‘Clean Air in London’ obtains QC Opinion on Air Quality Law (including at Heathrow)
Date added: 6 October, 2015
The group, Clean Air in London (CAL), is very aware of the problems of air quality in London. Its founder and director, Simon Birkett, says the law about air pollution is not being properly applied. So they have asked their environmental solicitors, Harrison Grant, to obtain advice from a QC on the approach which planning authorities across the UK should take to Air Quality Law. CAL wants 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 particular CAL wanted to clarify the extent to which planning decisions should take into account breaches, or potential breaches, of air pollution limits. This applies particularly to a Heathrow runway, among other projects. CAL now have advice from Robert McCracken QC. It says: “Where a development would in the locality either make significantly worse an existing breach or significantly delay the achievement of compliance with limit values it must be refused.” And “Any action which significantly increases risk to the health of the present generation, especially the poor who are often those most directly affected by poor air quality, would not be compatible with the concept as health is plainly a need for every generation.” . Tweet
‘Clean Air in London’ obtains QC Opinion on Air Quality Law (including at Heathrow)
Simon Birkett, Founder and Director of Clean Air in London, said:
“The law about air pollution is not being properly applied. So ‘Clean Air in London’ (CAL) asked Harrison Grant, its environmental solicitors, to obtain advice from Queen’s Counsel on the approach which planning authorities across the UK should take to Air Quality Law (see notes).
“In particular CAL wanted to clarify the extent to which planning decisions should take into account breaches, or potential breaches, of air pollution limits.
“CAL received that advice today from Robert McCracken QC and is publishing it immediately. The opinion 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.
“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.”
ENDS
Notes
1. Robert Mc Cracken QC Opinion for ‘Clean Air in London’
“Worsening of Air in an Area Already in Breach such as London:
50. Unless there are already measures in place which will lead to compliance with the Directive before the development is undertaken then any permission for new development which would significantly increase non compliance with a limit value would in my view be in breach of the obligation to refrain measures which jeopardize the attainment of the EU objectives.”
and in the conclusion, it states:
“66. Where a development [see 50. above] would cause a breach in the locality of the development they [local authorities] must refuse permission.
“67. Where a development would in the locality either make significantly worse an existing breach or significantly delay the achievement of compliance with limit values it must be refused.
“68. 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 by the principle of sustainable development as understood in a European Union (not English) sense. Project related mitigation included in the scheme may be material to this assessment. Any action which significantly increases risk to the health of the present generation, especially the poor who are often those most directly affected by poor air quality, would not be compatible with the concept as health is plainly a need for every generation.”
Community groups record ‘illegal levels of air pollution’ in London
5 October 2015 (BBC)
Community groups recording air pollution in London found eight out of nine areas surveyed breached EU limits for nitrogen dioxide (NO2) in the air.
The University College London (UCL) project found the highest level of NO2 in the areas was in Marylebone in central London. Diesel vehicles are a key source of NO2, which is linked to a range of respiratory illnesses. London’s deputy mayor for environment and energy said NO2 was a “problem”.
The results are part of the social enterprise Mapping for Change’s Air Quality Monitoring project. Community groups were given kits to measure the amount of NO2 in July in areas including Marylebone, Soho, Walthamstow, Brentford, Haringey and Ham.
The highest reading was on Marylebone Road, in central London, measuring 145 micrograms of NO2 per cubic meter air (µg/m3), which is nearly four times the EU legal limit of 40µg/m3. This was followed by Shaftesbury Avenue, in Soho, at 119µg/m3.
Public Health England suggests about 3,000 people each year are estimated to die from polluted air in the capital
Tests in suburban areas like Walthamstow and Brentford also showed nearly double the EU limit.
Louise Francis, from UCL and co-founder of Mapping for Change, said the results were a snapshot of the level of pollution in the capital but the actual levels of NO2 could be higher as holiday levels were often lower than other times of the year. She said that the public could make changes to reduce their intake of NO2 by walking down side roads instead of major routes.
Matthew Pencharz, deputy mayor for environment and energy, said: “NO2 remains a problem. We have now seen a 12% reduction in measured NO2 across London showing we are making real progress.”
He added that the introduction of taxi age limits and cleaner buses had also improved air quality, as would the introduction in 2020 of the Ultra Low Emission Zone (ULEZ), which will only allow zero and low-emission vehicles in central London.
Public Health England suggests about 3,000 people each year are estimated to die from polluted air in the capital, making it London’s second highest cause of death after smoking.
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.
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).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.
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
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.”
Directive 2008/50/EC on ambient air quality and cleaner air for Europe (the Air Quality Directive 2008/50/EC). The Air Quality Directive 2008/50/EC applies across Europe to protect public health and has been transposed into UK law. It provides important protections beyond those already in the Clean Air Act 1956 and the Environment Act 1995.
