Central Retail Park case highlights air quality issue

A recent Manchester City Council case shows the importance of understanding and complying with air quality guidance in planning applications.

We recently acted for the claimant in a legal challenge to the decision of Manchester City Council to grant itself planning permission for a 24-hour 440-space car park at the site of the former Central Retail Park adjoining Great Ancoats Street.

The retail park was demolished in 2018/2019. The site lies adjacent to the New Islington Free School and is within an Air Quality Management Area.

The Council granted permission on the basis that the air quality and traffic impacts were “neutral” because they would be comparable to the effects of the previous retail park. The Officer Report and the Traffic and Air Quality Reports on which it relied wrongly stated the site still had “extant” permission for the retail park.

The Court upheld the challenge and quashed the decision, finding that the Council had erred in proceeding on the footing that the previous use of the site could be treated as the “baseline” for assessing the impacts of the proposed development.

The judge agreed that the approach failed to comply with the Institute of Air Quality Management Guidance – which Manchester City Council, along with all other Greater Manchester authorities, had agreed to adopt as the basis for assessing the air quality implications of planning applications – and was incapable of providing any relevant assessment of the air quality impact of the proposed development. On the contrary, the “true” baseline was the site as it was at the time of the decision and would be if vacant.

In addition, the judge held that the Council had failed to discharge their obligations under the Public Sector Equality Duty in relation to pupils attending the neighbouring school. In particular, it had not found adequate information to assess the impact that the development would have on children attending the school – especially those with respiratory conditions – despite that being a key element of public opposition to the project.

There are a number of points of wider relevance here.

Firstly, air quality will be increasingly important determining planning applications. As was noted in the judgment, Manchester City Council, like all Greater Manchester authorities, had adopted the IAQM guidance in order to meet their Air Quality Plan objectives, which in turn was part of the Council’s method of compliance with their statutory duties under the Environment Act 1995.

This means that where local authorities fail to understand or follow guidance they have agreed to apply when assessing air quality impacts, they are in danger of being found to have failed to properly assess the impact that a development would have on air quality.

Here, the Council expert’s misunderstanding and misapplication of the guidance (and the subsequent reliance on said experts by Officers) was found to have rendered the Council’s decision unlawful.

It also highlights the importance of developers being careful to ensure that the technical reports they rely on in support of applications comply with any such guidance, rather than relying on the local planning authority to get things right itself.

Secondly in relation to Public Sector Equality Duty, the Court applied established principles set out by the Court of Appeal in Gathercole v Suffolk [2020] EWCA Civ 1179. Not only does this confirm Gathercole as the most useful and up-to-date summary of the principles of PSED but it also highlighted one sometimes overlooked element of PSED – that it includes a duty of inquiry.

It isn’t simply the case that a local authority can reference the PSED in their decision and be said to have met the requirement to have ‘due regard’.

As part of the PSED, local authorities are under a duty of inquiry to ensure they are properly informed of the potential effects of a proposal on those with protected characteristics before having due regard to the PSED.

Here not only had the Council failed to mention PSED in their Officer’s Report but, as their air quality expert had not even acknowledged the proximity of the school, they were unable to show that they had gathered any sufficient information in order to understand the effect a car park would have on children with respiratory problems. This had been raised as a central concern of objectors and no doubt will continue to be, particularly following the inquest verdict in the tragic case of Ella Adoo-Kissi-Debrah late last year.

While the judgment does not establish any new principle in relation to the PSED, it is a useful practical reminder to public bodies that the PSED is not simply a tick-box exercise but requires it to acquire sufficient information to properly assess any impact.

Overall, while these were separate points, there was an interrelation between the site being within an AQMA and being near a school which triggered the Council’s PSED. This was encapsulated in the concluding paragraph of the Judgment:

For all of those reasons, I have come to the conclusion that the defendant failed to have regard to the PSED. The finding adds nothing to my conclusion, but it does stand as a reminder that when development within an AQMA is under consideration the obligation to consider the PSED is likely to arise because of the potentially disproportionate impact some types of development might have on those who suffer from respiratory conditions. This is particularly the case when the AQMA is in place because of the high presence of NO2 because it is well understood that NO2 is capable of playing an “adverse role in exacerbating asthma, bronchial symptoms (even in healthy individuals), lung inflammation and reduced lung function” (see paragraph 10 above and the IAQM guidance) and particularly the case when there is a school (because on any view children are more susceptible to the effect of NO2  see for example Air Quality Directive 2008/50/EC Art.23.1) in the close vicinity to the area of potential development. In such cases the duty may well be discharged by a careful consideration of the issue noted in the officer’s report and backed by expert evidence. In my view this approach would be entirely in line with the defendant’s clear commitment (see policies EN16 and SO6) to improve air quality.

 This is useful guidance that all local authorities should consider when examining the acceptability of development within an AQMA.

This article was co-authored by John Hunter and Piers Riley-Smith.

John (pictured right) is a recommended as a leading junior by Chambers and Partners and the Legal 500 in local government law, planning law and environmental law. He has appeared in a number of leading cases in these areas in the High Court, Court of Appeal and Supreme Court. John was Leading Counsel acting on behalf of the Claimant in the case discussed in this article.

Piers (pictured left) is a specialist Planning Barrister regularly instructed by local authorities, developers and the wider public in planning inquiries. He has also been instructed by both local authorities and developers at local plan and neighbourhood plan exams. He appears in the High Court on behalf of local authorities, and private companies or developers. He has also practiced on the Isle of Man on behalf of the Government. Piers is well known for his expertise in CPO matters. Piers was Junior Counsel for the Claimant.