Gladman High Court judgement clarifies developer requirements for air quality assessments

Gladman High Court judgement clarifies developer requirements for air quality assessments

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Jon Pullen, Operational Director, discusses the recent Gladman High Court judgement and the implications this decision will have for similar future developments.

Earlier this month, the High Court rejected Gladman Development’s action which sought to quash the decision of Inspector Clews to refuse planning permission for 140 new homes in Newington, Kent. The Inspector had dismissed the initial appeal because of a lack of evidence to support the effectiveness of measures that Gladman had proposed to mitigate the adverse effects that nitrogen dioxide (NO2), from the development traffic, would have on an Air Quality Management Area (AQMA) in the locality. The mitigation measure proposed was a financial contribution in the form of an off-setting fund.

Under the Environment Act, a local authority must declare an AQMA if air pollution concentrations exceed Air Quality Objectives in locations where the public is regularly present. The Objective for NO2 under the Environment Act is numerically identical to the EU Limit Value that central government has a separate legal duty to comply with under the Air Quality Directive.

Gladman challenged the Inspector’s decision on a number of fronts related to air quality, but of particular note was their assertion that the Inspector had failed to take proper account of the 2016 Client Earth judgement. This ordered the Government to produce a plan to secure compliance with the Air Quality Directive at the earliest possible opportunity and, in any event, before 2020.

The Judge rejected this argument because at the time of decision it was not known what measures would be contained in the Government’s draft Air Quality Plan, let alone the final plan after consultation. Also unknown was how any national measures would relate to local measures, or the timeframe in which they would come forward. Accordingly, the Inspector was entitled to consider the evidence presented and not simply assume that UK would be compliant with the Air Quality Directive in the near future.

This decision has implications for other future developments and sends a clear message that air quality effects must continue (at least for the time being) to be assessed on a local basis, taking local circumstances into account.

It is worth noting that the Government has now issued its final ‘UK plan for tackling roadside nitrogen dioxide concentrations’; published in July 2017, the plan lays out how roads with NO2 concentrations above the EU Limit Value will be reduced to compliant levels within the shortest possible time. However, the plan has been criticised as weak and on 7th November Client Earth confirmed that it is yet again taking the Government back to court on the basis of the plan not being sufficient.

In addition, the atmospheric model used by Defra to nationally identify areas exceeding the EU Limit Values has a poorer resolution than the assessments used by local authorities to identify exceedances of Air Quality Objectives in their local areas.

In other words, there could potentially be numerous AQMAs that remain unaffected by improvements in the national plan; making it anything but a suitable panacea for every air quality problem across the UK. It is clear therefore that, for many developments, air quality will remain a material consideration for some time yet.

RPS provides expert consultancy advice on all aspects of air quality, for more information contact Jon Pullen.