Planning judgment on air quality: contemporary commercial thinking exposed?

On 12th September 2019 the Court of Appeal handed down its judgment upholding refusals to grant two related planning permissions for large residential developments in Kent. Whilst the reasoning for the refusals, and the subsequent appeals against the refusals, are interesting in their own right, the greater interest, in terms of this article, is that the prime ground for the refusals, namely air quality, lies on one of many environment fault lines between the contemporary commercial world and what is to come.

Large scale developments potentially lock in contemporary standards, processes, activities, thinking and the like for decades to come. If these are harmful or unfit for the future, then likewise significant harm will be locked in for decades. In this light, legal decisions which arbitrate between the current and the future, are hugely interesting. Whilst this particular case related to issues surrounding existing poor air quality and legal provisions concerning air quality, it would be prudent to take heed of the judgment in wider terms, say climate change and some aspects of the wider sustainability agenda, where there is considerable debate as to the extent that contemporary commercial thinking and the future world are aligned.

Background

The case in question is Gladman Developments Ltd (“Gladman”) v Secretary of State for Communities and Local Government and others [2019] EWCA Civ 1543. In January 2015, Gladman applied for planning permission from Swale Borough Council (the “Council”) for two residential developments on farmland in Kent, England, totalling approximately 590 units. Importantly, both sites were located within an area in which pollutant limit values under the Air Quality Directive were exceeded. Notably there were two relevant air quality management areas (Rainham and Newington) to be taken into consideration. The Council failed to decide either application within the legislative time limits and so Gladman appealed to the Planning Inspectorate (“PINS”). Following a six-day inquiry, the PINS Inspector dismissed the appeals.

Prior to the inquiry, a long running dispute between ClientEarth (an environment law action group) and the UK Government culminated in a well-publicised defeat in the Courts of the Government over breaches in respect of obligations imposed by the EU Air Quality Directive (see below). Having been defeated, the UK Government was again taken to court by ClientEarth over plans to rectify such breaches in response to the first judgment and again the UK Government lost. This second judgment, R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs (No. 2) [2016] EWHC 2740 (“ClientEarth No.2”) was handed down on the second day of the inquiry. This had a significant influence on the Inspector’s decision. The Inspector’s refusal was based almost entirely on the likely negative effect that the developments would have on air quality in the local area given the increased vehicle traffic that they would attract.

Gladman challenged the Inspector’s decision in the High Court. It lost that appeal and appealed again to the Court of Appeal. Again, Gladman lost.

The Legal Background

Air Quality Regime

Article 13 of Directive 2008/50/EC on ambient air quality and cleaner air for Europe (the “Air Quality Directive”) sets legally binding limit values for concentrations of certain pollutants that may have a significant negative impact on public health. In areas where a limit value is exceeded, known as Air Quality Management Areas, Article 23 of the Air Quality Directive requires Member States to prepare and implement an air quality management plan in order to ensure that the exceedance period is kept as short as possible.

This Directive was transposed into UK law by the Air Quality Standards Regulations 2010. The Secretary of State for Environment, Food and Rural Affairs has responsibility for meeting the limit values in England and the Department for Environment, Food and Rural Affairs (“DEFRA”) co-ordinates assessment and air quality plans for the UK as a whole.

National Planning Policy Framework (“NPPF”)

The relevant NPPF (2012) referred explicitly to air quality targets, stating at para 124 that “planning policies should sustain compliance with and contribute towards EU limit values or national objectives for pollutants, taking into account the presence of Air Quality Management Areas and the cumulative impacts on air quality from individual sites in local areas. Planning decisions should ensure that any new development in Air Quality Management Areas is consistent with the local air quality action plan.”

In more general terms, para 120 provided that “to prevent unacceptable risks from pollution…planning policies and decisions should ensure that new development is appropriate for its location.” The borough’s local plan made a similar general statement to the effect that, for any development, “the adverse impacts [should] be minimised and mitigated.”

Similar wording is found in the current 2019 NPPF.

ClientEarth (No.2)

The Hon. Mr Justice Garnham made a declaration, in that case, that the Government’s air quality plan did not meet its obligations under the Air Quality Directive and ordered the Secretary of State to publish a modified air quality plan. This decision was handed down on the second day of the PINS inquiry and significantly influenced the Inspector’s decision.

The Inspector’s Decision

As the Council failed to decide Gladman’s applications within the legislative time limit, Gladman appealed to PINS, and following analysis of different scenarios that had been modelled by Gladman and its advisors, the appointed Inspector decided against Gladman on 9th January 2017. He found that, even with proposed mitigation measures, the developments would likely have a moderately adverse impact on air quality, particularly in the designated Newington and Rainham air quality management areas, “and thus a significant effect on human health”. In terms of proposed mitigation measures he concluded “…there is no clear evidence to demonstrate their likely effectiveness, and it may well be that the contributions to fund the measures fail to reflect the full scale of the impacts”.

The emphasis that the Inspector placed on this factor was no doubt influenced by the decision in ClientEarth (No.2). Indeed, he noted at para. 92 that “Added emphasis to the urgency of meeting the limit values for air pollutants was given by the decision of the High Court [in Client Earth (No.2)] quashing the Government’s 2015 Air Quality Plan. That Court had decided that the plan should have sought to achieve compliance by the earliest possible date rather than selecting 2020 as its target date. It also found that the Government had adopted too optimistic a model for future vehicle emissions”.

The High Court and the Court of Appeal

Gladman appealed the Inspector’s refusal to the High Court which roundly rejected the appeal. Permission to appeal further to the Court of Appeal was granted on 3rd October 2018. This appeal was heard around seven months later on 8th May 2019 and judgment handed down on 12th September 2019, a further four months later. Again, the appeal was roundly rejected.

Application of ClientEarth (No.2)

The Court of Appeal found that the Inspector had properly engaged with and understood the decision in ClientEarth (No.2). The fact that the court in ClientEarth (No.2) had ordered the Government to modify its air quality plan did not mean that the Inspector was required to assume that local air quality would improve by any particular amount within any particular timeframe. Further, the Court agreed with the Inspector’s point that although the Government is responsible for ensuring that air quality limit values are met, in practice most of the actions necessary to achieve compliance are devolved to local authorities.

Application of paragraph 122 NPPF

Para 122 NPPF 2012 required planning authorities to assume that separate pollution control regimes will operate effectively. The Court of Appeal disagreed with Gladman’s contention that this meant that the Inspector was required to assume that the Government’s air quality plan would be effective. The Court of Appeal concluded that there was “no requirement to assume the Government would have complied with the Air Quality Directive by the time the development was carried out.”

Mitigation Measures

Gladman had proposed mitigation measures and financial contributions, including electric vehicle charging points and ‘green’ travel incentives, that had been calculated using the DEFRA-approved “damage cost analysis”. Gladman’s submission was, in essence, that this meant that it was not open to the Inspector to find that the mitigation measures were insufficient. Again, the Court of Appeal disagreed and found that the Inspector was entitled to conclude that there was no clear evidence to demonstrate their likely effectiveness and was not required to accept that “because an appropriate arithmetical method had been used in calculating the level of financial contributions, the mitigation measures themselves would be effective.”

Comment

Should there be sympathy for Gladman’s position? Gladman had not caused any air pollution. The air pollution and its causes were already present. To rub salt into the wound, incumbent development not only is responsible for the air pollution but that same air pollution effectively barred Gladman as a new entrant. At a high level this appears unfair, more particularly as Gladman’s developments would have provided much-needed housing, employment opportunities, infrastructure improvements and increased public open space. By the same token, as air quality in the locality was a known significant issue, more development of the kind proposed by Gladman (which in real terms was seen as contemporary), would have added to the existing harm, at least for the foreseeable future. In such circumstances whilst existing incumbents may continue to contribute to poor air quality with impunity, it is also not an attractive argument that new entrants operating on largely contemporary models should be allowed to exacerbate the issue of poor quality pending a wider solution.

This case is of course particular to its facts, and to the specific policy and legal provisions on air quality. Having said this there are other fault lines between environment issues and contemporary business models and maybe this case should be viewed as a further warning sign, both in areas of existing known environment issues but in a broader context too, that more is required to ensure that development is appropriate and properly located. Climate change is an obvious one. Biodiversity is another. We doubt that it would be a surprise to see increasingly complex and difficult contests arising over whether contemporary commercial approaches are fit for the future world.