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Gladman Developments Limited – forget cash, evidence is king!

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23/10/2019

The Court of Appeal upheld a planning inspector’s refusal to grant planning permission for a residential development primarily due to a lack of evidence to prove the effectiveness of the proposed air quality measures in Gladman Developments Ltd. v (1) Secretary of State for Communities and Local Government, (2) Swale Borough Council, (3) CPRE Kent [2019] EWCA Civ 1543.

The appeal related to two refused outline planning applications for a development of up to 330 dwellings and 60 units of ‘Extra Care accommodation’ and a development of up to 126 dwellings and 60 units of ‘Extra Care accommodation’ on farmland south of London Road, Newington, Kent, which is situated within an Air Quality Management Area (an ‘AQMA’). An AQMA is an area in which the Government’s target levels for certain emissions are at risk of not being met, thus increasing the onus on developers to prove the effectiveness of their air quality measures.

This is particularly important in light of the ruling in R. (on the application of ClientEarth) (No.2) v Secretary of State for Environment, Food and Rural Affairs [2016] EWHC 2740 (Admin) that the Government must ensure that the UK meets its EU air quality targets in the shortest possible time. As such, every development that threatens to delay the meeting of those targets is likely to come under increasing scrutiny.

To combat the development’s adverse impact on air quality, the Appellant entered into two section 106 planning obligations to provide a financial contribution towards practical measures including ‘electric vehicle charging points for each dwelling, green travel measures and incentives to encourage the use of walking, cycling, public transport and electric or low emission vehicles’ [1].  The planning inspector was of the opinion that, ‘there is no clear evidence to demonstrate … likely effectiveness [of the measures], and it may well be that the contributions to fund the measures fail to reflect the full scale of the impacts’ [2].  As such, he rejected the appeal citing the likelihood of an adverse effect on air quality.

Supperstone J in the High Court did not find the inspector to have erred in his judgment. The Appellant then made an appeal to the Court of Appeal. For present purposes, there were two key grounds of appeal:

  1. that the inspector failed to properly consider the proposed air quality measures
  2. that the inspector’s objections to the proposals could and should have been dealt with by a condition attached to the planning permission.

Ground 1: the proposed mitigation measures

The Appellant offered to financially contribute towards any air quality measures. To this end, it used DEFRA’s ‘cost damage’ calculation to calculate the size of its contribution. The Appellant contended that because the financial contribution was based on methodology favoured by the Government, the inspector should have accepted it.

Lindblom LJ in the Court of Appeal – with whom the other judges agreed – drew a distinction between calculating the amount of any financial contribution and the effectiveness of the mitigation measures themselves. The latter is ‘a classic matter of planning judgment’ [3],  and in the absence of substantive or procedural error, mere ‘[d]isagreement with [the inspector’s] conclusion is not a proper basis for complaint in proceedings such as these’ [4].  In other words, it was irrelevant that an approved calculation was used to ascertain the amount of the air quality contribution because the real issue was whether that money was going to fund measures that would be effective. Without sufficient evidence to persuade the inspector otherwise, he was well within his power to reject the appeal on air quality concerns.

Ground 2: Grampian conditions

The Appellant alternatively argued that the inspector should have addressed his air quality concerns by way of a ‘Grampian’ condition, requiring the Appellant to provide a contribution to air quality measures in addition to those under its planning obligations before development could be commenced. This alternative approach was note raised during the appeal as a solution to pollution by any of the parties. Lindblom LJ confirmed that there is neither a statutory obligation nor a requirement in the NPPF that ‘requires an inspector always to undertake his own quest for conditions that might render an unacceptable proposal acceptable’ [5]. The only time an inspector ought to consider a condition which none of the parties has suggested is where both the need for a condition and how it should be imposed are obvious. In the circumstances of this case, the Appellant had not suggested that it would be willing to make further contributions should the inspector have found the offered measures inadequate, and as such there could be no duty on the inspector to consider that possibility in the form of a Grampian condition.

As Mann LJ pithily put it in Top Deck Holdings v Secretary of State for the Environment [1991] J.P.L. 961: ‘An Inspector should not have imposed upon him an obligation to cast about for conditions not suggested before him’ [6].

Practical considerations

A financial contribution towards air quality is not enough in itself, even if the contribution is consistent with DEFRA’s cost damage model. A developer must supplement the offer with sufficient evidence to show that the measures being funded are likely to be effective in avoiding the development’s adverse effect on air quality.

Given the Government’s commitment to tackling air quality and meeting the broader goal of zero carbon by 2050, these issues are likely to arise more frequently. Developers and their consultants should focus on ‘real world’ deliverable solutions if they want appeals to succeed.

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[1] Referred to in paragraph 104, Planning Inspector’s decision dated 9 January 2017
[2] Paragraphs 105, Ibid.
[3] Paragraph 53, [2019] EWCA Civ 1543
[4] Ibid.
[5] Paragraph 64, Ibid.
[6] Page 965, [1991] L.P.L. 961

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