All About That Base

Good planning relies on good baselines. Determining the correct baseline or fallback position is the vital starting point for determining the effects that a development proposal would have, but is not easy – often involving the need for judgment as to what can be done in any event without planning permission or what the position would be in any event in terms of, for instance air quality, highways movements or the effect on the level of daylight and sunlight that existing properties enjoy.

In Wiltshire Waste Alliance Limited v Secretary of State (Sir Ross Cranston, 10 May 2018), an inspector had granted permission on appeal for the extension of a waste recycling plant.

Before him the company’s case was that if the appeal was dismissed the appeal site would continue to operate pursuant to a series of admittedly complicated planning permissions which, in any event, would allow a significant number of uses. The appeal was advanced on the basis of these “no project” baselines being in existence. No other grounds were advanced for the grant of planning permission. Essentially the claimant’s case against the appeal was that these baseline activities were not in fact permitted under the permissions operating. Further, for practical reasons what was permitted was limited and in any event could not take place.

In his decision letter the inspector had identified that it was crucial to the proper determination of the appeal that the effects of generated HGV traffic on the highway network and air quality were calculated “on a precautionary basis and compared with any planning fall-back position from which realistic baseline positions are drawn. It is established law that for a fall-back position to be taken into account it must be legally possible with respect to existing permitted land uses and also likely to occur on available evidence.”

The planning permission for the existing facility did not include any condition restricting the amount of waste that could be treated, but the application for it had indicated a figure of up to 25,000 tonnes per annum for one area, whereas the fallback position being relied upon by the operator at the appeal had assumed that this could be increased to 75,000 tonnes without the need for planning permission. It argued that the 25,000 figure was no limitation (applying the I’m Your Man case, recently approved of by the Court of Appeal in Lambeth LBC v Secretary of State). The claimant argued that the inspector had not considered whether such an increase in the quantity of material treated would have amounted to a material change of use by way of intensification. Retired High Court judge Sir Ross Cranston accepted the claimant’s argument, but also determined, as had been conceded by the Secretary of State, that the inspector had also wrongly noted that the application document referring to the 25,000 tonnes figure had not been incorporated by reference into the permission. Sir Ross Cranston’s summary of the arguments and reasoning is brief. (In the light of the Lambeth case I don’t see how incorporation by reference of the application document is relevant.)

As well as meaning that the inspector had made a legal error in the way that he had considered the fallback position, the judge accepted that the approach that had been taken “has the potential to infect the conclusions regarding the baseline scenarios” for the purposes of assessment of likely significant environmental effects in the environmental impact assessment.

It is a cautionary tale – ensure that you can justify any fallback or baseline position that you rely upon.

Whilst it didn’t matter for the purposes of the judgment, I assume that the proposal was assessed under the 2011 EIA Regulations. The 2017 Regulations are more prescriptive. EIA now needs to include a “description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the development as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge“.

The more far-reaching and longer-term the effects of a project, the more complex the analysis ends up being, as can be seen from the Secretary of State’s decision dated 10 May 2018 to authorise the development consent order applied for by Transport for London in relation to the proposed Silvertown twin-bore road tunnel under the Thames (a scheme which also was promoted under the previous EIA legislation). The task of analysing what would be the position in terms of issues such as congestion and air quality is complex. There will be much focus on his conclusion on air quality effects in particular, namely that “greater weight needs to be placed on the impact of the Development on the zone [for the Greater Urban London area as a whole] rather than at individual receptors. The Secretary of States therefore places weight on the fact that whilst some receptors will experience a worsening in air quality as a result of the Development, overall the Development should have a beneficial impact on air quality and that the Development is not predicted to delay compliance with the [Air Quality Directive] in the timeframes that the Updated [Air Quality Plan], including the zone plan for the Greater Urban London area, sets out as being the quickest possible time.”

We have seen recently how assumptions as to air quality levels can be proved wrong in ways that are unexpected, such as the VW emissions scandal that threw into question the degree to which air quality levels would improve as newer vehicles replaced older ones on the road, or ways which are possibly less unexpected, such as the Government’s delayed compliance with the Air Quality Directive.

Accurate analysis is of course equally necessary with more routine non-EIA projects: that is, accurate analysis both in the relevant technical assessment, whatever it may be, and accurate analysis by the decision maker in taking it into account in reaching a decision. R (Rainbird) v London Borough of Tower Hamlets (Deputy Judge John Howell QC, 28 March 2018) was a recent example of a planning permission being quashed (that the council had granted to itself for an affordable housing development) because of incorrect conclusions being drawn from a report on sunlight and daylight issues, that in itself was held to be significantly misleading in a number of respects, both in relation to the relevant baseline position and in its analysis of compliance with the relevant BRE guidelines that had been incorporated into the council’s local plan. However, every case inevitably turns on its own facts and, as the judge identified, the threshold for challenge is high:

⁃ Baroness Hale in Morge v Hampshire County Council (Supreme Court, 19 January 2011: “reports obviously have to be clear and full enough to enable [members] to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves

⁃ Lindblom LJ in Mansell v Tonbridge and Malling Borough Council(Court of Appeal, 8 September 2017): “The question for the court will always be whether, on a fair reading of his report as a whole, the officer has significantly misled the members on a matter bearing upon their decision, and the error goes uncorrected before the decision is made. Minor mistakes may be excused. It is only if the advice is such as to misdirect the members in a serious way—for example, by failing to draw their attention to considerations material to their decision or bringing into account considerations that are immaterial, or misinforming them about relevant facts, or providing them with a false understanding of relevant planning policy—that the court will be able to conclude that their decision was rendered unlawful by the advice they were given.


Where the line is drawn between an officer’s advice that is significantly or seriously misleading—misleading in a material way—and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact.., or has plainly misdirected the members as to the meaning of a relevant policy… There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law…. But unless there is some distinct and material defect in the officer’s advice, the court will not interfere
.”

⁃ Section 31 (2A) of the Senior Courts Act 1981 provides that the High Court “must refuse to grant relief on an application for judicial review…if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred” unless it is appropriate to disregard this “for reasons of exceptional public interest.”

Simon Ricketts, 12 May 2018

Personal views, et cetera

The UK Government & Air Quality (ahem)

The saga over the UK government’s non-compliance with air quality standards has casualties: a recent study  estimated that around 40,000 premature deaths are caused per year due to air pollution.


The government has been in breach of the Air Quality Directive  since 1 January 2010, by failing to take measures to ensure defined maximum limits of nitrogen dioxide are not exceeded. Limits are currently exceeded in 38 out of 43 zones in the country (each zone representing a conurbation with a population exceeding 250,000). By way of example, acceptable levels are not expected to be realised in London until 2025. 
The Supreme Court in R (ClientEarth) v Secretary of State  (29 April 2015) made a “mandatory order requiring the Secretary of State to prepare new air quality plans under article 23(1), in accordance with a defined timetable, to end with delivery of the revised plans to the Commission not later than 31 December 2015”. 
The Government purported to comply with the order by way of an announcement on 17 December 2015  the main thrust of which was the introduction of Clean Air Zones in Birmingham, Leeds, Nottingham, Derby and Southampton by 2020, within which zones the most polluting vehicles would be discouraged through charging schemes. 
ClientEarth then embarked on a second set of proceedings, challenging the proposals on two grounds:
– they did not meet the Directive’s requirement that exceedance periods be kept “as short as possible”

– The government “gave disproportionate and unlawful weight to cost and political sensitivity“.

The factual background and law are set out in detail in Nathalie Lieven QC’s skeleton argument for ClientEarth.
In a bad week for the Government Legal Department, the High Court found for the claimant in a robust judgment by Garnham J handed down on 2 November 2016 (ClientEarth (no 2) v Secretary of State).

Some interesting passages:
Para 50: “…I reject any suggestion that the state can have any regard to cost in fixing the target date for compliance or in determining the route by which the compliance can be achieved where one route produces results quicker than another. In those respects the determining consideration has to be the efficacy of the measure in question and not their cost.”
Para 53: “…implicit in the obligation “to ensure” is an obligation to take steps which mean meeting the value limits is not just possible, but likely.”
Para 69: “Whatever the reason for selecting 2020 may have been, however, I am satisfied that the department erred in law in selecting so distant a date. The problem of reducing nitrogen dioxide levels was urgent and the plan to do so should have been aimed at achieving compliance in the shortest possible time, regardless of administrative inconvenience or the costs of making the necessary investigations.”
Para 86: “…In my judgement, the [Air Quality Plan] did not identify measures which would ensure that the exceedance period would be kept as short as possible; instead it identified measures which, if very optimistic forecasts happened to be proved right and emerging data happened to be wrong, might achieve compliance. To adopt a plan based on such assumptions was to breach both the Directive and the Regulations.”
Para 89: “…it seems to me likely that fixing on a more proximate compliance target date and adopting a less optimistic assumption for likely emissions might well mean that CAZs are required in more cities, but ultimately that will depend on the outcome of further modelling.”
The judge’s conclusions are set out in para 95: 
“i)  that the proper construction of Article 23 means that the Secretary of State must aim to achieve compliance by the soonest date possible, that she must choose a route to that objective which reduces exposure as quickly as possible, and that she must take steps which mean meeting the value limits is not just possible, but likely.

ii)  that the Secretary of State fell into error in fixing on a projected compliance date of 2020 (and 2025 for London); 


iii)  that the Secretary of State fell into error by adopting too optimistic a model for future emissions; and 


iv)  that it would be appropriate to make a declaration that the 2015 AQP fails to comply with Article 23(1) of the Directive and Regulation 26(2) of the Air Quality Standards Regulations 2010, and an order quashing the plan. “

Despite what the Daily Mail may think, the judge did not prescribe specific steps for the government to take, rejecting Nathalie Lieven’s examples of “fiscal measures to disincentivise the use of diesel cars and vans, locally targeted scrappage schemes, targeted vehicle retrofitting schemes and measures specifically targeting diesel cars, which she suggested ought to be adopted so as either to make more certain the achievement of the objectives in the Directive or advance the date of compliance“. How the limits are to be complied with is for the government to decide.


For a detailed analysis I recommend David Hart QC’s blog post.

The ruling led to a debate in the House of Commons on 3 November 2016. The minister stated: “We accept the judgment of the court and will now carefully consider it, and our next steps, in detail“. Does “accept” mean no appeal? We shall see. 
What does the ruling mean for planning decisions?
The government’s Planning Practice Guidance has a useful section on air quality.

However Robert McCracken QC’s 6 October 2015 opinion has been widely circulated as somewhat of a lobbying document for Clean Air in London, urging a more restrictive approach. It postulates that:
– because of the government’s breaches of the Air Quality Directive, LPAs have a duty in their decision-making to seek to achieve compliance with the Directive’s limit values

– where a development would cause a breach in the locality, would make significantly worse an existing breach or delay the achievement of compliance with limit values, they must refuse permission

– even where limit values are not exceeded in the locality, LPAs must try to prevent developments from worsening air quality and to achieve best air quality. 

The opinion relies on the CJEU’s ruling in Naturschutz Deutschland v Germany  (1 July 2015), a case about water standards under the EU Water Framework Directive. The conclusions reached in the opinion would now need to be tempered by the High Court’s ruling in the Enderby Wharf cruise liner terminal case, PS by his litigation friend TS v Royal Borough of Greenwich  (Collins J, 3 August 2016), where a claim that the LPA failed to consider and give effect to the need to ensure that air quality standards were met was unsuccessful – particularly as the opinion specifically refers to the cruise liner proposal by way of example and suggests, not borne out by the case, that the permission would only be lawful with a Grampian condition preventing use of the terminal until air quality could be shown to be acceptable. 

However (particularly following the latest ClientEarth ruling), in order to minimise the risk of judicial review, undoubtedly care is needed in relation to the analysis and assessment of any project that is in a location where nitrogen dioxide values are exceeded, would be exceeded as a result of the scheme, or would be significantly increased. There is obviously also a read across to the question of Heathrow expansion…
Simon Ricketts 4.11.16

Personal views, et cetera