Air quality breaches stops development which threatened to exacerbate them

Gladman Developments v. SoS for Communities and Local Government, Interested Party:CPRE [2017] EWHC 2768 (Admin) 6 November 2017 – read judgment

 

An interesting example of how our planners must take air pollution concerns far more seriously in the light of the long-running ClientEarth litigation.

The developers wanted to build a total of 470 dwellings and 60 care units in Newington, Kent. Their application went to appeal before a Planning Inspector, and they lost on air quality grounds. They unsuccessfully sought judicial review of his decision.

The immediate locality of these proposed developments was already in breach of the Air Quality Directive 2008/50/EC by reason of excessive nitrogen dioxide levels; the local council had declared two Air Quality Management Areas to address this. The developers accepted that their development would have a substantial or moderate impact on local monitoring sites via vehicle emissions; but contended that improvements in general emissions standards up to 2020 could be relied on to counteract this.

These air quality obligations are imposed via the portmanteau National Planning Policy Framework, which in this instance obliges any new developments to be consistent with the local air quality management plan.

I shall concentrate on the main arguments via which the developers sought to displace the Inspector’s conclusions.

Can we rely on UK compliance?

The recent ClientEarth litigation was the background for rival submissions on the central point. The developers said that because Government had been told by the Courts to achieve emissions targets in short a time as possible under Art.23 of the Directive, (rather than fixing on 2020 or 2025 for London), and would comply with the law accordingly, those improvements could be relied upon by the time that there were needed.

The SoS, supporting the Inspector, said that just because there was a UK duty to produce and implement a new air quality plan (the process being enforced by Garnham J here) did not mean that the UK would become compliant with the Directive in the near future. The Inspector could not know what was going to be in this plan (just about to be scrutinised by the courts again) and how effective it might be in securing compliance by any particular date.

On this central issue, Supperstone J held that the Inspector was entitled to form his own judgment on future air quality and not simply assume that the UK would comply with its Directive obligations.

There was plenty of evidence on which the Inspector could reach this conclusion, but his robustness and independence is comforting despite other arms of government (DEFRA) remaining in the firing line for air quality breaches.

But the developers tried another tack. There is a principle in planning law that a planning authority should assume that other regulators (say, the Environment Agency in respect of environmental permits) would do their job, and hence the planners don’t have to duplicate controls. The developers sought to harness this argument here, but received short shrift from the judge. The Directive and the UK’s obligations to comply with it could not be compared with the parallel licensing systems in other areas for which the non-duplicative rule was designed.

Mitigation

Another argument concerned mitigation. The developers had offered £311,000 towards mitigation measures, but the evidence did not support any such measures (such as more electricity charging points) going to the heart of the problem of increased vehicle emissions caused by the development. It is noticeable that a major contribution was made by Professor Peckham, a witness for the CPRE called at inquiry, who was sceptical about how such a sum of money could actually reduce pollution levels. As the CPRE put it in closing at inquiry

“The air pollution mitigation ‘contribution’, however large, does nothing for the adults and children being affected by air pollution now together with the greater harm that would result if the development(s) were granted permission.”

Conclusion

A robust inspector’s conclusion, well expressed, and here upheld by the Court.

The roles of the parties are important to note. The CPRE appeared at inquiry and called their own witness, whose evidence was accepted by the Inspector; an NGO making a difference to the result. Contrast the Council, who did not seek to take the Air Quality point at inquiry (which is a bit dispiriting, given their central role in enforcing air pollution on the ground), and did not appear at the judicial review. But the Defendant SoS (with responsibility for planning functions) did not shrink from supporting his inspector in a decision which is necessarily critical of SoS (environment) via the Client Earth saga.

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