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

A planning decision-maker assessing a development’s effect on local air quality must determine the evidence before them. They need not predict the content, timing or local effect of future national measures taken under the Air Quality Directive.

Paragraph 122 of the National Planning Policy Framework concerns parallel pollution-control consenting regimes. It does not require an assumption that the Government will achieve air-quality compliance by a particular date. Mitigation calculated by an accepted method may still be rejected if there is no clear evidence that the practical measures will effectively reduce emissions. An inspector is not generally obliged to devise an unproposed condition to make a scheme acceptable, provided the parties had a fair opportunity to address the issue.

Gladman sought outline planning permission for two alternative housing schemes on farmland at Newington. Both schemes would affect the Newington and Rainham Air Quality Management Areas.

An inspector, determining appeals following the council’s non-determination, found that each scheme would probably worsen nitrogen-dioxide pollution and that the proposed financial contributions and mitigation had not been shown to be effective. He dismissed both appeals.

Supperstone J dismissed Gladman’s statutory challenge under section 288 of the Town and Country Planning Act 1990, [2017] EWHC 2768 (Admin). Gladman appealed, contending that the inspector had misunderstood the consequences of the ClientEarth litigation, misapplied national planning policy, mishandled mitigation and procedural fairness, and given inadequate reasons. The central issue was whether the inspector lawfully assessed the likely local air-quality effects of the proposed development.

1. Appeal dismissed unanimously. The inspector lawfully concluded, on the evidence available, that each proposal would probably have at least a moderately adverse effect on air quality in the two Air Quality Management Areas and on human health.

2. The inspector understood the significance of ClientEarth (No.2). Its consequence was that the Government had to act urgently to achieve compliance with pollutant limit values. It did not require the inspector to make predictive findings about unknown national measures, their timing, or their likely local effectiveness. He was entitled to assess the local air-quality baseline from the evidence before him and to decline to speculate about future improvements.

3. Paragraph 122 of the National Planning Policy Framework was inapplicable. It prevents duplication of a parallel licensing or permitting regime controlling a polluting process or emission. The air-quality regime was programmatic: it imposed obligations on the state and required air-quality plans. It did not require the planning decision-maker to assume timely national compliance. Paragraph 124 instead required the planning decision to ensure consistency with the relevant local air-quality action plan.

4. The inspector did not reject Gladman’s method for calculating financial contributions. He permissibly found that there was no specific evidence showing that the proposed practical measures would reduce private-vehicle use and nitrogen-dioxide emissions. Their likely effectiveness was a matter of planning judgment.

5. There is no general legal duty on an inspector to formulate an unproposed “Grampian” condition to rescue an unacceptable proposal. The parties knew that the effectiveness of mitigation was a central issue and had a reasonable opportunity to provide evidence, make submissions, and propose a condition. Procedural fairness did not require the inspector to disclose provisional views or invite further submissions on every concern arising from the evidence.

6. The reasons were adequate when the decision letter was read fairly as a whole. Having found that unproven mitigation meant material harm to air quality, the inspector was not required separately to elaborate why the schemes conflicted with the local action plans and paragraph 124.

• Court of Appeal (Civil Division): dismissed Gladman’s appeal and upheld the judgment of Supperstone J.
• Administrative Court, Planning Court: Supperstone J dismissed Gladman’s challenge under section 288 of the Town and Country Planning Act 1990, [2017] EWHC 2768 (Admin) .
• Planning inspector: on 9 January 2017, dismissed two appeals under section 78 of the Town and Country Planning Act 1990 against the council’s failure to determine the outline applications.