Heathrow air quality issue raised in QC’s legal advice

Robert McCracken QC provides statement on how planning law should be applied with regards to air quality

Questions have been raised about how planning law is applied regarding developments which potentially impact on local air quality by campaign group Clean Air in London.

Heathrow hopes to expand with a third runway added to the north of the current site

It follows an advisory statement issued this week (October 5) by planning and environmental lawyer Robert McCracken QC that touches on air quality implications for high profile developments, such as proposals to construct a third runway at Heathrow Airport.

Heathrow insists that air quality limits can be met at the Airport even with a third runway and has outlined a number of measures aimed at mitigating the impact of additional flight capacity — a position the Davies Commission appears to agree on having recommended the airport for expansion earlier this year.

On the other hand, many campaigners — as well as rival for expansion Gatwick Airport — disagree, arguing that a third Heathrow runway will adversely impact on local air quality and impede the surrounding area from meeting legal NO2 limits which are currently in breach (see AirQualityNews.com story).

Transport Secretary Patrick McLoughlin was reported this week as saying that air quality will be a “major consideration” in the government’s decision over expanding UK airport capacity. A decision has been promised before the end of the year.

However, according to Mr McCracken QC, if the Davies Commission is suggesting that the only relevant requirement is that additional runway capacity should not delay in time the average compliance throughout the London zone “then it has misdirected itself on the law”.

He also explains that, if expansion would lead to higher air pollution, no additional runway can be constructed until a robust air quality plan has been put in place which demonstrably ensures compliance after additional capacity comes into operation.

In his statement, Mr McCracken argues that EU limit values for NO2 must be met throughout each UK air quality zone, and, crucially, that air quality “must not be made even less compliant [by a development] in areas where it is already in breach”.

Applications must be refused by a planning authority, he says, where a development would cause a breach of air pollution limits in the locality. And, they must also be refused “where a development would in the locality ether make significantly worse and existing breach or significantly delay the achievement of compliance with limits values”.

Where limit values are not exceeded in the locality, planning authorities “must try to prevent developments from worsening air quality and to achieve best air quality”, only permitting the former if the development can be justified as a ‘sustainable development’ — i.e. not preventing the meeting of the needs of future generations.

However, the QC states that “project mitigation included in the scheme may be material” to the assessment over whether an application can be considered a ‘sustainable development’ — and Heathrow has included a number of air pollution mitigation measures in its proposals for

Heathrow recently released this map showing independent air quality monitoring data from around the airport (click to enlarge)

expansion.

Clean Air in London

Clean Air in London campaigner Simon Birkett said QC’s advisory statement showed that “the law about air pollution is not being properly applied”.

It was Mr Birkett who initially sought the QC’s advice on the approach which planning authorities across the UK should take to air quality law more than a year ago, and he believes that the statement has relevance “for everyone interested in planning including the government and Mayor of London; and to planning-related decisions about infrastructure, possible airport expansion or east London river crossings.”

Mr Birkett said: “In seeking the advice, CAL has sought to clarify key legal protections that exist for the general public in relation to ambient or outdoor air pollution. CAL’s aim is not to discourage sustainable development but rather to ensure that tough decisions to reduce air pollution and protect public health are taken by the government, the Mayor and other planning authorities. In CAL’s view, such action must include the urgent banning of diesel exhaust from the most polluted places — just as the UK banned coal burning, so successfully, nearly 60 years ago.

“CAL intends to issue a more detailed statement in due course.”

Heathrow

The QC’s statement comes after Heathrow Airport last month issued a graphic map based on independent data showing that areas immediately around the airport are currently meeting air quality limits, while many areas of central London do not.

The map does also show two air quality monitors in the vicinity of Heathrow which are currently in breach of air quality limits, but the airport argues that these breaches are due to traffic pollution on the M4 and another busy junction on which the monitors are situated.

However, Heathrow states that “the Commission has confirmed a third runway at Heathrow can go ahead without breaching air quality legal limits, as long as the airport continues to implement its mitigation plans”.

Matt Gorman, Heathrow’s director of environment and sustainability, said: “Heathrow understands air quality is a real concern for local communities and it’s an issue London needs to tackle urgently. We have made it clear that Heathrow airport has and will continue to play its part. But this data shows that the real culprit of pollution in London is road traffic, so we need other partners to play their role.”