R and Others v Secretary of State for Communities and Local Government Canterbury City Council (1st Interested Party) Corinthian Mountfield Ltd (2nd Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 15 September 2017 |
| Neutral Citation | [2017] EWHC 2306 (Admin) |
| Docket Number | Case No: CO/690/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 September 2017 |
[2017] EWHC 2306 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (PLANNING COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dove
Case No: CO/690/2017
— and —
— and —
Mr Robert McCracken QC and Mr Charles Streeten for the Claimants
Mr James Maurici QC & Ryan Kholi (instructed by Government Legal Department) for the Defendant
Mr John Hobson QC for the 1 st Interested Party
Mr Reuben Taylor QC for the 2 nd Interested Party (instructed by Clyde & Co LLP)
Hearing dates: 25 th & 26 th July 2017
Judgment Approved
On 4 th March 2016 the 2 nd Interested Party applied for planning permission for an urban extension to the south east of Canterbury, comprising some 4,000 dwellings together with a variety of other forms of complementary development. Land was reserved within the application for the potential relocation of the Kent and Canterbury Hospital and the examination of the development proceeded on two alternative bases, both with and without the hospital. The 2 nd Interested Party's application was supported by an Environmental Statement. Part of the Environmental Statement was an Air Quality Assessment which assessed the impact of the development upon air quality, both in the vicinity of the site and also in the city centre. The reason for examining the air quality in the city centre was that the 1 st Interested Party had designated an Air Quality Management Area ("AQMA") within the city centre in 2006 as a result of the high concentrations of nitrogen dioxide ("NO2") found within the area. The designation was expanded in 2011 so as to incorporate the city centre ring road.
The 2 nd Interested Party's Air Quality Assessment focused in particular on the pollutants NO2, PM10 and PM2.5. In relation to NO2 the study examined whether or not the effect of the development both in its immediate environs and within the city centre would lead to exceedances of the annual mean threshold of 40μg/m 3. In essence the report concluded that in either of the development options (with or without the relocation of the hospital) the threshold value for NO2 would not be exceeded.
Professor Stephen Peckham provided a critique of the 2 nd Interested Party's Air Quality Assessment on 25 th March 2016. The modelling work which had been undertaken by the 2 nd Interested Party in their Air Quality Assessment, in common with other assessments of this kind, conducted its estimations on the basis of the traffic modelling work commissioned to examine the transport effects of the proposal. Professor Peckham observed a number of detailed criticisms of that traffic modelling; he suggested that the flaws in the traffic modelling affected the outputs in the modelling reported. His conclusions were, in broad terms, that the flaws in the modelling had led to underestimates of the levels of pollutants that would arise in the future with the development. He also expressed concern in relation to the base data on which the modelling had been undertaken stating that it substantially underestimated local conditions. He contended that existing air quality, in particular in the AQMA, was poor. In particular his critique observed the following:
"3.2 The assessment undertaken for the South East non-agglomeration zone indicates that the annual limit value for NO2 is likely to be exceeded in 2010 and 2015 but achieved by 2020 through introduction of measures included in the baseline modelling, a low emission zone (LEZ) scenario (if applied) and the non-quantifiable local measures outlined in the plan. There are no proposals indicated being taken by Canterbury City Council and the current air quality action plan for the city is out of date and is being revised. The assessments for the proposed Mountfield development [the 2 nd interested party's development] draw on assumptions within the CDLP [Canterbury District Local Plan]. Due to the limited availability of air quality data in Canterbury the assessment uses receptor modelling, rather than actual pollution levels, adjusted to bring them into line with current levels identified by diffusion tubes and the four automatic monitoring stations in operation at that time (three roadside and one background). Modelling is based on the traffic volume assessments in Corinthian's Transport Assessment which critically underestimates traffic growth.
3.3 The new Canterbury City Council Air Quality Management Plan will need to comply with the overall South East Air Quality Action plan to reduce levels of NO2 pollution so that no roads exceed EU limits by 2020. Currently nine of the air quality monitoring points in Canterbury record levels exceeding the annual average level limit of 40μ/mg.
3.4 The air quality report submitted with the planning application has significant faults. While it is true than when viewed over a long-term period the levels of NO2 in Canterbury have been falling this ignores a generalised increase in NO2 since 2013. In the last 12 month period eight of the 26 diffusion tubes in Canterbury City have recorded an average annual level of NO2 of over 40μ/mg – above the maximum levels. Key areas of concern are the inner ring road and Wincheap."
The 1 st Interested Party were also concerned to obtain their own advice in relation to the Air Quality Assessment. They commissioned their own independent consultants to conduct a peer review of the Air Quality Assessment. As a consequence of the observations of the peer review a further report was prepared on behalf of the 2 nd Interested Party in the form of an Air Quality Assessment Addendum ("the Addendum Report"), produced on 12 th August 2016. Following the adjustments required by the peer review, the Addendum Report still showed that the modelled results did not predict any exceedance of the 40μg/m 3 threshold. Sensitivity testing was undertaken which did show adverse impacts, in particular within the AQMA. Some of those adverse impacts were characterised as "moderate adverse" and "substantial adverse". The Addendum Report contended, however, that the sensitivity analysis was not realistic and that the effects identified were "extremely unlikely to be actually ever realised".
Professor Peckham responded to the Addendum Report in a further submission dated 23 rd September 2016. He again reiterated his concerns both as to the air quality data which had been used, and also in respect of the traffic modelling which underpinned the modelling of air quality. Following the decision of Garnham J in ClientEarth (No. 2) v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 2740, Professor Peckham provided further observations in respect of the air quality issues. His submissions included the following:
"3. Air quality in Canterbury remains a significant concern with current breaches of NO2 limits (annual mean of 40μg/m3) in the AQMA. In addition, there have been 17 breaches (subject to data ratification) of 8-hourly mean levels of ozone (100μg/m 3– 10 allowed per annum) to date in 2016 recorded at the Canterbury background air quality measuring site at Chaucer School. This follows 11 recorded breaches in 2015. Nationally, Canterbury was one of 10 local councils reported by DEFRA as having Measured Exceedances of the Ozone Information Threshold Value in 2015 of the 1-hour maximum threshold when a level of 185μg/m 3 was recorded."
…
8. Modelling by the developer is based on laboratory emission data as set out in DEFRA guidance from 2009 and is based on the Emissions Factor Toolkit EFT v.6.0.1 which was released in 2014. The judge was clear in his ruling that this underestimates the actual level of emissions. He relied strongly on evidence by Dr Claire Holman from the Institute of Air Quality Management who explained how EU regulations have set " …progressively more stringent emission limits for NOx" … but that the " … imposition of Euro standards have failed to deliver reductions in NOx emissions from diesel vehicles in real-world driving conditions in the last 20 years". While Euro 6 standard for cars " …became mandatory for new models from September 2014 and for all new vehicles for September 2015". Dr Holman argued that " …the emission limit is currently based purely on laboratory testing. Various real-world tests carried out on Euro 6 cars have shown that they exceed the emission limit by a very large margin" …
9. Justice Garnham notes that " it is apparent that DEFRA recognised that they [the government] were adopting an optimistic forecast as a foundation of their modelling" (Para 83).
10. In his ruling Justice Garnham dismissed the Government's argument that the COPERT model was "widely used", was insufficient defence given that it has been recognised for some time that the data on Euro 6 vehicle emissions was incorrect (see for example see House of Commons Environmental Audit Committee 2014). It is also pertinent that additional guidance was published by the Highways Agency in 2015 (IAN 185/15) which relates to trunk roads which includes the Canterbury ring road as the A28 is a designated trunk road. In addition, in September and October 2016 Emisia SA released new emissions guidance for Euro 6 and Euro 5 vehicles.
11. The COPERT 5 v1.0 and COPERT 4 v11.4 calculation of emissions guidance contain a new set of Euro 6 NOx emission factors (EFs) for passenger cars and light commercial vehicles (LCVs) and updated NOx emission factors for Euro 5 LCVs. These are based on latest emission information collected by the European Research on Mobile Emission Sources (ERMES) parties and by individual European Member States. This...
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