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10 August 2018

Clean air strategy: is the ambition met with details?

This article was first published by Estates Gazette.

After the Great Smog, a severe air pollution event that engulfed London in 1952, the Beaver Committee set out a list of recommendations – including restrictions on coal fires – and a request that ‘the general public should refrain from bringing motor vehicles into densely populated areas’ during smog events. Several decades later, the government has published a draft air quality strategy for consultation, and although much of it talks about the same restrictions and issues, it still lacks detail.

Inevitably, there have been significant milestones in between the Great Smog and now. Most importantly, the government has produced plans dealing with air quality in 2011, 2015 and 2017,  all of which have been successfully judicially reviewed by ClientEarth. In the last round of litigation, the Supreme Court ordered the government to produce a ‘supplement’ to the 2017 plan by October 2018. The government has now produced its latest Clean Air Strategy. It is intended to finally fulfill the UK’s obligations under the National Emission Ceilings Directive, which sets legally binding emission-reduction targets for five pollutants.

The strategy

The new strategy has several notable elements. The first looks at the public and how to allow individuals to have more information about air quality. The concrete proposals deal with establishing a public message service to inform people about air quality and proceeding with the ‘Green Great Britain week’ in the autumn. The government has also committed to working with media outlets to help inform the public about adverse air quality effects and how people can, on an individual level, reduce their emissions.

The second focuses on the natural environment, with the government committing to monitor the effect of air quality on the environment. More importantly, it will provide guidance for local authorities explaining how the cumulative impacts of nitrogen deposition on natural habitats should be mitigated and assessed through the planning system.

This guidance may affect how developers assess their schemes to ensure that local authorities grant consent to development proposals. Quite how much of an effect this guidance will have remains to be seen. It is also unclear how much the guidance will affect those developments currently going through the planning system. Consent for the Silvertown Tunnel was held up by the secretary of state while Transport for London remodelled air quality data, demonstrating how delays are plausible even for those in the final stages.

Clean Air Strategy (2018): the key proposals

  • Produce guidance on the cumulative impacts of nitrogen deposition on natural habitats;
  • Enactment of legislation that will give local authorities ‘new powers to improve air quality’;
  • Introduce a statutory framework for clean air zones to simplify current overlapping frameworks to create a single approach covering all air pollution;
  • Enforcement action against ammonia from farming by requiring farmers to invest in the infrastructure and equipment that will reduce emissions; and
  • Increased public engagement and the introduction of a messaging system to provide air quality forecasts to the public.

The third aspect of the new strategy looks at how to control new industries such as biomass generators which, although they support decarbonisation, can still have adverse affect on air quality. The government proposes consulting on excluding biomass from the financial schemes that encourage renewable energies if installed in urban areas that are on the gas grid. Again, though, some of the proposals have not been set out and a ‘proposed way forward will be set out in the final Clean Air Strategy.’

The fourth aspect deals with transport air pollution effects. The government has said it will introduce legislation to allow the recall of vehicles and machinery for any failures in their emissions control system but specific proposals are not detailed. In particular, existing traffic management powers are a vital tool that many local authorities have already used – clarifying or expanding them would have been welcome.

The final important aspect of the new strategy considers proposed controls on industry and farming, including encouraging farmers to make investments in infrastructure and equipment that will reduce emissions.

Foggy details

One particular aspect of the new strategy that lacks detail is the precise scope of the powers proposed for local authorities. Several elements of the strategy state that local authorities will have their powers bolstered and strengthened without making the case that the powers are
lacking in the first place.

In this vein it is worth noting that traffic powers at a local level, as well as the powers under the Clean Air Act 1993 to control smoke, are wide in breadth and together can be used as establishing the core parts of a ‘Clean Air Zone.’ While clarity in the overlapping legislation would be welcome, the strategy may have the perverse effect of encouraging local authorities to wait for the clearer powers under the proposed consolidation legislation before taking air quality measures using the existing wide powers. Accordingly, more focus should be placed on educating local authorities on these powers than consolidating them.

The impact on developers also depends on how far local authorities are required to scrutinise the effects of a particular development on air quality. This uncertainty is compounded by the fact that ClientEarth has said the new strategy ‘falls short’ on the basis that it lacks detail about dealing with traffic measures in particular.

Air quality is fast becoming a more visible political issue and it has important effects not just on health (the Great Smog of London is estimated to have cost 8,000-12,000 lives) but the economy and, according to a recent study, crime (the crime rate is 8.4% higher on the most polluted days in London).

The new strategy aims to lead to a 50% reduction in the number of people living in locations where concentrations of particulate matter are above the WHO guideline limit but without further details, it is not clear how this can be achieved or how the strategy will fare in the courts once finalised.

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