PROPERTY JOURNAL

When air quality affects planning decisions

A landmark appeal judgment may have significant consequences for future developments

Author: Lisa Foster

25 March 2020

In September 2017, the Court of Appeal in Gladman Developments Ltd v Secretary of State for Communities and Local Government [2019] EWCA Civ 1543 upheld the decision of Swale Borough Council and the Planning Inspectorate to refuse permission for a housing development of 330 dwellings on greenfield land in Newington, Kent, England on the basis of its probable adverse impacts on air quality. The Hon. Mr Justice Supperstone dismissed Gladman's statutory claim on all grounds.

The decisions made by the council, the inspectorate and then two courts were informed by the expert evidence from Prof. Stephen Peckham of the Centre for Health Services Studies at the University of Kent. His evidence showed that air pollution resulting from housing growth can be a legitimate material planning consideration and warrant refusal.

Gladman sought to alleviate the development's impact on air quality with financial contributions, but Peckham argued there was no indication of how that contribution would be spent; neither was any evidence provided that those measures would limit the use of petrol or diesel vehicles and so reduce pollution.

In June last year, the borough council wrote to the prime minister, adopting a climate emergency declaration. The Department for Business, Energy and Industrial Strategy responded on 29 October, noting that 'in determining both applications and any subsequent appeals, the passing of a climate emergency motion would be a material consideration'.

The following month, Peckham gave evidence at a council inquiry regarding the neighbouring village of Borden, involving 47.5ha of greenfield land and a proposed suburban development of 675 dwellings following Quinn Estate's appeal for non-determination. The council initially resolved to approve the development but, after wrangling over the section 106 agreement and local elections in May 2019 that led to a change in council members, its planning committee adopted putative reasons for refusal including air quality, climate change and inadequate assessment of highway impacts.

Borden Parish Council, which registered as an interested party under part 6 of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, had commissioned advice from Peckham when the matter was before the borough council, and submitted his critical commentary on the developer's air quality assessment.

The appeal scheme promoted a new spine road through the housing estate to relieve traffic and air quality elsewhere in the borough, with an estimated 1.4m vehicles per year likely to use it. Peckham identified adverse health impacts from traffic on road users and local residents, which would exacerbate poor air quality in existing air quality management areas.

Peckham also linked the increased traffic emissions arising from the vehicle movements to problems with meeting national air quality targets in the borough's south-east area action plan, which arose from the Department for Environment, Food & Rural Affairs' 2015 air quality plan following Client Earth litigation. The message is simple: car-dependent development would put the borough council at risk of meeting its air quality targets and create unacceptable risks for the wider population.

My clients Borden Residents Against Development (BRAD), another rule 6 party, hired urban designer John Burrell of Burrell Foley Fischer architects as their witness to the inquiry. He criticised the developer's masterplan for continuing to promote car-dependent schemes and identified numerous missed design opportunities to have fewer roads and car movements. He maintained that modern urban design principles can be applied to design large housing estates in ways that do not promote reliance on cars for commuting, in a direct challenge to the sustainability of the appeal scheme.

Many local communities, including the 1,200 Borden residents for whom I acted, welcomed the Court of Appeal judgment. They now have case law to enable their councillors to refuse housing growth that increases health risks to their families from air pollution and car emissions.

In their final submissions, BRAD argued that the appeal scheme failed to tackle the housing crisis in the community by building the wrong mixture of housing – low-density suburban sprawl – in an overly simplistic and outdated mode of urban design where the car was dominant. The group successfully argued that Gladman failed to promote sustainable transport modes and would thereby exacerbate the climate emergency, outweighing any housing benefits from the development.

lfoster@richardbuxton.co.uk

Related competencies include: Planning and development management, Sustainability

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