Care4Air: A Clearer Future Conference 17 September 2009 Securing Air Quality Funding through Planning Obligations: Mid Devon formula Simon Newcombe Lead Officer - Environmental Protection Mid Devon District Council

Care4Air: A Clearer Future Conference 17 September 2009 Mid Devon Air Quality – A Problem? Mid Devon covers a large rural area with a relatively low (but growing) population of 76k people Air quality is largely good across the district, however we have two AQMAs (Crediton – 2004 and Cullompton – 2007) Historic market towns with med-high volume of congested traffic on main routes combined with street canyons and residential properties close to the kerb Relatively large development pressures for new housing and commercial development = growing population and increasing air quality issues

Care4Air: A Clearer Future Conference 17 September 2009 Developing Air Quality Policy and Funding Formula Decision made in 2005 to develop a robust policy on air quality and development control Identified the need for a consistent criteria for judging air quality constraints/impacts in relation to new development and a transparent, effective mechanism to secure mitigation measures/funding Early engagement and consultation with our Forward Strategic Planners vital as part of the emerging Local Development Framework (LDF) Partnership approach with opportunities to develop a new approach to air quality and development Delivery of new policy and funding formula via Core Strategy and Supplementary Planning Document (SPD)

Care4Air: A Clearer Future Conference 17 September 2009 The key policy ‘hooks’ and process Incorporated the requirement to draft new air quality policy and produce a Supplementary Planning Document (SPD) into the Crediton AQMA Action Plan (adopted 2006) Work started on incorporating air quality policy into the MDDC LDF Core Strategy following AQAP adoption Core Strategy is the key spatial planning policy document for the MDDC area up to Adopted in July 2007 following Planning Inspector Examination Evidence of district air quality issues and policy approach provided in a topic paper on ‘Transport & Air Quality’

Care4Air: A Clearer Future Conference 17 September 2009 MDDC LDF Core Strategy (2007) Air Quality: Vision Policies COR1, 14 and 15 The planning inspector stated: “there is a serious air quality problem (in Crediton)…the approach of the Core Strategy to give weight to this concern and explore developer contributions, through policy COR15 (f) and (g) is the appropriate way forward.” m?articleid=2605

Care4Air: A Clearer Future Conference 17 September 2009 Developing the SPD Formula Funding formula guided by the following principles: - Be a unique formula devised in-house (due to lack of national guidance and other examples) - Focus on delivery of Crediton AQMA Action Plan measures but should also provide an approach which can be applied in other circumstances e.g. major developments outside of an AQMA and the emerging Cullompton AQAP - Provide a simple, fixed contribution rate per development unit (i.e. per residential property or 100m 2 commercial development) over a ten-year period where development rates could reasonably be predicted (LDF Core Strategy) - Be transparent and proportionate (higher polluting developments would pay more on the basis of higher traffic trip generation rates) - Provide 50% of known Action Plan costs (other funding identified e.g. LTP) - Not be a ‘licence to pollute’ (larger developments still required to complete air quality impact assessments and specify mitigation measures where required) - Would apply to all relevant development types within Crediton and its catchment (as defined by existing planning documents) via s106 or other planning obligation 12-month development and consultation period and SPD including formula adopted in May 2008

Care4Air: A Clearer Future Conference 17 September 2009 MDDC Formula - Details Calculates a standard charge for following developments - Market housing (1 bed) - Market housing (>1 bed) - Affordable housing - Employment - Retail – food - Retail – non-food Contributions spread across the anticipated development rates in the Crediton catchment (as set out in the Core Strategy) for a ten-year period ( ) Crediton catchment means Crediton town and adjacent parishes (well established for strategic planning purposes) Provides for up to 50% of the AQAP implementation costs (calculated in the range £ million)

Care4Air: A Clearer Future Conference 17 September 2009 MDDC Formula – Details cont… Formula (completed for both the low cost estimate of £2.6m and the high cost estimate of £5.1m): (a)Calculation of number vehicle trips generated by new development Calculation below completed for each relevant development type category. Total no. development units over 10-year period ( ) by type x Vehicle trips generated per development unit (TRICS) x Viability unit (factor based upon ability to contribute) = Total trips requiring payment by development type over 10-year period (b) Calculation of total number of vehicle trips requiring payment (all development types) Sum of (a) for each development type category

Care4Air: A Clearer Future Conference 17 September 2009 MDDC Formula – Details cont… Formula: (c) Calculation of overall contribution per development type Calculation below completed for each relevant development type category (b) / (a) x 2.62m (low cost estimate) and (b) / (a) x 5.15m (high cost estimate) (d) Calculation of overall standard charge per unit of development by type (c) / total number of development units (low cost estimate) and (c) / total number of development units (high cost estimate)

Care4Air: A Clearer Future Conference 17 September 2009 MDDC Formula – Example Formula example for Retail non-food development (high-cost estimate): No. units Trip generation per day/unit 2 Viability Index Total vehicle trips Total vehicle trips requiring payment Cost (£) 3 Cost per unit (£) unit = 100 square metres gross floor area (GFA) 2 average vehicle trips per day based in national TRICS database 3 calculated by dividing total trips requiring payment (for the development type) by the overall total trips requiring payment for all development types (8837 vehicle trips per day including the total for retail non-food) then multiplying by the 50% high-cost AQAP implementation cost of £5.15m

Care4Air: A Clearer Future Conference 17 September 2009 The formula result (Crediton AQMA) UseViability Factor Cost Range (£)Unit Market Housing (1 bed) per dwelling Market Housing (>1 bed) per dwelling Affordable Housing00per dwelling Employment m 2 GFA Retail – food m 2 GFA Retail – non-food m 2 GFA

Care4Air: A Clearer Future Conference 17 September 2009 A few (more) final points… Successful in obtaining £1.2-2m contributions from Tesco and almost £100,000 in other contributions since 2008 Use the Crediton formula for other circumstances - Emerging Cullompton AQAP - For major development outside our AQMAs (especially where a pro-rata contributions required for different development types/phases/applications) Looking at applying/updating the SPD and formula in new policy developments e.g. Community Infrastructure Levy (CIL) MDDC pilot authority for LESDP – project to incorporate a joint assessment of climate change impact, low carbon technology and low emission strategy potential for residential development allocation sites in our emerging Development Plan Document (DPD)

Care4Air: A Clearer Future Conference 17 September 2009 A legal challenge In early 2008 our planning officers refused permission for a commercial development in Crediton (refusal grounds not air quality) Applicant appealed and MDDC decision over-turned by planning inspector in January 2009 On granting permission the inspector removed MDDC requirement on developer to provide air quality contribution in accordance with SPD adopted since original application Inspector stated ”…I am not persuaded that the proposed (air quality action plan) measure would have a direct impact on traffic using the appeal site. Imposing a condition…in this instance would also be contrary to guidance in (planning) Circular 11/95…I have not, therefore, imposed a condition requiring such a contribution.” Obviously a concern to MDDC and we sought a legal challenge to the inspectors decision following legal advice

Care4Air: A Clearer Future Conference 17 September 2009 A legal challenge cont… MDDC legal challenge to decision at the High Court of Justice (Defendants were (1) Secretary of State (2) Applicant/Developer) under s288 of TCPA Decision in June 2009 and Judge found that the appeal decision should be quashed on three grounds (1) On basis that the Inspector failed lawfully to discharge his duty under s79(1) of TCPA 1990 (2)In refusing to impose a condition (to contribute towards a specific action plan measure), the Inspector failed to adequately take into account the MDDC Statement of Case and/or SPD (3)The inspector misdirected himself as to the meaning of the MDDC SPD In his reasoning, the Judge upheld the principle of the MDDC policy and SPD (and formula contained therein) and highlighted para. 40 of the planning Circular 11/95 Full details see MDDC vs (1) SoS and Reliant BC Ltd June 2009 (CO/1557/2009)

Care4Air: A Clearer Future Conference 17 September 2009 Further Information Simon Newcombe T: E: Related planning document including Planning Inspectors Core Strategy Examination Report, SPD adoption statement etc available at: articleid= Air_Quality_SPD.pdf