs (2) The Secretary of State for Transport and (3) Welsh Ministers [2018] EWHC 315 (Admin)) 2018.

Mr Justice Garnham (who had also heard the earlier cases) was scathing in his condemnation of the Government’s failure to move speedily on this important issue. The Learned Judge said:

“Proper and timely compliance with the law in this field matters. It matters, first, because the Government is as much subject of the law as any citizen or any other body in the UK. Accordingly, it is obliged to comply with the Directive and the Regulations and with the orders of the court. Second, it matters because, as is common ground between the parties to this litigation, a failure to comply with these legal requirements exposes the citizens of the UK to a real and persistent risk of significant harm. The 2017 Plan says that "poor air quality is the largest environmental risk to public health in the UK. It is known to have more severe effects on vulnerable groups, for example the elderly, children and people already suffering from pre-existing health conditions such as respiratory and cardiovascular conditions". As I pointed out in the November 2016 judgment, DEFRA's own analysis has suggested that exposure to nitrogen dioxide (NO2) has an effect on mortality "equivalent to 23,500 deaths" every year.”

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 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 Air Quality Plan (AQP) was “seriously flawed” by applying a benchmark to those areas which would be “pointless”. 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” and that he must also design a “mechanism for enforcing the local plan”. The Court expressly rejected any suggestion that compliance could be made conditional on cost unless there were equally effective measures of varying cost.

The Judge also found that the Welsh Ministers had failed to produce a compliant AQP for Wales.

Many local authorities across the UK will be well aware of both the funding now on offer from JAQU (subject to following the processes) and the pressure to comply with Clean Air requirements being effectively ‘policed’ by Client Earth. Five cities have been mandated by the Government to introduce a Clean Air Zone (CAZ), these are Birmingham, Leeds, Nottingham, Derby and Southampton. A CAZ can be confined to a single road or a part of a city and can include an area in which certain vehicles can be charged or fined for entering.

The Government has also named 23 other local authorities where it expects pollution levels to reach illegal levels by 2021. They must all carry out a feasibility study to determine whether or not a Clean Air Zone is required. Once approved, the local authority can receive funding to help set up the CAZ.

Client Earth have not rested on their laurels since the judgement and are now focusing attention on individual local authorities who are seeking business case led applications for grant funding from central government to implement a smorgasbord of anti-co2 measures and a swathe of Clean Air Zones. Client Earth has warned councils across England and Wales that they too risk legal action if they fail to meet the government’s air quality deadlines and their proposals do not meet legal requirements.

Several authorities have published (or are in the later stages of developing) their proposals for improving air quality in their respective regions. For example, Greater Manchester recently unveiled plans for a CAZ to be introduced from 2021, which will charge high-polluting HGVs, buses, taxis and vans for driving around the city region if they don’t comply with NO2 emissions standards. The scheme (if approved), will cover all 10 of Greater Manchester’s local authorities, will require non-compliant buses and lorries to pay £100 a day, while taxis and vans would be charged £7.50 each day. The scheme forms only part of the outline business case for Greater Manchester’s Clean Air Plan, which looks to significantly reduce NO2 emissions from road vehicles around the Greater Manchester conurbation.

The City of Derby have also published proposals, albeit six months after the original deadline set by Ministers. The council is proposing traffic management measures to address air quality issues without any charges for road users and without the need for a CAZ, opting instead for a package of locally targeted initiatives aimed at better traffic management to reduce pollution and the offer of financial incentives to reduce reliance on older polluting vehicles in favour of new ultra-low emission vehicles.

On the 9th September 2019 a private members bill was presented to Parliament, which, if passed into law would require the Government to adopt tighter air pollution limits in line with World Health Organisation recommendations. The Times Newspaper is also running a Clean Air for all campaign calling for sales of new petrol and diesel cars to be banned by 2030. Momentum for change is building.

In the very near future, it is possible that road users may face a bewildering array of Charging Action Zones set up in different towns and cities they happen to be driving through. Even the charges imposed and types of vehicle subject to those charges might vary from city to city. Whilst this might be a source of some confusion, perhaps it will be the lesser of two evils and a small price to pay when the health benefits of cleaner air are considered for our children and dependents?

Rob Hann is a local authority solicitor currently working as a consultant for Leicester City Council helping to develop LCC’s clean air proposals. Rob is also a consultant with Freeths LLP and works with their Energy & Waste team who are able to assist local authorities with developing strategies aimed at greener transport and to roll out infrastructure linked to charging action zones and other co2 reduction initiatives. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

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