Court of Appeal rules on air quality considerations in planning appeals
Planning and Environment, Public Law and Judicial Review
Yesterday, the Court of Appeal handed down judgment in Gladman Developments Ltd v SSCLG & CPRE (Kent)  EWCA Civ 1543.
The ruling will be key for developers when promoting schemes with an effect on Air Quality Management Areas (AQMA). They will need to clearly show how a financial contribution (calculated in accordance with the Defra model) will translate into tangible measures which will avoid a worsening in air quality.
Gladman had sought to quash the decision of Inspector Clews to refuse planning permission for 140 new homes in Newington, Kent.
CPRE (Kent) appeared as a Rule 6 Party at the inquiry arguing that the appeal should be dismissed due to a failure to mitigate the adverse effects on the designated Newington and Rainham AQMAs. The Inspector agreed.
Gladman had proposed a fund, calculated in accordance with the Department for Environment Food & Rural Affairs (DEFRA) damage cost analysis model. However, the Inspector found there to be no evidence of the likely effectiveness of the indicative mitigation measures to reduce private petrol and diesel vehicles, and thus reduce NO2 emissions.
Gladman challenged that conclusion on a number of fronts, including the following:
- The Inspector failed to understand and then apply the ratio of R(Client Earth (No.2)) v SSEFRA  EWHC 2740 (Admin). Namely that the Government had been ordered to produce a plan, at the earliest possible opportunity, which secured compliance with the Air Quality Directive at the earliest possible opportunity and, in any event, before 2020.
- The Inspector failed to give effect to the principle at paragraph 122 NPPF (now paragraph 183 NPPF) that the planning system should presume that other regimes will operate effectively.
- The Inspector failed to explain why the DEFRA damage-cost analysis and associated contribution were unlikely to be effective.
- The Inspector should have considered imposing a Grampian condition.
- The Inspector did not point to an explicit part of the AQMA with which the scheme conflicted.
Supperstone J rejected those grounds and the Court of Appeal dismissed the onward appeal. Lindblom LJ (with whom McCombe and Peter Jackson LJJ agreed) held:
- The Inspector was not obliged to embark on “predictive judgments about the timing and likely effectiveness of the Government’s response to the decision in ClientEarth (No.2), and the requirement to produce a national air quality plan compliant with the Air Quality Directive” (para.35).
- Paragraph 122 NPPF (now paragraph 183 in the 2019 NPPF) was not engaged by reference to the UK Government’s obligations under the Air Quality Directive. Paragraph 122 NPPF “was directed to situations where some proposed process or operation liable to cause pollution is subject to control under another regulatory regime … its purpose was to avoid needless duplication between two schemes of statutory control“. That was not the case with the national air quality regime (para.45).
- As to the DEFRA damage-cost analysis: “[i]t was not the methodology that was in contention. It was the likely effectiveness of the financial contributions themselves when translated into practical measures” (para.52).
- There is no principle of law or statement of policy that an Inspector must always, even if entirely unprompted by any of the parties, “seek to make an unacceptable proposal acceptable by imposing a planning condition in “Grampian” form to prevent the development going ahead until a particular objection to it is overcome”. Although there may be cases where failing to consider a condition would be unreasonable (paras.63-64 and 69).
- As the essential purpose of the air quality action plans is to improve air quality in the Air Quality Management Areas development which was likely to worsen air quality in a material way was inevitably inconsistent with the relevant Air Quality Plans (para.77).
Ashley Bowes acted for CPRE (Kent) instructed by Kristina Kenworthy of Richard Buxton Solicitors.