Perspectives on the UK’s breach of EU air quality rules

16th June 2016


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IEMA

Guido Pellizzaro, associate director at Waterman Group, considers guidance on air quality since the UK was found to be in breach of EU air pollution limits.

In April 2015, the Supreme Court found the environment department (Defra) to be in breach of the EU limits for nitrogen dioxide (NO2). EU law recognises that clean air is a basic human need and imposes legally binding limits on harmful air pollutants. The UK was originally required to meet the EU NO2 limits by 1 January 2010 and subsequently, following a request for an extension, by 1 January 2015. Neither deadline was met. It is unlikely that the UK will be compliant until 2025 and in Greater London by 2030. Consequently, in the April 2015 ruling, Defra was ordered to take immediate action to reduce NO2 as soon as possible.

In January 2016, Defra adopted an air quality plan for NO2 in the UK. The plan notes that non-compliance of the limits is a result of emissions from diesel vehicles, which are not in line with anticipated Euro emission standards. To reduce reliance on diesel vehicles the plan sets out national measures such as providing support and grants to encourage modal shift to ultra-low emission vehicles and local measures such as cycling and walking incentives. Birmingham, Leeds, Southampton, Nottingham and Derby have been declared Clean Air Zones (CAZ) and by 2020 the most polluting diesel vehicles will be discouraged from entering these cities through financial charges and penalties. Defra encourages other local authorities to declare CAZs at their own discretion.

The Defra plan has been criticised by the environmental lawyers ClientEarth and the Institute of Air Quality Management (IAQM) for being unambitious. In particular, the implementation of any CAZs outside of the five cities is unlikely to take place as this is left to the discretion of the local authorities. Consequently, both ClientEarth and IAQM suggest that the plan needs to be developed further and are supportive of controversial major interventions, such as banning certain diesel vehicles from non-compliant areas and introducing higher diesel tax.

The plan also notes that new developments need to be sensitively planned and should include mitigation measures early in design to ensure they do not cause significant additional air quality issues. The plan does not suggest developments should be banned. This view is not necessarily supported by Robert McCracken QC, who in October 2015 reviewed the Supreme Court decision in terms of the lawfulness of granting permission for any development.

It is his view that developments should be refused planning permission if they would cause a local breach of the EU NO2 limits; would worsen an existing breach or delay the EU NO2 limits being met; or would generally worsen air quality. On this basis, there is a real risk that no major developments would be approved in the UK, as by their very nature development generates emissions from new vehicle trips and new energy centres, however small. McCracken does suggest developments may be deemed acceptable if they include a robust, reliable and enforceable mitigation plan to prevent or reduce the extent of NO2 breaches. However, since Defra’s strategy cites traffic emissions as the main cause of non-compliance, it is hard to know how a developer could provide such a mitigation plan.

While the IAQM agrees with McCracken that land use planning can, and should, play a vital part in shaping air quality, the institute notes that there is a lack of guidance on calculating a development’s compliance with the EU NO2 limits and no clarity on the way development applications should be determined against them. Without any assessment criteria, the impact of a development on the EU NO2 limits cannot reasonably be judged.

It is clear that there are currently conflicting views on how the UK should meet the EU NO2 limits. While Defra has adopted its plan, ClientEarth announced in March that it will be taking legal action against Defra as they believe the plan is ineffective. In the meantime, developers are left unsure how they can and should address the EU NO2 limits in their plans.

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