Challenge to refusal of planning permission on air quality grounds

01 Jan 2018

Planning and Environment

The High Court (Supperstone J) has today reserved judgment after two days of oral argument in Gladman Developments Ltd v SSCLG & CPRE (Kent).

Gladman challenged the decision of an Inspector to dismiss an appeal for residential development, in part, because of the adverse effects on the Newington and Rainham Air Quality Management Areas (“AQMA”). That was the case advanced by the Rule 6 Party, CPRE (Kent).

In particular, the Inspector found that notwithstanding a financial contribution offered within a unilateral undertaking, that contribution was based on 2020 and not 2015 projections, which he found to be too optimistic. More importantly, there was no evidence of what the money would actually be spent-on, beyond an indicative list, and no evidence of the effectiveness of those indicative measures to address the impact on the AQMA.

The challenge is on a number of grounds, including that:

(i) the Inspector failed to have adequate regard to the judgment of Garnham J in R(Client Earth) v DEFRA. In particular, he failed to assume that measures would soon come forward at a national level which would be likely to bring emissions below the limit values in the Air Quality Directive.

(ii) the principle that other regulatory regimes should be presumed to operate effectively, found at paragraph 122 NPPF, applied in this instance and the Inspector should have proceeded upon that presumption.

(iii) the Inspector was in error to find the financial contribution inadequate mitigation for the reasons he did.

The judgment will provide important guidance to those promoting, determining and resisting development with the potential to affect AQMAs.

Ashley Bowes appeared for CPRE (Kent) instructed by Kristina Kenworthy of Richard Buxton Planning & Environmental Solicitors.