High Court ups the air quality ante
The High Court recently confirmed a Planning Inspector’s decision to refuse an appeal on air quality grounds (Case CO/873/2017). Planning permission had been refused on the basis that the development would cause significant adverse impacts on two Air Quality Management Areas (AQMAs). Several points of interest arise from the judgement, which has implications for planning applications in areas of poor air quality.
The first is that one cannot rely on the Government’s National Plan to reduce roadside NO2 concentrations in a local area. The National Plan was in draft form at the time of the inquiry and therefore there was uncertainty as to what it would propose and what it would achieve. Unfortunately, the situation hasn’t really changed with the publication of the actual National Plan (which is subject to a further legal challenge by Client Earth). With the emphasis placed on Local Authorities to come up with local plans by March 2018, we are still none the wiser as to what actually will be done and what will be achieved.
The second is that if a development makes air quality worse in an AQMA, then without appropriate mitigation this would likely be contrary to the local Air Quality Action Plan and therefore contrary to the NPPF, which is a defendable reason for refusal of planning permission.
In particular, where mitigation is proposed to make an impact acceptable, one needs to be specific about what will be achieved and evidence provided as to how pollutant concentrations will reduce. It is not acceptable to simply agree a financial contribution in terms of a calculated damage cost, as there is no certainty as to what the money will be used for or how effective it would be in reducing pollutant concentrations. Additionally, if it is claimed that vehicle emissions will reduce in the future and therefore impacts will reduce, then evidence needs to be provided as to why this will be the case.
Historically, air quality has rarely been the sole reason for refusal of planning permission, but the judgement comes at a time of increased public awareness and interest in air quality and this could be changing. Whilst still part of the planning balance, air quality is likely to become a more important element, especially in situations where there is public opposition to a scheme. Whilst more attention will need to be paid to the air quality assessment process, developers are likely to come under increasing pressure to provide mitigation, the benefits of which will need to be quantified.