Gladman Developments Ltd v Secretary of State for Communities and Local Government & Ors

In a planning challenge involving air quality, an inspector is not required to assume that national or local measures will secure compliance with statutory air-quality limits by a particular date. The inspector must assess the likely future position on the evidence available.

The planning policy principle that other regulatory regimes will operate effectively applies to parallel pollution-control consenting regimes. It does not require planning decision-makers to presume that an air-quality directive or plan will achieve compliance, where no separate licensing or permitting decision controls the development’s specific impacts.

Mitigation based on financial contributions must be shown to translate into measures likely to reduce the relevant emissions. An inspector need not devise or investigate an un suggested condition, including a Grampian condition. Fairness is satisfied where the parties knew that mitigation effectiveness was in issue and had an opportunity to address it.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s conjoined decision dismissing appeals against refusals of planning permission for two residential developments in Kent.

The inspector found that the developments were likely to cause at least moderately adverse effects on nitrogen dioxide levels in the Newington and Rainham Air Quality Management Areas, with significant effects on human health. The claimant argued that the inspector had misunderstood the effect of the national air-quality regime, failed to presume that regulatory controls would operate effectively, inadequately assessed proposed financial mitigation, failed to consider a Grampian condition, acted unfairly, misunderstood the local action plans, and failed to consider an emerging development-plan allocation.

1. The claim was dismissed. The inspector had properly engaged with Client Earth (No.2) v Secretary of State for the Environment, Food & Rural Affairs [2016] EWHC 2740 (Admin). That decision required compliance to be achieved by the earliest possible date and required measures making compliance likely, but it did not require the inspector to assume that local air quality would improve by a particular amount within a particular period. The inspector was entitled to assess the evidence and decline to assume that the United Kingdom would soon comply with the Directive.
2. The principle in paragraph 122 of the National Planning Policy Framework concerns a parallel pollution-control regime, such as an environmental permitting or licensing system. The Directive was not such a parallel consenting regime. No separate licensing or permitting decision would address the specific air-quality effects of the proposed developments. The inspector therefore did not err in refusing to presume that the Directive regime would operate effectively.
3. The effectiveness of mitigation was a live issue at the inquiry. The proposed contributions were calculated using 2020 emission factors, although the inspector had found it unsafe to rely on the assumed reductions in emissions. The evidence did not show how the contributions would be translated into measures likely to reduce private petrol and diesel vehicle use and nitrogen dioxide emissions. The inspector was entitled to reach that conclusion. The approach was consistent with R (Shirley) v Secretary of State for Communities and Local Government [2017] EWHC 2306 (Admin) and, by analogy, Secretary of State for Communities and Local Government v Wealden District Council [2017] EWCA Civ 39.
4. An inspector is not obliged to cast about for conditions that have not been suggested. The general principle in Top Deck Holdings v Secretary of State for the Environment [1991] JPL 961 applied. The claimant had presented unilateral undertakings as its settled mitigation position and had not proposed a Grampian condition. It knew that mitigation effectiveness was in issue and had an opportunity to adduce evidence and make submissions. There was no procedural unfairness.
5. The decision letter, read as a whole, explained why the proposals conflicted with the local air-quality action plans and paragraph 124 of the National Planning Policy Framework. The inspector was also entitled to give little weight to the emerging development plan because substantial uncertainty remained about its site allocations and scale. In any event, the emerging allocation itself required air-quality impacts to be addressed and did not determine the merits of the claimant’s proposals.

The judgment was a first-instance claim under section 288 of the Town and Country Planning Act 1990 challenging an inspector’s decision. Permission to bring the claim had been granted on all grounds. The claim was dismissed.