Town and country planning – Environment – Air quality – Local authority refusing planning permission for residential developments – Planning inspector dismissing appeals – Claimant applying for judicial review – Whether inspector erring in finding adverse effect of development on air quality – Whether proposals conflicting with para 124 of National Planning Policy Framework (NPPF) – Claim dismissed
The Claimant applied pursuant to section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector appointed by the first defendant secretary of state dismissing appeals against refusals of planning permission for residential development for 330 and 140 dwellings plus 60 extra care units on land at London Road, Newington, Kent.
The inspector concluded that, against all the social benefits of the developments, had to be set the strong likelihood that, notwithstanding proposed mitigation measures, the appeal proposals would contribute to at least “moderate adverse” impacts on air quality in both the Newington and Rainham Air Quality Management Areas (AQMAs). Thus they would be likely to have a significant adverse effect on human health. Those effects would conflict with the guidance in para 124 of the National Planning Policy Framework (NPPF).
The claimant contended that the inspector erred by failing to: (i) apply the outcome of Client Earth (No.2) v Secretary of State for the Environment, Food & Rural Affairs [2016] EWHC 2740 (Admin); [2016] PLSCS 294, in his understanding of the effectiveness of air quality action plans; (ii) give effect to the principle in para 122 of the National Planning Policy Framework (NPPF) that the planning system presumed that other schemes of regulatory control were legally effective; (iii) explain why application of the DEFRA damage cost analysis and associated contribution was not likely to be effective; (iv) consider the imposition of a Grampian condition requiring a higher contribution to the mitigation fund; (v) explain how the proposal was in conflict with the action plan, read as a whole; and (vi) consider a material consideration, namely the allocation of residential development within the AQMAs.
Held: The claim was dismissed.
(1) The inspector was not required to assume that local air quality would improve by any particular amount within any particular timeframe. The question of air quality and exceedance of any limit values or thresholds was clearly and obviously a material consideration in the decision whether or not to grant planning permission. The inspector had properly engaged with the Client Earth (No.2) decision. He understood what the judgment required, and carefully analysed the evidence that was presented before him. He formed a judgment as to what the air quality was likely to be in the future on the basis of that evidence. He was entitled to consider the evidence and not simply assume that the UK would soon become compliant with Air Quality Directive 2008/50: R (Shirley) v Secretary of State for Communities and Local Government [2017] EWHC 2306 (Admin) followed.
(2) Just as the environmental impact of such emissions was a material planning consideration, so also was the existence of a stringent regime for preventing or mitigating that impact for rendering any emissions harmless. Paragraph 122 of the NPPF was clear. The principle referred to therein concerned situations where a polluting process was subject to regulatory control under another regulatory scheme in addition to the planning system. It was directed at a situation where there was a parallel system of control. The Directive was not a parallel consenting regime to which para 122 was directed. There was no separate licensing or permitting decision that would address the specific air quality impacts of the claimant’s proposed development.
(3) It was plain from the evidence that the likely effectiveness of the mitigation measures was a live issue at the inquiry. The inspector was required to reach his own judgment on the matter. The inspector had reached a conclusion that, on the evidence, he was entitled to reach and he had explained what was wrong with the mitigation.
(4) The claimant had never suggested it would agree to be bound by a Grampian or any such condition. An inspector had no obligation to cast about for conditions that were not suggested to him. It was not suggested that if the inspector were unpersuaded by its evidence he should consider imposing a Grampian condition. The claimant having presented the inspector with two unilateral undertakings, he was entitled to take them as the claimant’s settled position in respect of mitigation. The court was satisfied from the evidence that the claimant knew the case which it had to meet and had an opportunity to adduce evidence and make submissions in relation to mitigation measures. Accordingly, the principle of fairness was satisfied: Top Deck Holdings v Secretary of State for the Environment [1991] JPL 961 followed. Marie Finlay v Secretary of State for the Environment [1983] JPL 802 and Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2014] 2 EGLR 91; [2014] EGILR 31 considered.
(5) The inspector had found that the proposed development would be likely to have an adverse effect on air quality, particularly in the AQMAs. That being so, it was obvious why the inspector concluded that the proposed development was inconsistent with the local air quality action plans that sought to ensure development did not harm air quality. The decision letter read as a whole made it clear to the parties that the inspector followed national policy, found there to be a breach of the air quality action plans and concluded that both proposals would conflict with the guidance in para 124 of the NPPF.
(6) It was clear that the inspector had dealt with the emerging plan and considered that little weight should be given to it. Further hearings were held before the inspector completed his report and recommendations and he was entitled to conclude that substantial uncertainty remained about exactly which site allocations would appear in the adopted emerging local plan and at what scale. New development had to be judged on its merits according to its air quality impacts and that was what the inspector did in relation to the claimant’s proposal.
Richard Kimblin QC (instructed by Irwin Mitchell LLP) appeared for the claimant; Richard Moules (instructed by the Government Legal Department) appeared for the first defendant; the second defendant did not appear and was not represented; Ashley Bowes (instructed by Richard Buxton Environmental and Public Law) appeared for the interested party.
Eileen O’Grady, barrister
