Back in 2008, the risk to public health from air pollution lead to legal NO2 limits being established by the EU (known as Directive 2008/50/EC, Article 13). Compliance was supposed to happen by 2010, but has not been achieved in many cities around the UK. Since air pollution has a health burden equivalent to around 40,000 deaths per year in the UK, we need to urgently address the problem. The High Court recently wrote “Proper and timely compliance with the law in this field matters.” This is recognized by law in the Air Quality Standards Regulations 2010, Regulation 26 which requires that “measures intended to ensure compliance with any relevant limit value within the shortest possible time” are enacted.
Central government is legally required to produce a national air quality plan. However, previous versions have been challenged by the campaign group ClientEarth, an environment and public health charity. ClientEarth successfully argued in the High Court that the plan was inadequate, both in April 2015 and again in November 2016. The latest government plan was published in July 2017 and titled “UK plan for tackling roadside nitrogen dioxide concentrations“.
The 2017 plan divided areas depending on if they will be compliant with NO2 legal limits either within 3 years or more than 3 years (plus another five cities of highest concern). The government argued that this is a proportionate response given financial constraints. For the 23 local authorities (LAs) that will not be compliant within a few years, the plan required that they have to introduce Clean Air Zones (CAZs, or something at least as effective), the measures are to be introduced at pace, and preceded by an additional local action plan. Another 45 LAs which exceed the NO2 limit but are expect to be within compliance by 2021 were not required to produce an additional local action plan. Portsmouth is among the 45 LAs and expected to come into compliance with air quality standards last of all; in other words, it is the most polluted in this group.
Serious doubts have been raised as to whether Portsmouth will come into compliance in anywhere near this time frame, given that traffic levels are projected to increase 41% between 2016 and 2026, along with a city centre road scheme designed to significantly increase road capacity. ClientEarth also suspects that most local authority projections are based on over optimistic modelling.
In February 2018, the High Court ruled that the approach taken for the 45 LAs was again found to be insufficient, as the government’s air quality plan did not address the “shortest possible time” requirement specified in law. The court ruled that the government cannot not simply ignore or water down the legal requirement for cities expected to come into compliance within 3 years:
“The Secretary of State 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. The CAZ benchmark cannot be treated as a means of watering down those obligations.”
Also, the court found that there was no defined mechanism for enforcing the air quality plan for the 45 LAs. The sending of “polite letters from the Government urging additional steps by individual local authorities are not enough. […] the failure to make mandatory any step in the case of the 45 means that the Government cannot show either that it is taking steps to “ensure” compliance or, as a result, that compliance is “likely”.”
The High Court also ruled that air quality plans need to be specific: “A list of measures which have been carried out, are underway, are promised or are being investigated, does not constitute compliance with [EU regulations] Annex XV or [English regulations] Schedule 8; it does not amount to a plan describing the measures set out in a project; with timetables for implementation; estimates of the improvement of air quality that will follow and an indication of the expected time required to attain the objectives.” Unfortunately, many local air quality plans follow the same template as the national government. The court did find that “the projected compliance of these 45 local authority areas rests on unspecified, untimetabled measures which have not been modelled”, so it is very sensible that local air quality plans are subjected to extra scrutiny.
The court required extra action to be taken in 33 LAs (out of 45) because they are not expected to achieve compliance by the end of this year (2018). No extra action was required for the 12 LAs that are expected to reach compliance this year. Portsmouth is literally at the top of the list within the 33 areas needing to take urgent action (see Annex K).
Local Portsmouth councillors such as conservative Robert New, cabinet member for environment and community safety, seem to be in denial, recently claiming we don’t need a clean air zone and this is somehow “good news”:
“…the government minister leading the air quality review … has written to us to advise that Portsmouth does not require a clean air quality management zone. This is really good news for the city, in part because it also shows the measures taken by our environmental health team are paying off… I think in Portsmouth we are fortunate as well, we also benefit from things such as Solent breezes, etc. I know I’m no expert on these matters, I’m sure that all of these things have an impact when combined.”
Portsmouth is still facing an air pollution crisis and the City Council has not taken strong action. However, the recent High Court ruling should put Portsmouth on track to take serious measures to rapidly address this problem. Both sides in the High Court action seem to accept that Clean Air Zones (CAZs) are generally the best way to quickly reduce air pollution. However, a CAZ takes around 3 years to implement and may be difficult manage in Portsmouth because of the HGV traffic wishing to travel on to the Isle of Wight. On the other hand, there are only three road links on to Portsea Island making it easier to monitor.
Tompion Platt of Living Streets comment that “inaction from Government and Local Authorities simply cannot continue. Making it possible for people to switch to more efficient, healthy and clean forms of transportation is the best way to make the UK’s air breathable for us all.”
Unusually, the High Court has taken oversight of the next air quality plan because of the urgency of the problem and the repeated failure of the government to properly address it. We call on Portsmouth Council Council to update their air quality plans to address the problem within the shortest possible time.