Gladman Developments Ltd v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Peter Jackson,Lord Justice McCombe |
| Judgment Date | 12 September 2019 |
| Neutral Citation | [2019] EWCA Civ 1543 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2017/3476 |
| Date | 12 September 2019 |
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[2019] EWCA Civ 1543
Lord Justice McCombe
Lord Justice Lindblom
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Lord Justice Peter Jackson
Case No: C1/2017/3476
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE SUPPERSTONE
Royal Courts of Justice Strand, London, WC2A 2LL
Mr Richard Kimblin Q.C. and Mr Oliver Lawrence (instructed by Addleshaw Goddard LLP) for the Appellant
Mr Richard Moules (instructed by the Government Legal Department) for the First Respondent
The Second Respondent did not appear and was not represented.
Dr Ashley Bowes (instructed by Richard Buxton Solicitors) for the Third Respondent
Hearing date: 8 May 2019
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
Did an inspector determining appeals under section 78 of the Town and Country Planning Act 1990 fail to deal lawfully with the likely effects of the proposed housing development on air quality? That is the main question in this appeal.
The appellant, Gladman Developments Ltd., appeals against the order of Supperstone J., dated 6 November 2017, dismissing its application under section 288 of the 1990 Act, by which it had challenged the decision of an inspector appointed by the first respondent, the Secretary of State for Communities and Local Government, in a decision letter dated 9 January 2017. The inspector dismissed two appeals under section 78. Each was against a failure by the second respondent, Swale Borough Council, to determine an application for outline planning permission for housing development on land at London Road, Newington: the first (“Appeal A”), for a development of up to 330 dwellings and 60 units of “Extra Care accommodation”; the second (“Appeal B”), for a development of up to 140 dwellings and 60 units of “Extra Care accommodation”. The council has taken no part in the proceedings, either in this court or below. The third respondent, Campaign to Protect Rural England (Kent Branch) (“CPRE Kent”), is an objector to the proposed development and a rule 6 party. It has actively opposed the challenge to the inspector's decision.
The appeal sites are farmland to the south of London Road. They are not allocated for development in the Swale Borough Local Plan 2008. The inspector held an inquiry into the appeals on six days between 1 and 22 November 2016. When the inquiry opened, he identified 10 “main issues”, and added another in the light of the representations of CPRE Kent (paragraph 14 of the decision letter). Gladman succeeded on nine of those issues, but not on the third – “[the] effect of the appeal proposals on landscape character and on the form of Newington” – or the eighth – “[the] effect of the appeal proposals, including any proposed mitigation measures, on air quality, particularly in the Newington and Rainham Air Quality Management Areas”. The challenge attacked the inspector's conclusions on the eighth issue alone.
Supperstone J. rejected every ground of the claim. I granted permission to appeal on 3 October 2018.
The issues in the appeal
There are six grounds of appeal. They contend that the judge's conclusions are contrary to Directive 2008/50/EC “on ambient air quality and cleaner air for Europe” (“the Air Quality Directive”) and irreconcilable with the decision of Garnham J. in R. (on the application of ClientEarth) (No.2) v Secretary of State for Environment, Food and Rural Affairs [2016] EWHC 2740 (Admin), [2017] P.T.S.R. 203, and that he was wrong to hold that the inspector could not reach a view on the likely effectiveness of measures to improve air quality in the national air quality plan (ground 1); that the inspector should have seen the relevance to his decision of the proposed measures to bring air quality within limit values, and the “presumption” in paragraph 122 of the National Planning Policy Framework, as published in March 2012 (“the NPPF”) (ground 2); that his approach to the mitigation measures proposed by Gladman was wrong (ground 3); that he erred in failing to consider the imposition of a suitable “Grampian” – or negative – condition (see Grampian Regional Council v City of Aberdeen District Council (1983) 47 P. & C.R. 633) (ground 4); that it was unfair of him not to give Gladman an opportunity to overcome the shortcomings he saw in the proposed mitigation (ground 5); and that he failed to provide adequate reasons for concluding that the proposals were inconsistent with the air quality action plans for Newington and Rainham, and contrary to the policy in paragraph 124 of the NPPF (ground 6).
Those six grounds produce three broad issues: first, whether the inspector erred in failing to grasp the significance of Garnham J.'s decision in the ClientEarth proceedings, and the policy in paragraph 122 of the NPPF (grounds 1 and 2); second, whether he failed to deal properly with the proposed mitigation, whether he should have considered a condition preventing the development going ahead until effective mitigation had been secured, and whether his decision is vitiated by procedural unfairness (grounds 3, 4 and 5); and third, whether he failed properly to explain how Gladman's approach to mitigation departed from the air quality action plans (ground 6).
The Air Quality Directive
Recital (2) to the Air Quality Directive states that “[in] order to protect human health and the environment as a whole, it is particularly important to combat emissions of pollutants at source and to identify and implement the most effective emission reduction measures at local, national and Community level”. Recital (9) says that “[where] the objectives for ambient air quality laid down in this Directive are not met, Member States should take action in order to comply with the limit values and critical levels, and where possible, to attain the target values and long-term objectives”. Recital (18) says that “[air] quality plans should be developed for zones and agglomerations within which concentrations of pollutants in ambient air exceed the relevant air quality target values or limit values … where applicable”.
Article 2, “Definitions”, defines a “limit value” as “a level fixed on the basis of scientific knowledge, 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”. Article 13, “Limit values and alert thresholds for the protection of human health”, requires Member States to “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”. It also states that “[in] respect of nitrogen dioxide and benzene, the limit values specified in Annex XI may not be exceeded from the dates specified therein”, and that “[the] alert thresholds for concentrations of sulphur dioxide and nitrogen dioxide in ambient air shall be those laid down in Section A of Annex XII”.
Article 23, “Air quality plans”, states:
“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. …”.
Annex XI, “Limit values for the protection of human health”, states that the limit value for nitrogen dioxide over a calendar year is 40 µg/m 3.
In England the Air Quality Directive was transposed into domestic law by the Air Quality Standards Regulations 2010 (“the 2010 regulations”). Regulation 26, “Air quality plans”, which requires the drawing-up of air quality plans in England, provides that “[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” (regulation 26(1)); and that “[the] air quality plan must include measures intended to ensure compliance with any relevant limit value within the shortest possible time” (regulation 26(2)).
The ClientEarth proceedings
In a series of proceedings, and with conspicuous success, ClientEarth has sought the intervention of the court in the process by which the Government has attempted to comply with the requirements of articles 13 and 23 of the Air Quality Directive (see R. (on the application of Shirley) v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 22, at paragraphs 29 to 32).
By the time the inspector made his decision on Gladman's appeals, ClientEarth's second claim for judicial review had been heard and decided by Garnham J. Judgment was handed down on 2 November 2016 – the second day of the inquiry into Gladman's appeals. This was followed on 21 November 2016 – the penultimate day of the inquiry – by a further judgment on relief. In his order, sealed on 22 November 2016, Garnham J. made a declaration that the United Kingdom's 2015 air quality plan did not comply with article 23(1) of the Air Quality Directive and regulation 26(2) of the 2010 regulations. He also made a mandatory order...
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