Yesterday, the High Court (Supperstone J) rejected a claim by Gladman Developments Ltd, which sought to quash the decision of Inspector Clews to refuse planning permission for 140 new homes in Newington, Kent.
The decision is essential reading for planning authorities, developers and those seeking to resist development where there is an identified adverse effect on an Air Quality Management Area (AQMA).
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:
(i) 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.
(ii) The Inspector failed to give effect to the principle at paragraph 122 NPPF that the planning system should presume that other regimes would operate effectively.
(iii) The Inspector failed to explain why the DEFRA damage-cost analysis and associated contribution were unlikely to be effective.
(iv) The Inspector should have considered imposing a Grampian condition.
Supperstone J rejected those submissions, finding that:
(i) The Inspector understood Client Earth (No.2) but was under no obligation to assume local air quality would improve by any particular amount within any particular timeframe at  and . It was not known, at the time of the decision, what measures the new draft Air Quality Plan would contain, let alone what the final Plan would contain after consultation. It was also not known how any national measures would relate to local measures, nor the timeframe in which they would come forward. Accordingly, the Inspector was entitled to consider the evidence and not simply assume the UK would soon by compliant with the Directive at .
(ii) Paragraph 122 of the National Planning Policy Framework (NPPF) and the principle in Gateshead MBC v SSE  Env. L.R. 37 are not engaged in the consideration of air quality. The Directive is not a "parallel consenting regime" to which paragraph 122 NPPF is directed. There is no separate licencing or permitting decision after the grant of planning permission to address the air quality impacts of the development at .
(iii) The financial contribution had not been shown to translate into actual measures likely to reduce the use of petrol or diesel vehicles, and thus reduce NO2 emissions at .
(iv) No Grampian condition had been suggested by Gladman. In such circumstances the Inspector is not required to "cast about" for conditions see: Top Deck Holdings Ltd v SSE  JPL 961 per Mann LJ at p.965. In any event, given the Inspector's finding as to the effectiveness of the proposed mitigation, it was questionable whether such a condition could lawfully have been imposed at .
Where adverse impacts on air quality are identified, it is sensible to use the DEFRA damage-cost model to calculate a contribution, but thought should be given to demonstrating how the financial contribution will translate in practical measure to reduce NO2 emissions.
For example, a practical measure which might be funded might include the provision of electric charging ports for electric vehicles. Evidence from other projects could be used to inform a reasonable assumption as to the likely percentage shift to electric vehicles relative to the provision.
A copy of the judgment can be found here.
Dr Ashley Bowes acted for CPRE (Kent), instructed by Kristina Kenworthy of Richard Buxton Environmental & Public Law Solicitors.