Courts rule for Tesco Toxic Towers but leave door ajar for a future challenge on school

While it is disappointing that the Court of Appeal refused our application for permission to appeal per the order it is not the end of our campaign.

There is short video message below:

The High Court judgment from February 2023 makes it clear that the issue of the school has been deferred until the school layout plan has been published. I quote from the relevant paragraph 12

“12         Mr Garvey accepts that that condition, either read on its own or read together with condition 82 which concerns an air-quality positive statement, is such that it is clear that the time for compliance with paragraphs (b) and (d) within the policy has not yet arisen so far as concerns the school.  The question of the design solutions that are necessary to address the requirements of the policy will be considered at the time that the Council takes its decision on condition 87 concerning the school layout. At that time, the Council’s decision will need to comply with Policy SI 1, in the sense of being consistent with that policy. If the Council’s decision on condition 87 is made without proper consideration of the policy, that decision would be challengeable, for that reason.” (My emphasis the full February judgement is at the end of this post)

This High Court judgement was risible because it ignored our best point about the location of the proposed primary school beside a busy High Road.  The school should have been located inside the development away from the worst of the pollution.

The Court of Appeal also ignored the point about the location of the school in its judgment which is cut and pasted below.

Reasons 1. Both grounds are unarguable for the reasons given by the Judge below. An appeal would not have any real prospect of success. 2. There is no other compelling reason why an appeal should be heard. 3. In any event, there is no good reason for the delay in filing the application for permission to appeal. The consequences are serious, as effectively blocking the further progress of this significant project; and the consequences have been aggravated by the subsequent failure to order a transcript promptly. If there were substance in the proposed appeal, I might possibly have allowed an extension for the reasons outlined by the First Interested Party, though the Appellant has been dicing with procedural death by failing to act promptly. However, since there is no substance in the substantive appeal, it is not necessary to determine the application for an extension. Where permission has been granted, or the application adjourned, any directions to the parties (including, if appropriate, any abridgement of the 35 day time limit for filing evidence provided for in CPR 54.14) Signed: BY THE COURT Date: 14 August 2023  ENDS EXTRACT

Winning on the point about the school may have blighted the whole development because what parent would want to buy a home by a road so polluted the courts have decided that a school should not be located by the road?

A separate, but related judgment, on local child death and hospital admission stats has been lost recently and I will write more on this later. I am also concerned about a press report which suggests Weston Homes seem to assume what the courts would decide in advance, and I will write further on this too.

 

February 2023 judgment in full below.

 

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IN THE HIGH COURT OF JUSTICE KING’S BENCH DIVISION ADMINISTRATIVE COURT

No. CO/2471/2022

 

Royal Courts of Justice

 

Tuesday, 14 February 2023

 

Before:

 

MR JUSTICE SWIFT

 

BETWEEN:

 

THE KING

on the application of                                                      

                                                                              ANDREW JOHN WALKER                                  Claimant

 

-  and  -

 

                                                                    LONDON BOROUGH OF REDBRIDGE                     Defendant

 

- and -

 

                                                              WESTON HOMES PLC                                 Interested Party

 

__________

 

MR J HUNTER (instructed by Latimer Lee) appeared on behalf of the Claimant.

 

MR K GARVEY (instructed by Winckworth Sherwood) appeared on behalf of the Defendant.

 

MR P VILLAGE KC and MS C COLQUHOUN appeared on behalf of the Interested Party.

__________

 

JUDGMENT

MR JUSTICE SWIFT:

1                 This is a renewed application concerning two of four grounds of challenge raised by the Claimant to the Defendant’s decision to grant planning permission to the Interested Party for a development at Chadwell Heath.  The renewed application on the other two grounds, which were Grounds 1 and 3 in the Statement of Facts and Grounds, was considered and refused by Holgate J on 16 December 2022.  The judgment he gave on that occasion explains why the decision he took on the two grounds that are now before me, Grounds 2 and 4 in the Statement of Facts and Grounds, needs to be looked at again and are, therefore, before me today.

2                 The planning permission granted allows demolition of the buildings presently on the site – a supermarket and a petrol station – and redevelopment of the site, comprising a replacement supermarket, a series of apartment blocks, other residential units and units for commercial use, and a three-form entry primary school.

3                 Ground 2.  This ground has been refined since originally pleaded in the Statement of Facts and Grounds.  It is now formulated as a failure to take account of Policy SI 1 in the London Plan, by reason of a failure to consider whether appropriate design measures had been employed to reduce or minimise the exposure to the existing poor-quality air, in particular exposure of pupils at the proposed school to existing poor air quality.  It is agreed that paragraph B of Policy SI 1 is the material part; that requires certain things of development plans “to tackle poor air quality, protect health and meet legal obligations.” 

4                 Paragraph SI 1.B(1) requires that development proposals should not: 

“(a) lead to further deterioration of existing poor air quality

(b) create any new areas that exceed air quality limits, or delay the date at which compliance will be achieved in areas that are currently in exceedance of legal limits

(c) create unacceptable risk of high levels of exposure to poor air quality.”

5                 Paragraph SI 1.B(2) then sets out the minimum that is required for this purpose:

“(2) In order to meet the requirements in Part 1, as a minimum:

a)      development proposals must be at least Air Quality Neutral

b)     development proposals should use design solutions to prevent or minimise increased exposure to existing air pollution and make provision to address local problems of air quality in preference to post-design or retro-fitted mitigation measures

c)      major development proposals must be submitted with an Air Quality Assessment. Air quality assessments should show how the development will meet the requirements of B1

d)     development proposals in Air Quality Focus Areas or that are likely to be used by large numbers of people particularly vulnerable to poor air quality, such as children or older people should demonstrate that design measures have been used to minimise exposure.”

(a) and (c) of paragraph 2 are not an issue in this case; the question is whether the decision took account of (b) and (d).

6                 The Claimant’s submission is that these matters are not referred to in the officer’s report, and that it can be inferred from this that the councillors who took the decision did not take account of the requirements to use design solutions to make provision to address local problems of air quality and demonstrate that design measures had been used to minimise the exposure of vulnerable groups, such as children and older people, to poor air quality.

7                 For the purposes of considering whether this ground of challenge is arguable, I have well in mind the cautionary words of Lindblom LJ in R (Mansell) v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314.  When a question such as this one depends on consideration of the contents of an officer’s report, that report must be read fairly, in the round, and with due regard to content.  Officer’s reports speak to the audience of local councillors who can be assumed to be informed on local issues – in this instance, air quality and the requirements of the London Plan. 

8                 The material parts of the officers’ report are sections 21 and 23.  Both expressly address the Air Quality Neutral requirement in Policy SI 1.B.2(a) and (c); see section 21 of the officer’s report at paragraph 21.6 and paragraphs 21.10-21.12, and also in section 23 at paragraphs 23.19-23.29.  At paragraph 21.19, the general conclusion is stated that the proposal complies with Policy SI 1.  The same point is made at paragraph 23.34.  However, neither section 21 nor section 23 of the report expressly considers the discreet requirement at paragraphs (b) and (d) of the policy to use design solutions to prevent or minimise exposure to existing air pollution, and to demonstrate that design proposals have been used to minimise exposure to poor-quality air.  For this purpose, I have also considered the parts of the Environmental Statement mentioned in section 23 of the officers’ report – chapters 2, 4 and 12 – but these parts of the Environmental Statement do not take this matter any further. 

9                 However, there is evidence elsewhere that this part of the policy was considered. The recommendation in the officer’s report was to grant planning permission subject to conditions.  What was condition 62 in the recommendations section at the end of the officer’s report became condition 61 in the grant of planning permission made by the Council.  That condition is as follows: 

“All the residential dwellings located at floor 7 and below for all the residential blocks directly facing onto the high road Goodmayes to the north, the railway line/service road to the south, and the existing access road into the site to the east shall be fitted/ventilated with either air obtained from elevated locations within the development and/or the use of nitrogen dioxide filters, both of which shall utilise closed mechanical ventilation to ensure national objectives with respect to air quality are met for future residential occupiers of the development. 

This mitigation shall be operational prior to any occupation by residents at floor 7 and below in the locations described above and with regard to the relevant phase/s identified on the phasing plan submitted under condition 3 above, and shall be retained and maintained thereafter unless otherwise agreed in writing with the local planning authority. 

Reason: in order to ensure the development meets local, regional and national air quality objectives, and it accords with Policy LP 24 of the local plan and Policy SI 1 of the London Plan.”

This appears to be in place as a form of protection against the existing air pollution.

10              The Claimant’s case is that, while that may have been considered so far as concerns the residential building, that says nothing as to whether the same point was either considered or sufficiently considered for the purposes of the proposed school premises. The question at this stage is whether that is an inference that can reasonably or at least arguably be drawn, or whether the correct inference – whether from condition 61 or from any other aspect of the grant of planning permission – is that this part of the policy was properly taken into account so far as concerned the school, and that the position as matters presently stand is consistent with a correct, or at least a permissible, application of Policy SI 1.

11              My conclusion is that the latter inference is correct and the Claimant’s case is not a properly arguable case.  One point is that the latter inference is by far the more natural one. The significance of Policy SI 1, and this part of it in particular, must have been well known to the councillors who took this decision. More importantly, Mr Garvey, who appears for the Council, has drawn my attention to other conditions contained within the grant of planning commission and, in particular, condition 87.  That condition is as follows:

“School internal layout: prior to commencement relevant works phase identified on the phasing plan submitted under condition 3 above, full details of the layout of the proposed school shall be submitted to and approved in writing by the local planning authority.  The subsequently approved details shall be implemented in full prior to the commencement of the use.”

12              Mr Garvey accepts that that condition, either read on its own or read together with condition 82 which concerns an air-quality positive statement, is such that it is clear that the time for compliance with paragraphs (b) and (d) within the policy has not yet arisen so far as concerns the school.  The question of the design solutions that are necessary to address the requirements of the policy will be considered at the time that the Council takes its decision on condition 87 concerning the school layout. At that time, the Council’s decision will need to comply with Policy SI 1, in the sense of being consistent with that policy. If the Council’s decision on condition 87 is made without proper consideration of the policy, that decision would be challengeable, for that reason. 

13              Since that is so, it seems to me that what is referred to in the officers’ report is sufficient for the present purposes. I accept the submission made both by Mr Garvey and by Mr Village KC for the Interested Party that the position is different, or was different, so far as concerned the residential blocks.  They are not subject to a layout condition equivalent to condition 87; no doubt that was because the layout of the blocks was already sufficiently settled such that condition 61 could be put in place to address the requirements of (b) and (d) within the policy at this stage. 

14              In the premises, I am satisfied that it is not arguable that the decision the Council took to grant planning permission rested on an insufficient consideration of this part of the policy so far as concerns the proposed school premises. That matter still remains to be dealt with and will need to be dealt with by the Council, as I say, at the time that condition 87 falls to be addressed.

15              One subsidiary and ultimately irrelevant matter that was addressed in submissions concerned whether or not I should approach my decision on Ground 2 on the assumption that it was relevant to take into account what was said at paragraph 84 of a report prepared on behalf of the Mayor of London on 7 March 2022 relating to this development. That report addressed the question of whether the Mayor should be the person who decided whether or not to grant planning permission or whether that decision should rest with the local planning authority.  The Mayor decided not to call the decision in for his consideration.

16              In the course of the March 2022 document, at paragraph 84, the narrative refers to Policy SI 1, and refers first to the question of whether the proposed development was air quality neutral, but then, in relation to the requirement for design solutions, goes on to make the point that the school:

“… has been designed to minimise exposure, with the main entrance and all external play space to be to the rear of the building away from the high road.”

Mr Village submitted that I could properly take this into account when deciding whether or not to grant permission on Ground 2 of the claimant’s grounds. 

17              In my view, whether or not this is taken into account is entirely irrelevant.  It is irrelevant because the part of the Mayor’s report I have just quoted does no more than repeat, almost word for word, a passage that appears in the officers’ report at paragraph 14.16.  That paragraph too makes the point that the main entrance to the school is orientated so that it is south-facing and, for that reason, does not face the road. The same point is made in relation to the main play area that will be provided for the purposes of the pupils at the school.  That being so, the existence of paragraph 14.16 in the officer’s report supports my view that subject to proper consider of condition 87 in due course, the decision taken by the local authority in May 2022 did have sufficient regard to the application of Policy SI 1, so far as concerns the primary school part of the development.

18              Ground 4. Ground 4 is that, when taking the decision to grant planning permission, the Defendant failed to comply with the public sector equality duty: the obligation under section 149 of the Equality Act 2010 to have due regard to various prescribed matters. Here too, the Claimant’s case focuses on the lack of consideration of mitigating measures to be applied to the school premises to minimise or prevent increased exposure to the existing poor-quality air. 

19              I consider that this submission fails for the same reasons, essentially, as the submission on Ground 2.  So far as concerns Ground 2, I have decided that permission should be refused at this stage because: the application of Policy SI 1, so far as concerns the school, is effectively taking place in stages; and that, for present purposes, the May 2022 decision, sufficient regard was had to it; and that it remains to be seen whether, when condition 87 is considered, the Council continues to ensure its conclusions comply with that policy. 

20              The public sector equality duty is a continuing obligation when, as in the present case, there are a series of linked decisions or a series of decisions all relating to a single project.  For the purposes of the decision already taken, I consider that the matters I have already referred to in the report, including paragraph 14.16, do evidence that sufficient due regard was had to the requirements set out in section 149 of the 2010 Act insofar as they relate to the question of what measures, if any, should be taken to protect those attending the school from pre-existing poor-quality air.

21              When the Council turns its mind to its decision on condition 87, the public sector equality duty will apply equally to that exercise of its functions on that occasion.  At that stage, the Council will need to comply with the public sector equality duty when it is considering what decision it should take on whatever layout proposal has been advanced by the interested parties.  Be that as it may, it is clear for present purposes that what has happened to date has not involved any arguable breach of the public sector equality duty. 

22              For those reasons, permission to apply for judicial review is refused on Grounds 2 and 4.

23              I also have before me an Application Notice, sealed on 30 January 2023, which is an application by the Claimant to rely on an additional document in support of the permission application.  Having heard argument on the substance of that application, including the Claimant’s submissions on the relevance of this document, I am satisfied that it is not necessary for me to take a decision on this application.  The document itself does not contain anything that is of assistance for the purposes of deciding the renewed applications for permission to apply for judicial review.