What the latest court setback for the government's air quality strategy means for planning

The government's air quality strategy has been faulted for doing too little to enforce European air quality standards in some areas. Applicants in 33 local authority areas can expect increased scrutiny and more demands for mitigation, say experts.

London's Royal Courts of Justice
London's Royal Courts of Justice

A High Court judge ruled last week that the latest version of the government’s 2017 Air Quality Plan is unlawful – the third time it has been struck down by the courts since the original plan was produced in 2011. In his ruling, Mr Justice Garnham found the plan did not do enough to force 45 local authorities in England to comply with a 2008 European Union directive on air quality. Air quality thresholds are currently exceeded in these ‘marginal’ councils, but they are expected to achieve compliance by 2021. 

The judge said that "polite letters from the government urging additional steps by individual local authorities are not enough" to meet its obligation to ensure that air quality plans are established in these areas. However, David Deakin, technical director of air quality, environment and ground engineering at consultancy Aecom, said that 12 of these councils will escape any extra work as a result of the judgment because they are on track to achieve compliance with the directive this year. 

The other 33 affected councils will be required to draw up feasibility studies to address their non-compliance, Deakin said. "For these authorities and applicants, development plans and applications will need to be developed to be sensitive to those areas where Defra’s Pollution Climate Mapping model indicates there is non-compliance, to avoid worsening the situation that the authorities’ feasibility plan will be endeavouring to rectify."

Rose Grogan, environmental barrister at 39 Essex Chambers, said the government is now likely to shift the burden of compliance further onto local authorities, requiring them to come up with specific measures and a timetable. "In my view, local authorities may choose to introduce more robust controls on developments that contribute to poor air quality. They may also attempt to use section 106 agreements to generate funds for air quality measures or to secure further green infrastructure."

The ruling will be unlikely to affect strategic planning policy significantly in the 45 areas, according to Daniel Clampin, senior environmental consultant at planning consultancy WYG. However, he said that councils are likely to require developments coming forward in these areas to include additional mitigation measures "due to increased awareness and objections". "Such measures are already included in many local plans but authorities are currently inconsistent in their enforcement," he said.

Kevin Gibbs, head of strategic planning and senior counsel at law firm ‎Womble Bond Dickinson, said promoters of infrastructure projects in the 45 local authority areas should expect councils to adopt revised measures that could affect their schemes. "In particular, development in or near poor quality areas may expect more scrutiny on traffic impacts, and authorities may look for contributions to provision of wider air quality measures," he said.

Experts said that the judge’s rejection of two other parts of the challenge will provide greater certainty for authorities across the country. Firstly, the judge rejected a claim that the 2017 plan relies on national measures which have not been properly modelled. Deakin said that, if the judge had accepted ClientEarth’s argument on this point, "an approach to determine which data should take precedence in the decision-making process would be required", which would have added more complexity to local authority decision-making on planning applications.

Secondly, the judgment rejected the claim that the air quality plan failed to provide any legal obligation for five cities including London, which are not expected to reach compliance until 2028, to deliver Clean Air Zones. Michael Humphries, environmental and planning barrister at Francis Taylor Building, welcomed the certainty that this part of the ruling provides, along with the measures to take tougher action in the 45 ‘marginal’ local authority areas.

Humphries said that early action on improving air quality is likely to mean that future infrastructure projects will be less likely to push local authority areas over the air quality limits. "In broad terms," he said, "this is good news for the developers of future infrastructure projects as background levels will be much lower by the time they generate road traffic movements and thus exceedances of EU ‘limit values’ are less likely to be created or exacerbated."

The judgment is the third time that courts have ruled against different versions of the Department of the Environment, Food and Rural Affairs’ air quality plan. The original version was successfully challenged by environmental campaign group ClientEarth in 2015, as was its replacement in 2016. 

Responding to the most recent ruling, a government spokesperson said: "The judge found that our modelling is compliant and that our approach to areas with major air quality problems is ‘sensible, rational and lawful’".

"The court has also asked us to go further in areas with less severe air quality problems. We had previously considered that it was sufficient to take a pragmatic, less formal approach to such areas. However, in view of the court’s judgment, we are happy to take a more formal line with them."

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