Developers beware rights to (clean) air

Air quality issues have attracted a lot of attention in recent years notably as a result of a number of successful legal challenges by ClientEarth, including challenges to the government’s Air Quality Plans. In the most recent of these challenges the Supreme Court held that the UK government was in breach of Air Quality Directive 2008/50/EC.

In Gladman Developments Ltd v SSCLG and Others [2017], the Planning Court rejected a developer’s legal challenge in relation to the failure of a local authority to determine two applications for outline planning permission for residential developments. The developer had challenged the planning inspector’s approach to air quality.

The proposed residential developments were located within two designated air quality management areas and the inspector concluded that the developer's proposed mitigation measures were insufficient. The Planning Court agreed with his approach.

This is the first court case which has tested the refusal of planning permission on air quality grounds and highlights the growing influence of air quality issues on development projects, particularly where they may have an adverse impact on health. The case has resulted in a delay in determining a large infrastructure project.

Planning applications that are likely to have an adverse impact on air quality will now need to be approached carefully and assessed in enough detail to demonstrate that proposed mitigation measures will be sufficiently effective.