Air quality appeal over 4000-home development thrown out

The Communities Secretary did not have a duty to call in a planning application for a major housing development that would potentially affect air quality in Canterbury, the Court Of Appeal has ruled.

Developers Corinthian Land had received planning permission for Canterbury’s largest planning application in history – a ‘garden suburb’ of over 4,000 homes which would be four times bigger than the city centre.

Two Canterbury residents, Emily Shirley and Dr Michael Rundell had lodged an appeal against the decision as they were concerned about how this development might affect an Air Quality Management Area in Canterbury.

They argued that by failing to call in the planning decision, then Communities Secretary Sajid Javid had disregarded his responsibility as a ‘competent authority’ and neglected the requirement under the Air Quality Directive to achieve the threshold exposure value for nitrogen dioxide within as short a time as possible.

They also called the Secretary of State’s decision not to call in the application ‘irrational.’

However, the Lord Justice Lindblom rejected the appeal, saying: ‘it would also be wrong to think that the Secretary of State’s power to call in must be exercised’

‘If, as I have concluded, the Secretary of State’s call-in discretion is not cut down by the air quality legislation, his freedom to exercise that discretion one way or the other in a case such as this without lapsing into irrationality must be considerable.’

‘But in exercising his call-in discretion, he is not constrained by article 13 of the Air Quality Directive or regulation 17 of the 2010 regulations to conclude that he should determine the application himself.

‘ I therefore conclude that the Secretary of State does not have a general duty as “competent authority” under the Air Quality Directive and the 2010 regulations to use his own powers under the statutory planning scheme to avoid the worsening or prolongation of breaches of limit values. ‘

Lord Justice Coulson agreed with LJ Lindblom’s decision, saying: ‘I agree that, for the reasons given by Lindblom LJ, this appeal should be dismissed. Section 77 gives the SoS a very wide discretion in deciding whether or not to call in a planning application.’