skjwThe recent Court of Appeal decision in Shirley has confirmed that although still a material consideration, the Air Quality Directive does not itself specify that planning decisions must be determined in a particular way or by a particular body. Suzanne Walford, Associate in the Planning team provides further insight.

The UK is required under the European legislation, namely the Ambient Air Quality Directive (2008/50/EC) (the "AQD") the provisions of which are transposed into national legislation by virtue of the Ambient Air Quality Standards Regulations 2010 (SI 2010/1001), to achieve "limit values" of air pollutants including Nitrogen Dioxide (NO2) and particulate matter by a specified deadline. In the UK this deadline expired in 2010. Where "limit values" are exceeded, Member States are required to ensure an Air Quality Plan ("AQP") is in place which sets out appropriate measures to ensure the period of exceedance is kept as short as possible.

The case of Gladman Developments Ltd v SSCLG & CPRE (Kent) was an example of where air quality contributed to the refusal of planning permission. The case concerned Gladman's application for residential development of 470 new homes plus 60 extra care units. The local authority refused the application and an Inspector upheld that refusal on appeal. Gladman challenged the Inspector's decision in the High Court.

The High Court challenge failed on a number of grounds including the fact that the proposal was found to have an adverse impact on air quality and the financial contributions offered as mitigation measures had not been shown to translate into actual measures likely to reduce private petrol and diesel vehicles and thus, reduce NO2 emissions. Consequently, although not the sole reason for refusal, air quality – or the adverse impact upon it – constituted part of the reason Gladman's application was refused.

The more recent case of R (on the application of Shirley) v SSHCLG is a Court of Appeal decision which upholds the earlier decision of Dove J. in the High Court. The case concerned a planning application for 4000 new homes on the outskirts of Canterbury. The local planning authority had resolved to grant planning permission but had yet to formally determine the application. A Judicial Review was brought challenging the Secretary of State's decision not to call-in the application.

There were concerns over the adverse impact of the proposed development on air quality in Air Quality Management Areas designated in the city centre. The Claimants argued that as a result, the Secretary of State had a duty as "competent authority" to call-in the application. However, the Court of Appeal held that where there is a breach of "limit values", the relevant sufficient remedy is the preparation and implementation of an AQP. The AQD does not itself specify that planning decisions must be determined in a particular way or by a particular body. It was therefore held that the Secretary of State had not acted irrationally in his decision not to call-in the application.

In conclusion, compliance with AQD "limit values" is a material consideration in planning decisions but the case law does not suggest that Member States are obliged to exercise planning powers and duties in a particular way such as imposing a moratorium on grants of planning permission for particular forms of development, or development of a particular scale, the effect of which is known to perpetuate or increase exceedances of "limit values", or by ensuring that decisions on such proposals are taken only at ministerial level. However, this is yet to be tested in the courts. Shirley was a challenge to a decision not to call-in as opposed to a grant of consent, and perhaps if a challenge to the latter was brought the outcome would be different given the difficulty the decision-maker would face in balancing non-compliance with the AQD in the decision making process.

For further details, please contact Suzanne Walford, Associate on +44 1392 685227 or suzanne.walford@footanstey.com.



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