Dear Hugo 

Thank you for instructing us to advise you on whether the Clean Air Act 1993 (the “Act”) might provide options for reducing coal burning in Smokey North, in light of concerns relating to the respiratory issues that are arising in young children in connection with smoke.

In summary, the Secretary of State has the power to require the local authority to implement a smoke control order, and would likely do so in your circumstances for the reasons set out below.

Local authority powers

Section 18 of the Act empowers a local authority to designate any part of its borough as a smoke control area, and this would include a specific town such as Smokey North. This would be achieved by the local authority making a “smoke control order”, which can specifically target certain types of buildings, fire places and boilers. However, such orders are within a local authority’s discretion, meaning that they can refuse to take such action (at least in the first instance).

Secretary of State’s powers

Section 19 of the Act affords the Secretary of State the power to require the local authority to exercise its powers under section 18, if they are satisfied that:

• Such action would be expedient to abate smoke-related air pollution in the relevant area; and 
• The local authority has failed to exercise (or sufficiently exercise) its powers to abate the pollution under section 18 of the Act.

Given the support provided by local paediatricians for the residents’ concerns, it is likely that the Secretary of State would agree that a smoke control order would provide a practical and convenient (i.e. expedient) solution for reducing (i.e. abating) smoke-related air pollution in the area. Moreover, as the local authority has taken no action to date, it is also likely that the Secretary of State would be satisfied that the local authority has not sufficiently exercised its powers under section 18 of the Act to reduce the pollution.

Next steps

If the Secretary of State agrees with the above analysis, they can direct the local authority to submit one or more proposals for making smoke control orders, which the Secretary of State may reject or approve. Section 19 of the Act affords the local authority up to 6 months to submit these initial proposals.

If the local authority fails to comply with this direction, or submits a proposal with which the Secretary of State disagrees, the Secretary of State may then mandate that the local authority take specific actions under the Act. This could include prohibiting coal burning in Smokey North. Note however that this is all still within the discretion of the Secretary of State.

Conclusion

To summarise, the Secretary of State has the power to require the local authority to declare Smokey North a smoke control area. This would involve the local authority issuing a smoke control order, which could alleviate residents’ concerns by restricting coal burning in the area. However, this process could take many months (if not years), and would still be subject to the discretion of the Secretary of State.

If you would like to discuss any of the above in further detail, please do not hesitate to get in touch. 

Yours sincerely

Your Lawyer

Advice on this case study

• Where applicable, I would recommend starting client letters of advice by summarising back the facts and instructions, and then highlighting your overall findings. This helps clients to ascertain that you have properly understood their instructions, and to quickly access the key information should they need it.
• I tried to use a strong and consistent structure when drafting the main body of this letter. I started by setting out headings relating to each aspect of the question, just to make sure I didn’t miss anything. 
• In each main section, I then aimed to: (a) explain the relevant law, and then (b) apply that law to the facts. It can be easy to lose sight of the circumstances presented in a case study, so make a conscious effort to tie your points, including the relevance of the law that you discuss, to the facts presented. Clients want to know how the law impacts them and their particular circumstances.
• As this letter was intended for a client, I kept statutory references to a minimum and summarised the relevant provisions in layman’s terms. After all, client’s do not want to have to wade through statutory provisions and legal jargon – this is partly why they hire lawyers! Had the client’s instructions not asked about two specific statutory provisions, I might have avoided statutory references altogether.
• When working on a case study, always check who the intended recipient is. A letter for a client will likely need to be in plain English with few (or no) legal references, whereas a letter to an in-house lawyer at a client business, or a note to a legal supervisor, can often be more technical and set out the sources you have used. Of course, if you’re told to use statutory references, do so.