Gladman Developments Ltd v 1) Secretary of State for Communities and Local Government and Another Campaign to Protect Rural England (Kent Branch) (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 06 November 2017 |
| Neutral Citation | [2017] EWHC 2768 (Admin) |
| Docket Number | Case No: CO/873/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 November 2017 |
[2017] EWHC 2768 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
IN THE MATTER OF AN APPLICATION UNDER SECTION 288
OF THE TOWN AND COUNTRY PLANNING ACT 1990
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Supperstone
Case No: CO/873/2017
and
Richard Kimblin QC (instructed by Irwin Mitchell LLP) for the Claimant
Richard Moules (instructed by Government Legal Department) for the First Defendant Second Defendant did not appear and was not represented at the hearing
Ashley Bowes (instructed by Richard Buxton Environmental and Public Law) for the Interested Party
Hearing dates: 18–19 October 2017
Introduction
The Claimant applies pursuant to section 288 of the Town & Country Planning Act 1990 to quash the Decision dated 9 January 2017 of Roger Clews, an Inspector appointed by the First Defendant, who determined two appeals (Appeal A and Appeal B) on a conjoined basis at an Inquiry during November 2016 against refusals of planning permission for residential development for 330 (Appeal A) and 140 (Appeal B) dwellings plus 60 extra care units ("the Decision"). Lang J granted permission on all grounds.
The Claimant's planning application relates to land at London Road, Newington, Kent ("the Site").
The Second Defendant is the local planning authority for the area in which the Site is situated ("the Council"). It has filed summary grounds of defence maintaining that the Decision was lawful, but it was not separately represented at the hearing.
The Interested Party ("CPRE") was a "Rule 6" party at the inquiry.
Eleven main issues were considered at the inquiry. The Claimant succeeded on nine of those issues. The Claimant's arguments were not accepted on two issues:
i) Landscape character (the third issue); and
ii) Air quality (the eighth issue).
This claim is only concerned with air quality.
The legislative framework on air quality
In Client Earth (No. 2) v Secretary of State for the Environment, Food & Rural Affairs [2016] EWHC 2740 (Admin), Garnham J sets out at paras 6–15 the relevant provisions of the Air Quality Directive (2008/50/EC) ("the Directive") and the Air Quality Standards Regulations 2010 ("the Regulations").
The Judge stated, so far as is material:
"9. The articles of the Directive … include Article 2, which adopts definitions from earlier Directives, including the following:
" 'ambient air' shall mean outdoor air in the troposphere excluding workplaces…
'limit value' shall mean a level fixed on the basis of scientific knowledge, and with the aim of avoiding, preventing or reducing harmful effects on human health and/or the environment as a whole, to be attained within a given period and not to be exceeded once attained;
'air quality plans' shall mean plans that set out measures in order to attain the limit values or target values;
'margin of tolerance' shall mean the percentage of the limit value by which that value may be exceeded subject to the conditions laid down in this Directive;
'target value' shall mean a level fixed with the aim of avoiding, preventing or reducing harmful effects on human health and/or the environment as a whole to be attained where possible over a given period;
'zone' shall mean part of the territory of a Member State, as delimited by that Member State for the purposes of air quality assessment and management;
'agglomeration' shall mean a zone that is a conurbation with a population concentration in excess of 250,000 inhabitants or, where the population concentration is 250,000 inhabitants or less, with a given population density per km to be established by the Member State…"
10. Article 13 imposes limit values and alert thresholds for the protection of human health. It provides:
" 1. Member States should ensure that throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.
In respect of nitrogen dioxide and benzene the limit values specified in Annex XI may not be exceeded from the date specified therein".
11. Article 22 provided for postponement of attainment deadlines and exemption from the obligation to apply certain limit values.
" 1. Where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified in Annex XI, a Member State may postpone those deadlines by a maximum of 5 years for that particular zone or agglomeration on condition that an air quality plan is established in accordance with Article 23 for the zone or agglomeration to which the postponement would apply; such air quality plan should be supplemented by the information listed in Section B of Annex XV related to the pollutants concerned and shall demonstrate how conformity will be achieved with the limit values before the new deadline".
12. Article 23 … provides for AQPs:
" 1. Where, in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value or target value specified in Annexes XI and XIV.
In the event of exceedances of those limit values for which the attainment deadline is already expired, the air quality plans shall set out appropriate measures, so that the exceedance period can be kept as short as possible. The air quality plans may additionally include specific measures aiming at the protection of sensitive population groups, including children."
13. Annex XI sets out limit values for the protection of human health. For nitrogen dioxide the limit value in any given hour is 200ug/m 3, which is not to be exceeded more than 18 times in a calendar year, and 40ug/m 3 which applies to each calendar year.
…
15. The Directive was brought into domestic law in the UK by means of four sets of Regulations, one for each of the home nations. … Regulation 26 of the Air Quality Standards Regulations (2010/1001) requires the drawing up of AQPs [for England]. It provides, as is material:
" (1) Where the levels of sulphur dioxide, nitrogen dioxide, benzene, carbon monoxide, lead and PM10 in ambient air exceed any of the limit values in Schedule 2 or the level of PM2.5 exceeds the target value in Schedule 3, the Secretary of State must draw up and implement an air quality plan so as to achieve that limit value or target value.
(2) The air quality plan must include measures intended to ensure compliance with any relevant limit value within the shortest possible time…
(4) Air quality plans must include the information listed in Schedule 8…""
The background
Garnham J noted in Client Earth (No. 2) that: (1) in previous proceedings between the parties, in which the Claimant, Client Earth, challenged previous AQPs, produced by the UK Government, the Supreme Court made a declaration that the UK was in breach of Article 13 of the Directive (para 3). (2) On 17 December 2015, in purported compliance with the order of the Supreme Court and the provisions of the Directive, DEFRA published the Government's 2015 Air Quality Plan which addressed the need to reduce nitrogen dioxide emissions (para 4). (3) Client Earth challenges the lawfulness of that plan (para 5). The judge concluded that it would be appropriate to make a declaration that the 2015 AQP fails to comply with Article 23(1) of the Directive and Regulation 26(2) of the Regulations, and an order quashing the plan (para 95(iv)).
His reasons for so concluding are set out at para 95(i)–(iii):
"(i) that the proper construction of Article 23 means that the Secretary of State must aim to achieve compliance by the soonest date possible, that she must choose a route to that objective which reduces exposure as quickly as possible, and that she must take steps which mean meeting the value limits is not just possible, but likely;
(ii) that the Secretary of State fell into error in fixing on a projected compliance date of 2020 (and 2025 for London);
(iii) that the Secretary of State fell into error by adopting too optimistic a model for future emissions."
The Government published its new draft National Air Quality Plan on 5 May 2017, with public consultation running until 15 June 2017.
The Decision Letter ("DL")
The Inspector dealt with issue 8 at DL90–106.
At DL90 he referred to Local Plan policy SP2 which requires adverse environmental impacts of development to be avoided or minimised and mitigated where development needs are greater. He also referred to NPPF paragraph 120 which requires the effects of pollution and the potential sensitivity of the area to its effects to be taken into account in planning decisions, and to NPPF paragraph 124 which advises that any new development in Air Quality Management Areas ("AQMAs") should be consistent with the local air quality management plan.
At DL91 he identified the relevant pollution limit values, based on the Directive, which as set out in the Air Quality Standards Objectives Regulations 2010, include a limit value of 40 micrograms per cubic metre for the annual mean concentration of nitrogen dioxide ("NO 2"). He noted that while the Government is responsible for ensuring that these limit values are met, in practice most of the actions necessary to achieve this are devolved to local authorities.
At DL92 he noted the added emphasis to the urgency of meeting the limit values for air pollutants given by the decision in Client Earth (No. 2) where the...
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