Gladman Developments Ltd v Secretary of State for Communities and Local Government and others – Town and country planning – Environment – Air quality – Local authority refusing planning permission for residential developments – Planning inspector dismissing appeals – High Court dismissing application for judicial review – Developer appealing – Whether inspector erring in finding adverse effect of development on air quality – Whether proposals conflicting with National Planning Policy Framework (NPPF) –Whether inspector failing to deal properly with proposed mitigation – Appeal dismissed
The appellant developer appealed against an order dismissing its application pursuant to section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector appointed by the first respondent secretary of state dismissing appeals against refusals of planning permission by the second respondent local authority for residential development for 330 and 140 dwellings on land at London Road, Newington, Kent: [2017] EWHC 2768 (Admin); [2017] PLSCS 203.
The inspector concluded that, against 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 the relevant 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 third respondent was an objector to the proposed development and actively opposed the challenge to the inspector’s decision.
The three broad issues were: (i) whether the inspector failed to grasp the significance of the decision in Client Earth (No.2) v Secretary of State for the Environment, Food & Rural Affairs [2016] EWHC 2740 (Admin); [2016] PLSCS 294, and the policy in para 122 of the NPPF that the planning system should presume that other regimes would operate effectively; (ii) whether he failed to deal properly with the proposed mitigation and should have considered a condition preventing the development going ahead until effective mitigation had been secured (a “Grampian” condition), and whether his decision was vitiated by procedural unfairness; and (iii) whether he failed properly to explain how the appellant’s approach to mitigation departed from air quality action plans.
Held: The appeal was dismissed.
(1) On the evidence at the time of the inspector’s decision, he drew reasonable and lawful conclusions on the future air quality baseline. The inspector saw the true significance and effect of the judgment in ClientEarth (No.2). He considered the evidence before him, in particular the circumstances of the local area, including local air quality and was not obliged to embark on predictive judgments about the timing and likely effectiveness of the Government’s response to the ClientEarth decision and the requirement to produce a national air quality plan compliant with the Air Quality Directive 2008/50. The inspector had to form his own judgment on what measures the new draft national air quality plan would contain or the soonest date by which the new plan would aim to achieve compliance.
(2) The NPPF did not compel the inspector to assume that the requirements of the Air Quality Directive would have been complied with soon enough, and in such a way, as to make the effects of the proposed development on air quality acceptable. The Air Quality Directive was not a parallel consenting regime to which the presumption in para 122 of the NPPF was directed. Paragraph 122 was directed to situations where some proposed process or operation liable to cause pollution was 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.
(3) It was for the inspector to consider, in the exercise of his planning judgment, whether the mitigation would be effective. He was not confident that it would. Disagreement with that conclusion was not a proper basis for complaint in proceedings such as the present. The conclusion was not irrational. It was not the outcome of an unduly stringent test of certainty being applied. It was not inadequately explained but was a conclusion reached in the absence of specific evidence to show how effective the proposed mitigation measures were likely to be in reducing the use of private petrol and diesel vehicles and forecast NO2 emissions.
(4) There was no statutory requirement, or principle of law, that in determining an appeal under section 78 of the Town and Country Planning Act 1990, the secretary of state, or his inspector, always had to 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 was overcome. There was nothing to suggest that the appellant was willing to increase its contributions or strengthen the mitigation or to advance some alternative mitigation strategy, and no evidence of what such an alternative mitigation strategy might involve. Having rejected the appellant’s case on air quality, the inspector could not be expected to grant planning permission with a “Grampian” condition making the development depend on materially different, and unknown, mitigation measures coming forward at some later stage. Moreover, there was no procedural unfairness as the appellant had known the case it had to meet and could have adduced evidence and made submissions on the mitigation measures, including suggesting a “Grampian” condition if it wanted to do so: Top Deck Holdings v Secretary of State for the Environment [1991] JPL 961 applied. Marie Finlay v Secretary of State for the Environment [1983] JPL 802, Grampian Regional Council v City of Aberdeen District Council (1983) 47 P&CR 633 and West v First Secretary of State [2005] EWHC 729 (Admin) and Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2014] 2 EGLR 91; [2014] EGILR 31 considered.
(5) As an essential purpose of the air quality action plans was to improve air quality in the AQMAs which, as the air quality action plan made quite clear, might require planning permission to be refused where effective mitigation could not be secured, the proposed development, judged likely to worsen air quality in a material way because the proposed mitigation had not been shown to be effective, was inevitably inconsistent with the air quality action plans. That was obvious and there was no reason for the inspector to say so.
Richard Kimblin QC and Oliver Lawrence (instructed by Addleshaw Goddard LLP) appeared for the appellant; Richard Moules (instructed by the Government Legal Department) appeared for the first respondent; the second respondent did not appear and was not represented; Dr Ashley Bowes (instructed by Richard Buxton Solicitors) appeared for the third respondent.
Eileen O’Grady, barrister
