This information contained here is about the legal aspects of air pollution, particularly with regard to EU law.  For information on the health impacts of air pollution see our Health Impacts page.

In February 2018, the Department for Environment, Food & Rural Affairs (Defra) lost its third air pollution case (brought by ClientEarth) as a judge branded its air pollution plans as ‘unlawful’.  Judge Mr Justice Garnham declared the government’s failure to require action from 45 local authorities with illegal levels of air pollution in their area unlawful.  He ordered ministers to require local authorities to investigate and identify measures to tackle illegal levels of pollution in 33 towns and cities as soon as possible – as 12 of the 45 are projected to have legal levels by the end of 2018.

  Judge Mr Justice Garnham’s ruling (23 Feb 2018)

As a result a number of cities are having to consult on whether to adopt Clean Air Zones and what measures they should use to tackle the illegal levels of pollution.

Legal opinion – the role of planning authorities in tackling air pollution

In October 2015, Clean Air in London received a legal opinion from Robert McCracken QC on the approach planning authorities should take to the Air Quality Directive 2008/50/EC.  It states that planning authorities need to take into account whether a development would impact on air quality and that they should not make decisions that undermine the ability of the UK to fulfill its obligations to meet the requirements of the Directive.

In effect, they should not be granting planning permission for developments that significantly worsen air pollution, particularly if an area is already suffering from pollution above legal limits or will have its pollution levels increased above legal limits.  Besides this, they should also ensure that development leads to the best possible air quality, i.e. the aim should be to be always driving down air pollution.

UK Government failing to tackle air pollution

That’s the damning indictment of the Court of Justice for the European Union (CJEU) ruling. When ClientEarth challenged the UK Government’s failure to reduce air pollution to safe levels, the CJEU ruled in ClientEarth’s favour saying that the UK Government:

• was in breach of its duty to achieve legally-binding limits for nitrogen dioxide by the 2010 deadline; and
• had failed to apply to the European Commission for a time extension by preparing plans to achieve limits by an extended deadline of 2015.

It also said that:

• the lower courts [in previous hearings] were wrong not to give a remedy for the UK’s breach of the law; and
• national courts now need to ensure that the government produces plans to reach the limits in as short a time as possible.

Subsequently, the UK’s Supreme Court found in ClientEarth’s favour, on 29 April 2015, and ruled that the Government had to produce a new plan to tackle air pollution and submit it to the European Commission by the end of the year.

Presumption against making air pollution worse

A letter sent to Clean Air in London from the European Commission’s Environment Directorate in February 20014 highlights that:

Where air quality is already good, Article 12 of the Directive applies.  This provision spells out in legal terms the “non-deterioration” principle, according to which Member States shall not only maintain the levels below the limit values, but also “endeavour to preserve the best ambient air quality compatible with sustainable development”.

More information

The Healthy Air Campaign is  network of organisations that work together to fight for our right to breath clean air.  It’s website contains a wealth of information and advice.