Councils and air quality: a legal perspective

From housing to schools, local authorities have air quality pressures on various fronts. Geldards LLP partner Tiffany Cloynes, and senior associate lawyer Clare Hardy, discuss what councils can do to stay ahead of the curve.

Representatives of the Royal College of Paediatrics and the Royal College of Physicians have called for local authorities to be given more powers to tackle indoor air pollution. 

This comes in the light of a report from those two bodies which has shown the impact that indoor air pollution can have on childhood health problems, such as asthma, conjunctivitis, dermatitis and eczema.  The report recommended:

• The government and local authorities should advise the public on the risks of poor air quality and ways of preventing this.
• Local authorities should have powers to require improvements where air quality fails to meet minimum standards in local authority controlled schools and wherever children live.
• Building regulations should be revised, including setting legally binding performance standards for indoor air quality, imposing air quality tests once construction is complete and before a building is signed off, and compliance tests after stages of construction and assessment of buildings once they are occupied.
• Local authorities should follow the recommendations in the NICE guidelines for indoor air quality.
• Local authorities should include indoor air in air quality plans.
• Local authorities should update existing instruments to include more comprehensive and periodically updated evidence on a wider range of indoor pollutants.
• Local authorities should provide more support for environmental health officers.
• Local authorities should offer indoor air quality testing for their residents.
• Local authorities should establish a process or portal where residents can report potential problems with indoor air quality and can access services.
• The government should establish a national fund to provide support to help low income families make improvements to their housing to improve air quality.

The report recognises that some of its recommendations would have resource implications for local authorities.  In some instances, the potential difficulties may not just be about resources. 

There may also be complications because of the way that local authorities and other organisations work and the way that services are delivered. 

For example, in England many schools in England are academies or free schools and local authorities are not involved in running them in the way that they would have been involved in schools provided by the local authorities themselves. 

They will therefore need to consider how they can influence the approach to air quality by the providers of such schools.

If local authorities are able to find resources and address any practical issues, increased powers and responsibilities relating to air quality could help them to meet other obligations and provide effective services to their communities. 

For example, local authorities have a duty to contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient primary education and secondary education are available to meet the needs of the population of their area. 

Increasing their ability to address factors, such as air quality, which affect the ability of people to benefit from education could help local authorities to discharge this duty effectively.  In Wales, powers relating to air quality may help local authorities to meet their duty under the Well-being of Future Generations (Wales) Act 2015 to carry out sustainable development, particularly if they have set well-being objectives with a focus on air quality.

Air quality may also be a relevant factor for local authorities to consider when taking decisions on various matters.  When a local authority considers an application for planning permission, the National Planning Policy Framework recognises the need for planning policies to take into account the presence of air quality management areas and the cumulative impacts on air quality from individual sites in local areas. 

It also recognises the need for planning decisions to ensure that any new development in air quality management areas is consistent with the local air quality plan.  If an application for planning permission requires an environmental impact assessment under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, the risk to human health caused by air pollution is a characteristic which will be taken into account.

It will be interesting to see whether the report from the Royal College of Paediatrics and the Royal College of Physicians leads to legislative change or availability of funding. Increased responsibilities would have an impact on the resources of local authorities which are already subject to many pressures but increased powers could help them to function effectively.