February 24, 2016 by combehavendefenders
A new legal challenge has been launched by a local resident against Hastings Borough Council for granting planning permission for the Queensway Gateway road (QGR). The challenge claims that the planning permission was granted unlawfully, and asks the High Court to order that it be quashed.
The story so far…
The QGR has been hanging around for some time – here’s the history of what’s happened with it to date:
February 2015: planning permission is passed for the QGR after ten minutes ‘debate‘ in the planning committee. The vote is unanimous.
June 2015: Hastings Borough Council (HBC) is forced to revoke planning permission after a legal challenge showed that the road would create unlawful air pollution in a number of nearby homes.
November 2015: Road developer SeaChange Sussex submits new traffic and air pollution documents, which claim that ‘methodological errors’ in the original application meant that the amount of traffic – and hence air pollution – was overestimated. They had now redone the calculations and – conveniently – the air pollution levels were now fractionally below the unlawful levels.
December 2015: planning permission granted once again. Over 800 objections had been received and over a hundred people turned out on a wet night to see democracy in action. This time there was slightly more debate, and three councillors voted against the road.
The new legal challenge claims that – manipulation of traffic figures notwithstanding – the road would still produce unlawful levels of air pollution at ‘residential receptors’ (homes).
One of the legal errors by HBC relates to what are called ’emissions factors’: these are figures released by the Department for Food, Environment and Rural Affairs (Defra) which are used to calculate emissions connected with various activities – in this case, the amount of nitrogen oxides (NOx) emitted by vehicles. Defra’s figures show a year-on-year decrease in NOx, based on supposed improvements which will make cars cleaner in the future. Thus using emissions factors from later years will inevitably lead to lower figures for air pollution – but in reality, those supposed lower emissions simply haven’t materialised (see below) and in fact ‘real world’ (as opposed to modelled) pollution is looking much worse than predicted.
2013 factors used in the original application
In the original planning application, 2013 emissions factors were used – even though they could have used factors from later years as the QGR was not predicted to be operational until 2015/16. However, as the environmental statement said:
‘A disparity between the national road transport emission projections and measured annual mean concentrations of nitrogen oxides and NO2 has been identified in recent years. Whilst projections suggest that both annual mean nitrogen oxides and nitrogen dioxide concentrations from road traffic emissions should have fallen by around 15-25% over the past 6 to 8 years, at many monitoring sites levels have remained relatively stable, or have even shown a slight increase. Whilst monitoring …shows a slight overall reduction in concentrations since 2009, the fact that concentrations have not fallen as rapidly as was previously anticipated means that a conservative approach needs to be adopted regarding future air quality predictions.’ (emphasis added)
In other words, the authors of the report decided to adopt a conservative approach: real world emissions were not going down as fast as they had been predicted to (or indeed, at all) so using 2013 factors would mean that the figures were likely to be more accurate.
However, using these figures unfortunately caused the NOx levels associated with the road to breach national and EU limits. In June 2015, HBC and SeaChange conceded that they had not taken into account air quality policy and HBC agreed to revoke the planning permission. Back to the drawing board.
2016 factors used in the revised application
In the updated air quality assessment, 2016 emissions factors were used rather than 2013 factors, leading to a theoretical reduction in the predicted levels of air pollution. Even so, predicted levels at one home were extremely close to the upper limit (39.4μg/m3, with the upper limit being 40μg/m3) and would have exceeded the limit had the – more realistic – 2013 factors been used.
Sleight of hand not explained to committee
This sleight of hand was not explained to the Planning Committee, and the council’s consultant led the committee to believe that the predicted air pollution had come down in the new report simply because the traffic figures had been revised. Speaking to the committee during the planning meeting, the planning consultant said:
‘You will see in the report there have been some changes in the estimates of traffic generation associated with the new road. These have knock-on implications for air quality issues for both human and ecological receptors.’
2016 modelling more accurate?
The consultant made no mention whatsoever in her oral report of the use of 2016 – rather than 2013 – emissions factors, which were the key reason why SeaChange could now claim that the levels of air pollution were not unlawful. In her written report to the committee, she does mention the use of 2016 emissions factors – but far from explaining the problems with Defra’s assumption that NOx levels will come down year on year, she actually suggests that using the 2016 factors is more accurate:
‘[The updated environmental assessment] notes that as well as the previously mentioned changes in traffic generation estimates, the assessment also uses updated Emissions Factors of major pollutants for the modelling. This uses the most up to date DEFRA values emissions for 2016. It is expected that as time moves on, vehicles will emit lower levels of pollutants, due to changes in technology.’
The updated environmental assessment in fact modelled emissions using 2014 as well as 2016 factors: this showed that the QGR would have a ‘substantial adverse’ effect in terms of NOx pollution at three properties. This was not reported to the committee in the planning meeting – they were simply told about the 2016 factor modelling.
Cleaner air to come…
Insofar as emissions factors were mentioned at all in the planning committee meeting, it was to suggest – contrary to all the evidence – that in future years, emissions were set to improve. An air quality expert from environmental consultants ACCON told the committee that:
‘Now the future year that has been chosen for this development is 2016, well clearly with the best will in the world the road won’t be open in 2016, which means that emissions should be still lower in future years because you’ve got cleaner technology coming forward, newer vehicles, putting aside the VW, so the predication that’s been carried out by the applicant is on the basis of 2016, taking account of everything that is known about traffic and movements around the area. So it’s my belief that because emissions will get better because there’s different classes of vehicle coming forward, and that includes the heavy good vehicles as well and what’s called the Euro 5 and Euro 6 cars, emissions will get better, so worst case is the day of opening of the road, assuming it attracts all the vehicles that they envisage, after that, with emissions generally coming down so will the overall pollution levels at individual receptor locations.’ (emphasis added)
Labouring the point doesn’t really begin to describe this speech; it was clearly meant to give the planning committee the idea that air pollution was not something they needed to worry about.
Worst case scenario not worst case
So the committee were led to believe that things could only get better: the figures they were faced with – which showed that the pollution levels would be fractionally under the unlawful level – were a worst case scenario. This was entirely misleading: as shown above, the expected reduction in ‘real world’ emissions is not materialising – in some cases, pollution is actually getting worse year on year.
Don’t worry about the VW scandal
In addition, the committee was told by the ACCON consultant that the recent VW emissions scandal would not have any significant effect on levels of air pollution:
‘…of course VW was about cheating the emissions test which is actually different to what the levels will be at the end of a pipe when they’re moving along roads. So we’re not in a position to say they will be x amount higher, but on the basis of how much of the vehicle fleet is made up of VWs – I believe the figure is somewhere in the region of 4%- I wouldn’t envisage that the predictions would go up to such an extent that the air quality limit values would be exceeded at sensitive human receptors.’
Arguably, this is entirely wrong: the cheating that VW and other car makers were doing meant that many cars are emitting up to forty times the permitted levels of nitrogen oxides. Even if only 4% of cars on British roads are affected, the fact that they are emitting vastly more pollutants than previously thought is likely to tip the (already almost at the unlawful point, even using 2016 emissions factors) levels over the limit.
The council’s written report to the planning committee concluded by saying that:
‘On balance, and assuming 2016 emission factors and background concentrations, the effect of the QGR on local human health receptors is assessed as being not significant’.
Perhaps not significant to council officers and consultants, but quite possibly very significant to the people who live in the houses which will be subject to unlawful levels of air pollution if this road is ever allowed to be built.