Air quality breaches stops development which threatened to exacerbate them

13 November 2017 by

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.


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.”


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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:


Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: