Air quality and new development: Pressure is mounting for tougher regulations


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When it comes to air pollution, everyone would say they want to breathe better air, but we are limited to what we can do as individuals.

We are reliant on government bodies and large corporations to set standards and targets or make changes.

However, a number of things have happened in the past couple of years that have thrown the spotlight on poor air quality, and pressure is building from a variety of different sources for tougher targets. For those planning a new development, this means minimising the impact a new scheme has on air quality will become increasingly important.

So, what has happened that will influence changes at the top? Most recently, we’ve had the Covid-19 pandemic, which has raised awareness of the impact of air pollution.

Air quality improved during lockdown

It was notable how much cleaner the air was in cities during the first lockdown when vehicle traffic was minimal. People walked more and spent more time in their neighbourhoods. Those with underlying health conditions such as severe asthma also came into the spotlight as they are at higher risk from the virus.

Then there is Brexit; the EU previously set air quality targets. The UK failed to meet those targets and has been taken to court by clean air campaigners as a result.

But now the UK Government gets to set the standards, which leads us to the Environment Bill currently making its way through Parliament. It is supposed to plug the governance gap as well as set out a new framework for environmental law, and there is a chapter on air quality, which in its current form only has a commitment to set a target.

“Lawyers will know, an agreement to agree is not a legally-binding contract. The Bill doesn't actually commit the UK to meet any sort of target,” says Amanda Stubbs, Partner at Trowers & Hamlins.

Lobbying for air quality targets

This has opened the door for air quality campaigners lobbying hard to get a target included in the Environment Bill rather than wait for secondary legislation to set one.

In November, when the UN’s climate change conference COP26 opens in Glasgow, all eyes will be on the UK’s climate and pollution strategy, putting further pressure on the UK Government. “I think the Government will want to show the world that we've moved on since the Climate Change Act of 2008, but that we're still leading the way,” says Stubbs.

Further pressure is coming from a landmark inquest ruling made at the end of last year. Pollution near the London home of 9-year-old Ella Kissi-Debrah was recorded as having made a material contribution to her death in 2013. It’s the first time in the UK that air pollution has been listed in this way.

Currently, air quality and climate change regulations and legislation are treated separately. But the two are intrinsically linked. Around the world, there are increasing numbers of high-profile cases being brought to court, which challenge Governments and businesses, particularly in the oil and gas sector, on their environmental strategies, commitments and records.

Governments taken to court over climate strategy

For example, in Germany, a group of young activists took the Government to court over its Climate Change Act, claiming it wasn’t tough enough and their generation would feel the effects. The court ruled in their favour.

“There's a huge momentum behind these sorts of cases, particularly from the younger generation because they will feel the worst of the effects if climate change isn’t adequately addressed now,” says Helen Mitcheson, Solicitor at Trowers & Hamlins.

As the court case in Germany shows, not setting effective targets is risky for Governments, and businesses. “If there aren’t appropriate regulations for air quality, it essentially becomes deregulated, which potentially increases the risk of litigation,” says Mitcheson.

And this is where developers need to be aware when bringing forward new development; air quality will become a more important consideration, particularly if deleterious impacts on air quality could be proved to have been preventable.

Contributions towards public transport

Through the planning system, developers are increasingly required to make significant financial contributions to local public transport systems and have a travel plan to demonstrate that the impact their scheme will have on traffic volumes and flow can be managed sustainably.

Existing residents are naturally vocal about increases in traffic and deliveries in their neighbourhood, and the pandemic has only served to highlight the issue.

Local authorities can use travel planning to lean on developers, but they view each development largely in isolation. “Genuine environmental impact assessment of a development really needs to look at the cumulative impacts in the wider area, which typically only happens if you have a large-scale development,” says Stubbs.

Epping Forest District Council has adopted an Interim Air Pollution Mitigation Strategy following lengthy discussions and agreement with Natural England because of the danger pollution poses to the forest as well as the people living in the area. The forest is designated as a Special Area of Conservation (SAC) because of a number of unique characteristics, including its age – some of the trees are among the oldest in Europe. But it is also located on the edge of London and adjacent to the M25 motorway, so the strategy does look to mitigate the impact new development has on air quality.

Impact on planning

Until the adoption of an Air Pollution Mitigation Strategy, the Council cannot issue planning permission for any development that results in an increase in the amount of traffic using roads in the SAC or in close proximity to it.

The Interim Strategy allows the Council to determine planning applications that are currently on hold but proposes a series of actions that will inform the final air pollution strategy. These include encouraging sustainable transport, including walking and cycling and less reliance on car usage.

Will other local authorities follow suit in introducing policies that focused on improving air quality? Even without a special conservation area, they might have to.

The issue of poor air quality isn't going away anytime soon; momentum is growing to address it, and it will continue to grow. So developers with new schemes need to plan how they will minimise the impact,” says Mitcheson.

Turn redundant urban retail space into green space to improve air quality? Green spaces in urban areas can help with the dispersal of pollutants and support good mental health and well-being. While some local authorities opt for pocket parks and roof gardens to create urban greenery, there is a more radical proposal in Nottingham.

Last year while the city’s Broadmarsh shopping centre was being demolished, ready for redevelopment, its owner Intu went into administration.

Thousands of members of the public, backed by Nottinghamshire Wildlife Trust have signed a petition calling for the 6-acre site to be turned into green space, and with the help of Influence Landscape Architects have drawn up a proposal for a new park. But rather than manicured lawns and landscaping, its vision is for natural habitat with wetlands, ponds and meadows.

Is the idea too wild to ever come to fruition? It is no secret that physical retail is struggling due to changes in shopping trends, and many developers, landlords, and local authorities are looking for alternative uses for empty retail space.

Nottingham City Council is the freeholder of the Broadmarsh site and is aiming to be the first carbon-neutral city by 2028. Turning a former shopping centre into a green space would certainly be a step towards achieving those ambitions.

The problem is how you generate financial value from a park to replace the income once generated by the shopping centre. Mitcheson thinks it could be a case of shifting the financial driver: “If you did convert an old, run-down city shopping centre into a park, you'd quickly find cafes and restaurants queuing up to rent the premises around it.”

Supporters of the park idea suggest the value comes from making the city centre more attractive to live and work – and healthier. Executive Vice President of the Nottinghamshire Wildlife Trust, Tom Huggon, sets out the case which you can read here

It’s all hypothetical at this stage but certainly, one to watch.

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