The air up there

The length and cost of the Heathrow terminal 5 public inquiry is one of the often-cited reasons for the creation of the nationally significant infrastructure project regime under the Planning Act 2008. That regime has been successful in delivering decisions within approximately 17 months of submission, with very few exceptions.

The regime does not, however, dictate the length of the pre-application process. Applicants for the biggest projects are unlikely to prepare and submit applications without a reasonable prospect of success, and there are still some decisions which are so politically sensitive that an extended overall process seems to be inevitable in a democracy.In the case of increased runway capacity in the South East, while the government has announced its preference for a third runway at Heathrow, in the light of a clear recommendation by the Airports Commission – which itself took over two years, depending on how you measure the starting point – there is a still a long road to travel towards a consent, assuming one is ultimately granted.

The government announcement simply triggers the preparation of a draft national policy statement (NPS) under the 2008 Act, which we now know will support the new Heathrow runway in principle, but will inevitably be hedged in with wide-ranging and demanding criteria regarding the assessment and mitigation of impacts and other matters. Assuming the NPS is adopted by parliament and then survives an inevitable judicial review, on top of the current judicial review of the government’s announcement of support in principle, the development consent order (DCO) application will still then take until early 2020 to be submitted, according to the non-binding statement of principles signed by Heathrow and the Department for Transport.

It will almost certainly be the most complex and demanding DCO application ever made under the 2008 Act and will test that regime to its utmost extent. An application which is ‘in accordance’ with an extant NPS must be granted under section 104 of the Act, save where it would place the UK in breach of international obligations (such as the Air Quality and Habitats Directives) or if the adverse impacts would outweigh the benefits of the proposal. To date, three out of 61 decided DCO applications have been refused, despite a relevant NPS being in place providing support in principle.Air quality issues

The Ambient Air Quality Directive 2008 has recently been in focus, following a number of successful challenges brought against the UK government by ClientEarth. The directive sets legally binding limits on permissible levels of pollutants and a statutory duty to ensure that they are not exceeded once attained.

On 2 November 2016, the High Court quashed the UK’s proposed air quality plans, due to inadequate timing, overly optimistic modelling, and a lack of effective measures being proposed. The UK now has until 31 July 2017 to deliver a final plan. The contents of these plans will affect any development which may breach limit values. The air quality plans once adopted will therefore form an important constraint for developers to consider.

The annual mortality burden in the UK due to exposure to outdoor air pollution is reported to be equivalent to roughly 40,000 deaths, at a cost of £20bn.

Air quality is also increasingly taking a greater role in development management. In Bristol, for example, an application for a rapid response diesel-fuelled electricity plant was recently denied due to the significant number of residential properties within the vicinity of the proposed site and its effect on human health.

In Greenwich, although permission for the development of a ferry terminal had already been granted, a revised application affecting the size of the terminal building and replacing a hotel with residential buildings was unsuccessfully challenged by a local resident. This judicial review challenge argued that the decision to grant planning permission was unlawful, due to the failure to consider the total cumulative and combined effects of the development on air quality, including the effects of ship emissions. It was submitted that the provision of an onshore power supply would enable ship engines to be turned off when berthed and avoid producing nitrogen dioxide (NO2) emissions equivalent to 688 diesel lorries for each idling ship.

Although supported by EU legislation, the court agreed with the officer’s report that the huge investment needed for an onshore power supply could not be justified. Although the area had already been designated as an air quality management area (AQMA), a report commissioned by the Greater London Authority concluded that ship emissions would give rise to moderate adverse effects at worst.

Of particular note in the determination of this case was the submission by the Institute of Air Quality Management that it was incorrect to rely on guidance from the Department for Environment, Food and Rural Affairs (DEFRA), as it does not adequately deal with NO2 emissions. They provided detailed figures which demonstrated that the ships would give rise to an unacceptable increase of NO2 pollution. However, the court found that it was inappropriate for them to decide which evidence should be relied upon and confirmed that it was satisfied that the developer was entitled to rely on DEFRA guidance.

This decision contrasts with the approach taken at London Road, Hassocks, where the planning inspector was persuaded by evidence that DEFRA modelling did not accurately account for a slower decline in NO2 than was predicted by the modelling. On that basis, sufficient queries could be raised about the validity of the assumptions made under the DEFRA modelling, such that the inspector could not be fully confident of the conclusions drawn from it. Therefore, it could not be concluded with confidence that the proposed development would not have a negative effect on air quality within the AQMA.

The case law so far has considered air quality issues as part of the conventional planning process, as a determinative factor in the development plan or as a material consideration to be weighed by the decision maker. However, it is only a matter of time before we see further challenges from the application of the Air Quality Directive itself, which requires member states to ensure that dangerous emissions do not exceed limit values set throughout their zones and agglomerations. As this duty arises from legislation, it could function as an overriding consideration to the planning process as a determinative factor, wherever development threatens to exceed limit values.

As public awareness of air quality issues grows, any decision by the government to dilute its responsibilities under the directive post-Brexit is unlikely to be popular with health bodies and local communities. Operators seeking consent for schemes which utilise large vehicle fleets or developments which could potentially affect limit values may be forced to revise schemes or introduce expensive mitigating measures quickly in order to avoid the risk of challenge. Reasons cases

Two recent cases offer would-be challengers hope, and remind local authorities and other decision makers to remain vigilant when recording the reasoning behind planning decisions.

The first is a decision of the Court of Appeal in CBRE Kent v Dover District Council [2016] EWCA Civ 936, where planning permission was quashed on account of a failure to provide reasons. The case concerned an extensive mixed-use development of an unprecedented scale within an area of outstanding natural beauty (AONB). An environmental impact assessment (EIA) was carried out, and the planning decision to grant permission was at odds with the council’s officer’s report, which had recommended refusal.

In the leading judgment, Lord Justice Laws rehearsed the ‘mainstream’ guidance on the requirement to provide reasons from South Bucks v Porter (No 2) [2004] 1 WLR 1953, emphasising Lord Brown’s observation that ‘the degree of particularity depend[s] entirely on the nature of the issues falling for decision’. Applying that mantra to the present facts, including the AONB, EIA, and decision against officer advice, led to a finding that sufficient reasons had not been provided here and the decision was accordingly quashed.

Another case, in another sphere, with different concerns, was considered by the High Court in NHS Property Services Ltd v Surrey CC [2016] EWHC 1715 (Admin). In that case, an application to register land as a town and village green (TVG) was quashed (partly) on account of a failure to provide reasons for that decision. A TVG is a special statutory designation which prevents development being carried out over land. It therefore interferes dramatically with a landowner’s ability to use its property. The court was satisfied that the requirement to provide reasons arose under both the European Convention on Human Rights and the relevant TVG regulations, and the decision to register was quashed in the absence of such reasons.

Julian Boswall, pictured, is a partner and Alex Minhinick a senior associate at Burges Salmon

@BurgesSalmon www.burges-salmon.com