Air Quality

October 2nd, 2019 by James Goudie KC

Gladman Developments Ltd v SoS for CLG and Swale Borough Council (2019) EWCA Civ 1543 is concerned with the likely effects of a proposed housing development on air quality, the Air Quality Directive, 2008/50/EC, the national air quality plan and the NPPF, and mitigation measures proposed by the developer. The Air Quality Directive is transposed into domestic law by the Air Quality Standards Regulations 2010.   The Council had published an Air Quality Management Area Action Plan.

Lindblom LJ, said at paragraph 45 that the policy in paragraph 122 of the NPPF was not engaged.  The policy was directed to situations where some proposed process or operation liable to cause pollution is subject to control under another regulatory regime. Its purpose was to avoid needless duplication between two schemes of statutory control.  For example, the regime for issuing environmental permits under the Environmental Protection Act 1990 operates in parallel to the land use planning system.

Lindblom LJ, at paragraph 46, observed that the Air Quality Directive and the 2010 Regulations are not a licensing or permitting regime of that kind.  The Directive is “programmatic in nature”.   It imposes obligations on the State to comply with the relevant limit values within the shortest possible time, and by the means chosen to achieve compliance

The appeal from Supperstone J was unanimously dismissed.

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