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Joanna Bryan

Chartered Legal Executive - Uckfield

Air Pollution Considerations in Planning and Development

Recent drops in vehicle, plane and industry emissions due to the COVID-19 pandemic have seen noticeably bluer skies and cleaner air across the country. As lockdown ends and the economy reopens we could see air pollution return with a vengeance. So what should developers consider when it comes to air pollution in planning and development?

With air quality very much on the political agenda there are various changes afoot, whilst not a legal requirement, some property portals have announced that they will display air quality ratings for the first time ever on properties advertised for sale or rent. The new Environment Bill, which has had its legislative passage stalled due to COVID-19 will include provisions that require the Secretary of State to set legally binding air targets and would amend the duty to report on air quality under the Environment Act 1995. It would also give local government new powers to help enforce targets.

How does the English planning system address air pollution due to development?

Air quality is a material planning consideration. An appropriate assessment of air quality must therefore be included with any application that may adversely affect local air quality or be significantly affected by existing levels. It is vital that the applicant considers the need for any assessment before any application is submitted. Failure to include appropriate information on air quality could result in an invalid application or in the application being refused or delayed.

Developers should look at the key policy documents that underpin decision making at the local planning authority. At a local level these will include the Local Plan, Local Development Framework and existing air quality data such as proximity of Air Quality Management Areas (AQMA) to the development site. At a national level they should look at the National Planning Policy Framework (NPPF) and National Air Quality Strategy. They should also check whether they are required to submit an Environmental Impact Assessment under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. They might also be asked to produce a new Health Impact Assessment.

Importantly, the NPPF (last updated in July 2019) has two key provisions which talk directly to air pollution.  Firstly, at paragraph 103 where it specifically states “significant development should be focused on locations which are or can be made sustainable, through limiting the need to travel and offering a genuine choice of transport modes.  This can help to reduce congestion emissions and improve air quality and public health.”  And then again at paragraph 181 where it states that “planning policies and decisions should sustain and contribute towards compliance with relevant limits values or national objectives for pollutants, taking into account the presence of Air Quality Management Areas and Clean Air Zones, and accumulative impacts from individual sites in local areas.  Opportunities to improve air quality or mitigate impact should be identified, such as through traffic and travel management, and green infrastructure provision and enhancement.”

Developers should be aware of decisions made in key cases which have set precedents in the area of development and air quality.  Firstly in the case of Gladman Developments Limited v the Secretary of State for Communities and local Government and CPRE (Kent) 2019.  The two questions it considered were should the Government’s proposed measures to decrease air pollution be considered by a planning authority or Inspector when assessing the air-quality impact from a development and secondly if a developer proposes its own reduction or mitigation measures what evidence is required to show that these measures will be effective in reducing air pollution.

The case surrounded an application by Gladman to Swale Borough Council for two outline planning permissions for residential development.  A planning Inspector dismissed both planning appeals because of adverse effects on the landscape character and air quality.  In relation to air quality the Inspector concluded that vehicle emissions from the development would give rise to significant adverse impacts on human health in an area designated by the council as having unacceptable levels of air pollution.  The Inspector considered Gladman’s air quality analysis too optimistic as Gladman incorrectly assumed the Government’s air quality plans would dramatically reduce air pollution.  The court agreed with the Inspector as without satisfactory evidence he did not have to make a predictive judgment that local air quality improved a particular amount within a particular time frame and the Inspector considered that a financial contribution from Gladman to the council would not reduce air pollution to acceptable levels although the financial contribution had been calculated in accordance with the government ‘costs damage calculation’.  Gladman did not demonstrate how that payment will translate into reduced air pollution.

Another significant case is that of Wealden Council v Secretary of State and Knight Developments.  This is a case whereby the developer for a residential development was unable to define a scheme of mitigation for nitrogen deposition to protect the sensitive ecological habitat of the Ashdown Forest which is defined as a European Protected Habitat and a Special Area of Conservation (SAC).  In this case the council applied to quash a decision of the appointed Inspector who allowed Knight Developments’ appeal against the refusal of planning permission for housing and associated development at Steel Cross north of Crowborough.  The matter fell down on the lack of certainty over the measures to mitigate nitrogen deposition on the Ashdown Forest SAC and the fact that the Inspector failed to adequately assess the alternative sites which were available within Crowborough or the wider district.

So what can we learn from these cases and what should developers consider if they think that their development may impact air quality? 

Developers should be aware of air quality measures within the NPPF and look at the Local and Development plans of the local authority where they are making an application. They should consult with the local planning authority air quality officer on their methods for technical assessment to make sure that they are fully complying with the same assessment techniques.  Developers seeking to reduce predictive air pollution from the proposed development to an acceptable level should base their assumptions and propose mitigation on robust supporting evidence. Predictions on air quality levels without the development must be realistic and without sufficient evidence cannot assume the Government will meet their target deadlines. Consider potential mitigation measures that you may be able to offer to the Local Authority or may be able to be made to reduce the impact of the development on air quality. Ensure that you provide robust evidence to demonstrate how proposed measures will be effective.  Perhaps you could even consider offering measuring other emissions post-development.

Developers should also be aware that mitigation could be sought by the Local Authority through planning conditions assuming they are appropriate and meet the six tests required in paragraph 55 of the NPPF.  Alternatively a planning agreement under section 106 of the Town & Country Planning act could be entered into, assuming that the planning agreement is a fair and reasonable way to deal with air quality.

Air Quality legislation is set to develop further still once the Environment Bill makes it onto the statute book and the new Clean Air Zones are rolled out. We will provide further updates here as the law progresses.

Contact us 

If you have any questions regarding a planning law or environmental matter please contact either Jo Bryan joannabryan@rixandkay.co.uk or Oliver Bussell oliverbussell@rixandkay.co.uk in Rix & Kay’s Commercial Property and Planning Team

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