Homes refusal on air quality grounds confirmed as correct

The High Court correctly rejected a developers' challenge to an appeal inspector's refusal of two housing proposals in Kent, the Court of Appeal has held.

The schemes involved between 140 and 300 dwellings together with extra care accommodation on land within designated air quality management areas. The inspector decided (DCS Number 200-008-801) that the allowable annual average limit for nitrogen dioxide concentrations would be exceeded by the proposals and that planned mitigation measures would be ineffective in ensuring no substantially adverse impact on air quality.

The High Court noted the judgment in ClientEarth v Secretary of State for the Environment, Food and Rural Affairs [2016], which mandated the UK government to ensure that air quality targets meet the European directive by the soonest possible date.This did not mean that the developments would be acceptable in advance of  the UK government having to meet the required air quality standards, it held.

Lord Justice Lindblom examined the inspector’s reasons and Mr Justice Supperstone’s High Court ruling. In his opinion, the inspector had correctly interpreted the ClientEarth judgment and had not been obliged to rely on the developers’ argument that the UK government must put in place measures to ensure that local air quality around the appeal sites, including nitrogen dioxide levels, remain within permitted levels under the Air Quality Standards Regulations (2010).

In his view, the judgment in Shirley v Secretary of State for Housing, Communities and Local Government [2019] confirmed that the duty to produce and implement air quality plans does not mean that local planning authorities should presume that the UK will become compliant with the air quality directive.

Neither, he opined, was the inspector, when applying paragraph 122 of the NPPF, obliged to assume that other statutory regimes would be effective in ensuring delivery of compliant air quality levels. He noted that the 2010 regulations are not a licensing or permitting regime, but merely impose obligations on the government to achieve compliance. The NPPF does not require decision-makers to assume that government will act expeditiously in implementing and regulating air quality plans, he held.

The court concluded that the inspector had been entitled to conclude that financial contributions towards the impact on air quality were likely to be ineffective. In its view, he had explained why he felt the contributions would not translate into actual measures to reduce use of private vehicles and thereby reduce emissions. Nor had the inspector been obliged to consider imposing a Grampian condition to preclude any development until a workable scheme had been agreed, it ruled. The challenge was dismissed on all grounds.

 Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government and Swale Borough Council

 Date: 12 September 2019

 Ref: [2019] EWCA Civ 1543


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