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High Court rejects legal challenge to urban extension

Two campaigners have failed to win permission from the High Court for judicial review of a planned urban extension to Canterbury on air quality grounds.

Local residents Emily Shirley and Michael Rundell had taken the case against Communities Secretary Sajid Javid, with Canterbury City Council and developer Corinthian Mountfield as interested parties.

The case concerned an air quality assessment that formed part of an environmental statement submitted in March 2016 by Corinthian Mountfield for an urban extension of some 4,000 homes.

Its air quality assessment examined both the area itself and the city centre, where an air quality management area had been designated.

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The report concluded that no excessive NO2 pollution would arise but this was challenged by Stephen Peckham, professor of health policy at the University of Kent, who suggested that flaws in the traffic modelling affected the outputs reported and so underestimated pollution levels. The Department for Communities and Local Government though decided not to call in the proposal.

The claimants argued that the DCLG should have called it in under the EU Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe.

In Shirley & Anor, R (on the application of) v Secretary of State for Communities & Local Government & Ors [2017] EWHC 2306 (Admin) Dove J said this was an incorrect interpretation of the directive’s requirements.

Accordingly two other grounds also failed, which were based on irrationality and that the department had made a perverse decision.

“I do not consider that it was perverse or irrational for the [DCLG] to point out that matters of substantive concern in relation to air quality remained to be addressed by the local planning authority or, alternatively, within a legal challenge to their decision,” the judge said.

Shirley has also launched a legal challenge to Canterbury’s adoption of its local plan over alleged breaches of procedural requirements over compliance with air pollution laws.

Canterbury’s plan proposes 16,000 new houses on farmland outside the city boundary, which Shirley argues will result in up to 112,000 additional car journeys daily. She also says that the air pollution impact was not properly considered by the council.

Mark Smulian

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