Gladman Developments Ltd v Secretary of State for Communities and Local Government & Ors

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:

Landscape character (the third issue); and

Air quality (the eighth issue).

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:

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):

The Government published its new draft National Air Quality Plan on 5 May 2017, with public consultation running until 15 June 2017.

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 (“NO₂”). 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 court found that:

At DL93 he noted that the Council had declared two AQMAs, and that the latest available monitoring data from 2015 shows that one of the limit values for nitrogen dioxide was exceeded at monitoring sites for both AQMAs.

At DL94-95 he explained that the Claimant’s air quality assessments predicted, of the sixteen receptors sites that were assessed, “moderate adverse” impacts at one receptors site, and two other receptors sites received “slight adverse” impacts.

At DL96-97 he said that it seemed optimistic on the face of it to expect that NO₂ concentrations will fall by the substantial amounts predicted because they assumed substantial reductions in the background concentration of nitrogen dioxide.

At DL98 he said that in the light of this the Claimant had undertaken sensitivity tests based on emission factors that remain unchanged between 2015 and 2020. They showed there would be “substantial adverse” impacts at three receptor sites, and “moderate adverse” and “slight adverse” impacts of between three and five further receptor sites. That being so “in each case the limit value for annual mean NO₂ concentrations will be exceeded at five receptor sites, in some cases by a considerable amount”.

At DL99 he said that “the sensitivity scenarios are probably too pessimistic”.

He continued:

At DL106 the Inspector concludes on this issue that:

In his overall conclusions on Appeal A at DL116-134, the Inspector said at DL128:

The Claimant contends that in respect of the air quality issues, the Inspector erred as follows:

In respect of future changes in air quality and in respect of the mitigation—

a failure to apply the outcome of Client Earth(No.2) in his understanding of the effectiveness of air quality action plans;

a failure to give effect to the principle that the planning system presumes that other schemes of regulatory control are legally effective;

a failure to explain why application of the DEFRA damage cost analysis and associated contribution was not likely to be effective;

a failure to consider the imposition of a Grampian condition requiring a higher contribution to the mitigation fund, and;

a failure to give an opportunity to the Claimant to address the above, the Inquiry or prior to issuing the appeal decision.

The air quality action plan – a failure to explain how the proposal is in conflict with the action plan, read as a whole; and

The emerging Development Plan – a failure to consider a material consideration, namely the allocation of residential development within the AQMA.

The Claimant contends that the Inspector failed to apply the outcome of Client Earth (No.2) in his understanding of the effectiveness of air quality action plans.

Mr Richard Kimblin QC, for the Claimant, accepts that the Inspector accurately summarises the ratio of the judgment in Client Earth (No.2) that “the plan should have sought to achieve compliance by the earliest possible date rather than selecting 2020 as its target date” (DL92).

However, Mr Kimblin submits that the Inspector did not engage with the judgment, the true import of which is that the Government must change its plan, make progress and hit the target. The essence of what should have been addressed is that the Government has undertaken to put in place measures to ensure that the limit values are met within a short timeframe, and there were measures that could have been put in place. The Inspector should, Mr Kimblin submits, have proceeded on the basis that the Government would comply with the law, but he did not, rather he proceeded on the basis that the breaches of the Directive would continue.

I do not accept the submission that the Inspector proceeded as Mr Kimblin suggests. The Inspector’s reference to the added emphasis to the urgency of meeting the limit values for air pollutants given by the decision of the High Court (DL92) makes clear that he understood that the Government had to achieve compliance by the earliest possible date.

That in itself though does not meet Mr Kimblin’s point that what is required by the judgment is that in order to achieve compliance by the soonest date possible the Secretary of State must choose a route to that objective which reduces exposure as quickly as possible, and she must take steps which mean meeting the value limits is not just possible, but likely (para 95(i)). As to how compliance can be achieved Mr Kimblin refers, in particular, to para 65 of the judgment where the Judge noted that “[t]he evidence demonstrates clearly that Clean Air Zones, the measure identified in the plan as the primary means of reducing nitrogen dioxide emissions, could be introduced more quickly than 2020”.

However, as Mr Richard Moules, for the Secretary of State, and Mr Ashley Bowes, for CPRE, submit, the Inspector was not required to assume that local air quality would improve by any particular amount within any particular timeframe.

In the recent decision in R (Shirley) v Secretary of State for Communities and Local Government[2017] EWHC 2306 (Admin)Dove J said at para. 63:

The key question, Mr Moules submits, is what the decision in Client Earth (No.2) actually meant for the decision maker given that the latest available monitoring data from 2015 showed that the annual mean objective of 40ug/m³ for NO₂ was exceeded in Newington and Rainham AQMAs (DL93). The Claimant’s proposals would indirectly result in additional NO₂ through vehicle emissions. It was not known what measures the new draft National Air Quality Plan would contain, let alone what the final version would contain following public consultation. It follows that the Inspector did not know how any new national measures would relate to local measures; nor did he know what would be “the soonest date possible” that the new National Air Quality Plan would aim to achieve compliance by. In those circumstances I agree with Mr Moules that the Inspector could not reach any view as to whether the measures in the new National Air Quality Plan would be likely to be effective in securing compliance by any particular date.

I consider that the Inspector properly engaged with the Client Earth (No.2) decision. He understood what the judgment required, and carefully analysed the evidence that was presented before him (DL99-106). He formed a judgment as to what the air quality is likely to be in the future on the basis of that evidence. He was entitled to consider the evidence and not simply assume that the UK will soon become compliant with the Directive.

Mr Kimblin submits that the Inspector failed to give effect to the principle that the planning system presumes that other schemes of regulatory control are legally effective.

He contends that the regime of measures to meet the requirements of the Directive as soon as possible is partially in place and is being further developed.

In support of this submission Mr Kimblin relies on para 122 of the NPPF which states that:

Mr Kimblin acknowledges that paragraph 122 is concerned with pollution control regimes as now found in environmental permits. However he submits it is not confined to such regimes. The Inspector should, he submits, have directed himself to the principle which paragraph 122 contains and he should have read NPPF paragraphs 122-124 as a whole.

Mr Kimblin referred to the decision of the Court of Appeal in Gateshead MBC v Secretary of State for the Environment [1995] Env LR 37. That case concerned a decision in which the regimes of control under the Town and Country Planning Act and the Environmental Protection Act overlapped. The Court of Appeal approved the judgment of Mr Jeremy Sullivan QC, then sitting as a deputy judge, who held that emissions to atmosphere were material to a planning decision. Glidewell LJ said at page 44:

Mr Kimblin accepts that paragraph 122 is concerned with pollution control regimes, as now found in environmental permits. However he contends it is not confined to such regimes. He submits that the principle contained in paragraph 122 is even stronger in the present case than in cases on pollution control. This is so for a number of reasons, most significantly, Mr Kimblin suggests, because we are concerned with a regime in which the Government is legally bound to achieve a particular outcome, quickly. That is only achievable by the use of non-planning measures.

I reject this submission. Paragraph 122 is clear. I agree with Mr Moules that the principle referred to in paragraph 122 concerns situations where a polluting process is subject to regulatory control under another regulatory scheme in addition to the planning system. It is directed at a situation where there is a parallel system of control, such as HM’s Inspectorate of Pollution in Gateshead MBC, or the licensing or permitting regime for nuclear power stations in R (An Taisce) v Secretary of State for Energy and Climate Change [2013] EWHC 4161 (Admin). The point being that the planning system should not duplicate those other regulatory controls, but should instead generally assume that they will operate effectively. The Directive is not a parallel consenting regime to which paragraph 122 is directed. There is no separate licensing or permitting decision that will address the specific air quality impacts of the Claimant’s proposed development.

The Claimant contends that the Inspector failed to explain why application of the DEFRA damage cost analysis and associated contribution was not likely to be effective.

Mr Walton, in his first witness statement at paras 9-13, explains how he undertook calculations of the sum required to mitigate the effects of the proposed developments, using the standard DEFRA Cost Damage Calculation which was accepted by the two local planning authorities affected.

Mr Kimblin submits that the Inspector erred in discounting the result of the Cost Damage Calculation on the basis that he did not have specific evidence of effectiveness (DL104) because the principles which underlie the calculation have been determined by the relevant Secretary of State. CPRE contended that the mitigation was unclear, which Mr Kimblin observes of course was true. The Claimant does not contend that the mitigation is automatically presumed to be effective. The problem here, Mr Kimblin submits, is first, that the Inspector presumed that the appropriately calculated funding was not robust without specific evidence of effectiveness, and without dealing adequately or at all with the range of calculations in the Claimant’s September 2016 Air Quality Addendum Assessment. The Inspector seems to have required something definite. Second, he did not explain what was wrong with the mitigation. Given that the undertakings provided precisely what the Government’s own method required, much more explanation was required before it could be set aside. It was not the role of the Inspector to question the agreed methodology, and none of the parties had invited him to do so. In the alternative, Mr Kimblin contends the Inspector misunderstood the mitigation and its basis, which was not in dispute.

In considering this ground of challenge it is necessary to look at the evidence and how the parties presented their cases.

Paragraph 9.2.7 of the Claimant’s Addendum Assessment under the heading “Recommendations for Mitigation” states: “The impact of the proposed development is predicted to be significant for human receptors within the Newington and Rainham AQMAs. Therefore, mitigation measures will be required and an air pollution damage cost assessment has been carried out to determine the impact of the proposed development in both the SBC and MC administrative areas”. What follows is two sets of calculations using 2020 and then 2015 emission factors. At paragraph 9.2.4(1) it is said under the heading “Potential Mitigation Strategies”:

The Addendum Assessment continues:

It was on that basis the Claimant offered the undertakings that they did.

In his evidence-in-chief, Mr Walton, on behalf of the Claimant, said:

The Claimant’s contentions also disregard the evidence of Professor Peckham, called by CPRE, who gave evidence on air quality. He said:

In its closing statement CPRE said;

It is, in my view, plain from the evidence of Mr Walton and from the questions asked by the Inspector, and from the evidence of Professor Peckham and the closing submissions of CPRE that the likely effectiveness of the mitigation measures was a live issue at the inquiry. That being so, the Inspector was required to reach his own judgment on the matter. I agree with Mr Moules that the Inspector was entitled to consider “the effect of any mitigation measures that are proposed” (see Shirley at para 14; and also by analogy Secretary of State for Communities and Local Government v Wealden District Council [2017] EWCA Civ 39, per Lindblom LJ at para 30, where “the Inspector did not explain how he thought the financial contributions in the Section 106 obligation were in fact going to be translated into practical measures to prevent or overcome the possible effects of Nitrogen deposition to which he had referred…”).

I consider that at DL104-106 the Inspector reached a conclusion that on the evidence he was entitled to reach and that he explained what was wrong with the mitigation. The contributions had not been shown to translate into actual measures likely to reduce the use of private petrol and diesel vehicles and hence reduce the forecast NO₂ emissions (DL104).

The Claimant contends that the Inspector was obliged to consider whether the issue which concerned him in relation to mitigation could be overcome by the imposition of a Grampian condition (Ground 1(d)); and that he failed to give the Claimant an opportunity to address the matter at the Inquiry or prior to issuing the appeal decision (Ground 1(e)).

The Claimant never suggested it would agree to be bound by a Grampian or any such condition. Nevertheless Mr Kimblin submits that a condition which required the submission of a scheme of mitigation measures could have been drafted and imposed in a manner which precluded development until the planning authority accepted that the scheme would address the air quality impacts. That, he submits, would have been a reasonable condition (see British Railways Board v Secretary of State for the Environment [1993] 3 PLR 125, per Lord Keith at 128 & 132; NPPG on Grampian Conditions; and witness statement dated 22 February 2017 of Mr John McKenzie, the Claimant’s planning director, at para 5). It is irrelevant, Mr Kimblin submits, that such a condition was not canvassed by any party before the Inspector.

I reject these submissions. An Inspector does not have an obligation to cast about for conditions that are not suggested to him. It was not suggested by the Claimant that if the Inspector were unpersuaded by its evidence he should consider imposing a Grampian condition. I agree with Mr Moules that the Claimant having presented the Inspector with two unilateral undertakings, he was entitled to take them as the Claimant’s settled position in respect of mitigation. Further, in the light of the Inspector’s finding as to the lack of evidence as to the effectiveness of the proposed mitigation measures, I agree with Mr Bowes that the reasonableness of the condition that the Claimant now suggests it would have accepted is questionable.

In Top Deck Holdings v Secretary of State for the Environment [1991] JPL 961at 964-965 Mann LJ, when considering the question as to what the Inspector was to do in regard to a condition that was neither requested nor, more significantly, offered, referred to the decision of Forbes J in Marie Finlay v Secretary of State for the Environment and London Borough of Islington [1983] JPL 802. The issue before the court, was described by Forbes J as follows:

I do not accept Mr Kimblin’s submission that the decision in Top Deck Holdings is confined to its own facts, being concerned with offering a condition involving the demolition of buildings, which, he suggests, is certainly something which an applicant would need to offer. I consider that in Top Deck Holdings the Court of Appeal was stating a general principle. In National Anti-Vivisection Society v First Secretary of State [2004] EWHC 2074 (Admin)Collins J commented at para 32:

Mr Kimblin has further suggested support for the Claimant’s case can be drawn from the NPPG Costs Guidance: refusing planning permission or a planning ground capable of being dealt with by conditions risks an award of costs. However that guidance is directed to a planning authority determining planning applications and its conduct in determining such applications. Different considerations apply when considering the obligations of an Inspector seized of an appeal.

I also reject the contention that the Claimant did not know what case it had to meet.

In Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2014] PTSR 1145at para 62, Jackson LJ summarised the relevant principles of fairness. They are, so far as material:

It was Professor Peckham’s evidence that it was not clear how the financial mitigation proposal (in line with the agreed methodology) is to be used to reduce pollution levels (see para 48 above). He was saying that the contributions had not been shown to translate into actual measures likely to reduce NO₂ emissions. In his evidence Mr Walton accepted that it was difficult to quantify the effects of mitigation measures (see para 47 above). I consider it sufficiently clear that the effectiveness of mitigation measures was an issue as far as emission factors were concerned. The Claimant in its evidence, through Mr Walton, attempted to answer the points that were raised on this issue.

I am satisfied from the evidence to which I have referred that the Claimant knew the case which it had to meet and had an opportunity to adduce evidence and make submissions in relation to mitigation measures (which included suggesting a Grampian condition if he had wished to do so). I consider that the principle of fairness was satisfied in this case.

The Claimant contends that the Inspector erred in failing to explain how the proposal is in conflict with the air quality action plan, read as a whole. It is the Claimant’s case that its proposed mitigation measures were consistent with the local action plan, and that the Inspector ought to have explained where the inconsistency with the plan arose.

The Newington Air Quality Action Plan deals generally with a wide range of matters. On page 4 it states that:

Continuous Monitoring, Modelling, Further Assessments.

Continued liaison between Planning and Environmental Health colleagues regarding the LDF process and on application for planning permission, resulting in development which should not materially affect air quality in the AQMA.

Supporting reduction in traffic impact projects and campaigns e.g. tyre inflation, fuel efficiency, smart driving courses, etc.

Promotional work with industry to encourage consideration of alternative fuels and vehicles, routes/times for traffic.

Work with local rail, green taxi and bus companies, car share schemes.

Work with schools re School Travel Plan and other projects.

Investigate NOx absorbing materials.

Work with the Co-op and shops in the High Street regarding lorry deliveries and emissions and use of parking.

Community trees and plants project.”

Mr Kimblin submits that the Claimant does not know how or why the proposal is said to be inconsistent with the Action Plan, the Inspector having said nothing about consistency or otherwise with the Action Plan.

Mr Kimblin refers to the proposed forms of mitigation under the heading “Potential Mitigation Strategies” in the Claimant’s September 2016 Air Quality Addendum Assessment. At paragraph 9.2.40 it states:

Contributions to highway improvements in order to reduce local traffic congestion;

Provision of electric vehicle charging points on the proposed development site;

Contributions to low emission vehicle refuelling infrastructure;

Provision of enhanced public transport serving the site;

Provision of incentives for the uptake of low emission vehicles;

Financial support to low emission public transport options; and

Improvements to cycling and walking infrastructure.”

The Inspector properly directed himself as to NPPF paragraph 124. He referred to the Newington and Rainham Air Quality Action Plans. The Newington plan notes at section 7.1 on proposed Borough-wide Measures to improve air quality that:

The Inspector found that the proposed development would be likely to have an adverse effect on air quality, particularly in the AQMAs. That being so, I agree with Mr Moules that it is obvious why the Inspector concluded that the proposed development was inconsistent with the local air quality action plans that sought to ensure development did not harm air quality. The decision letter read as a whole makes it clear to the parties (Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin)at paragraph 19, per Lindblom J (as he then was)) that the inspector followed national policy, found there to be a breach of the air quality action plans, and accordingly concluded at that both proposals would conflict with the guidance in NPPF paragraph 124.

The Claimant contends that the Inspector failed to have regard to the fact that the emerging development plan contained an allocation for 115 dwellings in Newington within the AQMA.

Mr Kimblin submits that the Inspector failed to address that the planning authority has accepted the balance of considerations, including air quality impacts, which results in this allocation. He submits that if the Inspector did seek to grapple with this material consideration, and applied the same reasoning as he applied to the appeal proposals, he would have had to conclude that the allocation within the Newington AQMA was contrary to NPPF paragraph 124. He would have had to, and should have, addressed the fact that his finding was contrary to relevant policy/allocation in the emerging local plan.

I reject these submissions. First, it is clear that the Inspector did deal with the emerging plan (DL21-22) and he considered that little weight should be given to it. He noted that over 400 main modifications to the emerging local plan (“ELP”) had been published for consultation in response to the Inspector’s Interim Findings, and that some 2,220 representations had been made on the main modifications that will need to be considered by the Inspector (DL22). Further hearings were held before the Inspector completed her report and recommendations. In those circumstances the Inspector was entitled to conclude, as he did, that “substantial uncertainty remains about exactly which site allocations will appear in the adopted ELP and at what scale” (DL22).

Second, whilst emerging Policy AX6 proposes an allocation of 115 dwellings in Newington, it provides that the development must “Address air quality impacts arising in the Newington AQMA, including the implementation of innovative mitigation measures” (Main Modification 161, para 5). New development must thus be judged on its merits according to its air quality impacts. I consider that is what the Inspector did in relation to the Claimant’s proposal.

For the reasons I have given none of these grounds of claim succeed. Accordingly, this claim is dismissed.