Legal Argument lodged on air quality grounds with Council today

 Following our campaign crowdfunding legal advice, I have sent the following to the Council today.

Dear Sir/Madam

 

On behalf of the Stop the Tesco Toxic Towers group, and having taken independent advice from counsel, I wish to bring the following additional matters to your attention as regards the proposed development’s impact on air quality.

 

You have a copy of the Air Quality Review report prepared by Professor Peckham and Dr Mills (“the Peckham Report”), which highlights a number of serious deficiencies with the developer’s approach to air quality modelling (undertaken by Aether Ltd). While we ask that you pay close attention to the findings of the Peckham Report in its entirety, we highlight the following points in particular:

 

·       The lack of transparency in Aether’s reports, which makes it difficult to independently assess the conclusions therein.

·       The failure to consider or mitigate against the likely breaches of the objective limits for NO₂; half the sites surveyed in the diffusion tube survey had the majority of tubes within 10% of the legal NO₂ threshold and two sites had tubes exceeding the legal threshold.

·       The failure to review the air quality assessment (October 2019) in light of the results from the six-month site-specific survey completed in January 2020.

·       The failure to use the new diffusion tube results to re-run and verify Aether’s original model.

·       The failure to properly consider the cumulative impact from individual sites, as required by the NPPF.

·       The issues with the modelling of receptor heights, particularly in relation to the sunken aspect of the site, which could be under-estimating the actual pollution levels.

·       The failure to assess hourly NO₂ exceedances.

·       The failure to properly interpret the criterion of “where members are regularly present”, which triggers the application of the air quality objectives.  

 

We also wish to highlight the particular issue of the proposed primary school, fronting onto High Road. Aether Ltd admits that there is uncertainty in the modelling results and such uncertainty, coupled with the diffusion tube measurements (one of which gave a value of 40mg/m³ on the High Road),  indicates that it is entirely feasible that post-development values will be at or above 40mg/m³. The siting of a primary school in this location is therefore both contrary to the NPPF and NICE guidelines.

 

It should also be noted that as regards the A receptor at the High Road "there is likely to be a slight impact on the local annual mean NO₂ concentrations as the change in concentration due to the development is 0.8% (page 24 of the Aether October 2019 air quality report)"

  

The February 2018 (the most recent at time of writing) annual NO₂ reading of Chadwell School is 62.9mg/m³ at page 56 of the Redbridge Air Quality Annual Status Report for 2018. This is nearby receptor A. While page 11 of the Aether report of October 2019 states hourly breaches are unlikely at annual levels below 60mg/m³, it seems almost certain that receptor A will have some days with an annual mean of 60mg/m³  so making a breach of the hourly limit of 200mg/m³ a real possibility.

 

Accordingly, we will be writing to Aether for their daily and hourly estimates of NO₂ at receptor A for the year ending 31.12.19 and for 2026. NO₂ pollution is likely to be higher on week days than at weekends and also during the rush hour. Aether has a duty to produce this information to allow Councillors to properly assess if the extra pollution caused by the development will breach not only the annual mean threshold, but also the hourly thresholds. The need to carry out such calculations is proportionate to the size of the proposed development.

 

In light of these issues and shortcomings, we are concerned that the developer has failed to propose any mitigation measures whatsoever. This is the case notwithstanding Aether Ltd’s own conclusion that “it is widely acknowledged that there is no safe level of exposure to air pollution, and as such, the developer is encouraged to consider further mitigation measures to reduce emissions arising from the site.”

 

Moreover, the Health Impact Assessment (October 2019) notes as follows: “The Air Quality Assessment by Aether Ltd recommends measures including ultra-low NOX gas boilers mechanical ventilation or NOx/NO2 filters on the ground to second floor façades of the western building facing High Road.” Worryingly, there is no mention of such recommended mitigation in Aether’s Air Quality Assessment, nor has such mitigation been proposed by the developer.

 

We are further concerned that having had sight of the Peckham Report, the developer has not sought to address and rectify the issues raised in respect of its air quality modelling.

 

The Council is no doubt familiar with the legal framework that underpins issues of air quality and pollution, and its own duties in this regard.  We therefore ask you to carefully assess the available evidence against the legal framework. At present, it is simply not possible to conclude that the proposals will be ‘air quality neutral’ in respect of either NO₂ or particulate matter levels. To the contrary, there is a real likelihood that the development will worsen the air quality. In the absence of any proposed mitigation whatsoever, the proposed development is in conflict with the relevant policies, both at the national level (paras. 180, 181 and 183 NPPF) and local level (London and Redbridge Local Plans) as well as the Council’s Air Quality Action Plan.  

 

Finally, we note that the Council’s proposed cumulative impact study with respect to air quality has not yet been published. Its findings will no doubt be directly relevant to the robustness (or lack thereof) of the developer’s assessments.

 

Yours sincerely

 

Andy Walker

120 Blythswood Road

IG3 8SG