Gestation Of An Elephant: Plan Making

Keith Hill, then housing and planning minister, once described the process to Royal Assent of what became the Planning and Compulsory Purchase Act 2004 as “the gestation of an elephant”. It took 17 months. Given that the average gestation period for an Asian elephant is 18 to 22 months he wasn’t far off.

However, he would have been more accurate using the metaphor in relation to the local plan examination processes that were conceived by way of the Act. Lichfields’ January 2019 statistical report Planned up and be counted: Local Plan-making since the NPPF 2012 concludes that the average examination length under the 2012 NPPF has been 18 months.

My 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism attempted to go into some of the reasons for that.

15 years on from the 2004 Act, it is interesting to set what the aspirations of the Government of the time were, as against some examples of current examination processes up and down the country.

Barbara Roche in the House of Commons on 17 December 2002, introducing the Bill for a second reading:

We want to make the system fairer, faster and more predictable and to bring to planning clarity, certainty and more strategic direction.”

Lord Rooker in the House of Lords 6 January 2004:

“…the Bill sets out a reform planning system for this new century that will help us to deliver sustainable communities faster and more fairly—it is no good being faster unless it is fairer.”

What will the Bill do? It simplifies the plan-led process by abolishing the middle tier of planning—the structure plans—that exists in some areas; that is to say, areas where there are county councils and two-tier local government. The new system will have two linked levels of planning: regional spatial strategies and local development frameworks. The local development frameworks will be made up each of a set of local development documents, which each authority will be required to prepare. Together, these documents will replace local plans and unitary development plans. They will set out development proposals and have a clear map so that everyone can see what goes where.”

The Conservative peer Lord Hanningfield in response:

In introducing the legislation, the Minister pointed out that the Government seek to make the planning system simpler and quicker, aims which we support. However, we believe that the proposals risk achieving the opposite outcomes. This legislation will unleash regional spatial strategies, local development schemes, local development frameworks, local development documents, action area plans, simplified planning zones and statements of community involvement. How will all these plans and schemes, with their different timetables, consultations, inspections and appeals, make the system more transparent or streamlined? This level of complexity and fragmentation will accelerate public disenchantment with the system. It will lead to uncertainty, delay and planning by appeal.”

Looking back at the scrutiny of the Bill in Public Bill Committee on 23 October 2003 for instance, Geoffrey Clifton-Brown, then shadow spokesman for Communities and Local Government, responding to planning and housing minister Keith Hill, also pretty much called it right (but it was what we all said at the time):

I accept a lot of what the Minister said in his long speech about the deficiencies in the existing system, such as the inflexibility as well as the time and difficulty in getting a revision due to the need to revise the whole plan. We feel that the existing system with amendments could have been made to work and that tearing it up and replacing it with a highly complicated new system will make a paradise for lawyers. We will see judicial reviews and all manner of case law created as a result of the Bill, which will add to the delay that it will bring.”

I accept absolutely, however, what the Minister said about the existing system being inadequate, in that it is too slow and that 31 authorities do not have a plan in place. The Committee will not be surprised to learn that a number of practitioners and large developers who use the planning system have been through my offices in the last few weeks. The one thing they all say is, ”For goodness’ sake, we hope that this new system is going to be quicker and clearer, but we don’t think it is.” The test of time will prove that, but we need to ensure that the system will operate.”

Time will tell whether that new system works, but I have a new acronym— CHAOS, which stands for ”Can Hill’s Alternative Objectives Succeed?” I submit that they will not.”

Nothing is black and white in planning. It is not that there is chaos, but, guess what, the system is no quicker or clearer. We no longer have lengthy adversarial local plan inquiries but we are seeing increasingly lawyer-heavy local plan examinations (cross-examination having been replaced by duelling legal opinions), that can turn into utter sagas of successive rounds of inspectors’ preliminary findings, further work, further consultation and rescheduled hearing sessions. Outcomes are unpredictable. There is a lack of statistical transparency across the piece as to how the system is performing.

It took 28 months from submission of the Cambridge and South Cambridgeshire local plans for examination on 28 April 2014 to publication of the inspectors’ final report on 3 September 2018. Is that a record?

If so, it won’t be for long. From those plan examinations that I am immediately aware of:

Welwyn Hatfield will soon overtake that. Its plan was submitted for examination on 15 May 2017. During the course of the hearing sessions, the inspector was not satisfied that the council had allocated sufficient housing sites and the council embarked on a further call for green belt sites for possible release but misjudged how long the process would take, or simply failed to manage the process properly, leading the inspector to issue his 8 August 2019 letter to the council. You can sense the frustration in his tone. There is now no likelihood that the examination will be completed by May 2020, as the council had suggested back in March. If the council is not able to revise the timetable, “putting forward realistic time periods and milestones for the conclusion of all the outstanding tasks, including the hearings…or slippage continues to occur [beyond April 2020] then I think we should consider the option of you withdrawing the plan with a view to re-submitting it for Examination when the work is finally completed and there are no obvious soundness issues accompanying it”.

The North Essex Authorities section 1 local plan will run and run. The plan was submitted for examination on 9 October 2017. The inspector was not satisfied with the sustainability appraisal work underpinning identification of three new garden cities and raised concerns as to soundness in his 8 June 2018 letter. He gave the options of removing the garden cities from the plan on the basis of a commitment to an early review, or doing further working and undertaking further consultation. The authorities chose the latter course. Consultation starts on Monday until 30 September 2019 before further hearing sessions are then arranged, according to the inspector’s August 2019 update.

The Windsor and Maidenhead local plan was submitted for examination on 31 January 2018. The council has had to do various strands of further work since the stage 1 hearings which took place last year. Another frustrated inspector – her letter dated 21 June 2019 presses the council for “as much detail as possible” as to the likely implications for the plan of each strand and the number and nature of changes that it is likely to propose:

In making this assessment, please consider whether continuing with the examination of the submitted Plan is the most prudent course of action in light of the work you are doing and of the potential issues reported in our previous correspondence. If you remain of the view that the examination should continue, please set out clearly the steps necessary before hearings can resume along with a realistic timetable for the process. I would also ask you to consider whether a procedural hearing might be a useful means of clarifying the process for all parties and, if so, when it could take place.”

The St Albans local plan was submitted to the Secretary of State for examination in March 2019, following the failure of the previously submitted plan on the basis of the inspector finding that the duty to cooperate had not complied with. The hearing sessions were due to begin in October 2019 but already the examination has run into the sand. The council responded in detail on 31 July 2019 to initial questions from the inspectors. When I say “in detail”, their response as to its approach to proposed green belt releases runs to over 70 pages (an explanation that should surely have been available when the plan was initially submitted). The council has now confirmed that the stage hearing sessions will not be taking place until January and February 2020.

The York local plan was submitted for examination in May 2018, following years of delay and political disagreements. 15 months on, there is no sign of any hearing sessions. Consultation closed on 22 July 2019 in relation to a proposed revised housing need figure and other documents as well as a number of proposed consequent modifications to the plan.

And so it goes on. The North Warwickshire local plan was submitted for examination in March 2018. The inspector’s letter dated 24 June 2019 following the hearing sessions sets out various unresolved issues, the main one being the plan’s reliance on a HIF funding bid of around £58m which has not yet been awarded. The inspector puts forward three possible options for the council and recommends that in the first instance the council pursues option (a), which “may mean suspending the examination for a short period”:

a. await the outcome of the HIF bid and unambiguously identify the likely source(s) of funding for the dualling of the A5; or

b. put forward alternative sites that do not rely on highways improvements for which funding is not certain or unknown; or

c. withdraw the plan

The inspectors’ approach with the West of England joint spatial plan (submitted for examination in April 2018) – to recommend, after the first hearing sessions, withdrawal of the plan, in their letter dated 1 August 2019 – was perhaps a more realistically decisive response than the make-do-and-mend pragmatism that is leading time and time again to these prolonged examination processes, although equally unsatisfactory for the participants. They will provide more detailed reasoning later this month, but the inspectors have a series of concerns as to how the “strategic development locations” in the plan were selected against reasonable alternatives. They question whether further work could be carried out “with the necessary objectivity, rather than being an exercise to justify a predetermined spatial strategy.

It would obviously be better for all concerned if work is done to the necessary standard before plans are submitted. Why isn’t it? The problems can’t all be laid at the door of the 2012 NPPF and the uncertainties arising from the 2012 system of assessing housing need. Or of the prescriptive requirements of strategic environmental assessment.

Is it a lack of guidance, too many fudged compromises pre-examination or simply a system that is not fit for purpose?

Or, to mix mammalian metaphors, is it that, if the system was an elephant, perhaps now it is a camel? For example, crucial components of the 2004 brave new world were (1) the setting of numbers by way of regional spatial strategies (a process that proved slow and difficult, with little public appetite for directly elected regional assemblies), abolished once the coalition government took control in 2010, and (2) the concept that the local development scheme would comprise a variety of development plan documents, being updated at different times, but now encouraged to be bundled back together as local plans and thereby as cumbersome as the complex documents the 2004 system sought to replace. Tinkering has not necessarily improved.

An elephant would never forget the meandering way in which we ended up with our present planning system.

One hump or two?

Simon Ricketts, 17 August 2019

Personal views, et cetera

Pic courtesy of Wikipedia

The Big CC

I’m on holiday and it’s hot. There was going to be no blog post this week.

But the hotel room world news channels were covering the latest IPCC report, published on Thursday, and I realised I needed to join some dots for myself on climate change. So here is another blog post after all, before I lose the thread again.

I’m no expert but I hope the links at least are helpful. Many of you will know all this and more, and will find my summarising simplistic. I have tried to remain factual, or at least evidence-based, but there is inevitably some subjectivity in selecting passages to quote from long reports.

Some preliminary thoughts:

⁃ Allowing average global temperatures to rise more than 1.5 degrees C above pre-industrial levels is not a sensible option. The implications have now been mapped out to a high level of scientific certainty.

⁃ Through an unprecedented amount of international effort, ground work has been done to work out how temperature rises can be contained. But achieving international consensus is slow, lagging behind the science, and given the absence, pretty much, of any international supervisory regime, it is

now for each country to work out how, and whether it wants, to play its part.

⁃ It is not that successive UK governments have done nothing. But have they done enough? How best do we move forward at the right pace, potentially no longer in coordination with our nearest trading partners (in the way that many measures to date have been) and given that this Government, and governments to come, are focused on Brexit and its practical and economic implications?

⁃ Business will not be as usual, but if we get it right, many outcomes will be beneficial in any event – more pleasant places to live, healthier lifestyles.

⁃ The challenge will inevitably increasingly influence much of national policy-making as well as our funding and taxation regimes – the only arguments are about how hard and how fast the measures should be. If we are not very careful, those arguments will become increasingly entrenched and politicised.

⁃ Much of our approach to infrastructure and planning will be affected.

⁃ All of this will help to define what it means to be a planning lawyer for the rest of my career.

Think Global

Some important stepping stones.

Creation of the IPCC, 1988

The Intergovernmental Panel on Climate Change was established in 1988 by the World Meteorological Organisation and United Nations Environment Programme. As set out in its principles:

The role of the IPCC is to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation. IPCC reports should be neutral with respect to policy, although they may need to deal objectively with scientific, technical and socio-economic factors relevant to the application of particular policies.”

The IPCC does not carry out its own original research but bases its extremely detailed assessment reports (of which there now have been five, as well as a special report last year which I’ll come to in a moment) on peer-reviewed analysis, by thousands of scientists, working on a voluntary basis, of published scientific literature.

The IPCC has proved essential to climate change thinking, where the science is liable be hijacked by those with their own agendas.

Rio, 1992

The United Nations Framework Convention on Climate Change was adopted at the Rio Summit in 1992.

Article 2 sets out that the “ultimate objective” of the Convention is “to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent

dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”

Developed countries agreed that they would stabilise their greenhouse gas emissions at verified 1990 benchmark levels by 2000.

Kyoto, 1997

The Kyoto Protocol extended the scope of the Convention. Whilst negotiated in 1997, it did not come into force until 2005. Its parties, which included the UK and the EU, were committed to reducing emissions of six identified greenhouse gases from the 1990 benchmark in the initial commitment period of 2008 to 2012, each by an identified percentage, that for the UK being 12.5%.

Doha, 2012

An amendment to the Kyoto Protocol was adopted by a number of states, including the UK and EU, in 2012. It covers the second commitment period under the Kyoto Protocol, from 2013 to 2020, with commitments to more stringent reductions – 20% from 1990 levels for EU states.

Paris, 2016

The Paris agreement was negotiated in 2015 and signed by almost 200 participating countries in 2016.

For the first time there was a defined target in an international treaty, of holding global warming below 2 degrees above pre-industrial levels, despite there being a large amount of international consensus well before that this was an appropriate target (for example, this was an outcome of a 1996 Council of the European Union conference in Luxembourg, as well as 2009 and 2010 UN Copenhagen climate change conferences in Copenhagen and Cancún respectively). However, understanding of the science was moving on: the evidence in the IPCC’s Fifth Assessment Report, published in 2014, implied that 2 degrees might not be an adequate target.

The objectives of the agreement are set out in Article 2:

1. This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by:

(a) Holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;

(b) Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; and

(c) Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.

2. This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.”

Cutting and pasting from Wikipedia (I’m on holiday):

Under the Paris Agreement, each country must determine, plan, and regularly report on the contribution that it undertakes to mitigate global warming. No mechanism forces a country to set a specific target by a specific date, but each target should go beyond previously set targets. In June 2017, U.S. President Donald Trump announced his intention to withdraw the United States from the agreement. Under the agreement, the earliest effective date of withdrawal for the U.S. is November 2020, shortly before the end of President Trump’s current term. In practice, changes in United States policy that are contrary to the Paris Agreement have already been put in place.”

IPCC special report, October 2018

The sixth IPCC assessment report is not due until 2022, but as part of the Paris agreement negotiations the IPCC was requested to publish a special report on the impact of global warming of 1.5°C above pre-industrial levels . The evidence in the report sets out plainly the relative implications and likelihoods of a 1.5 or 2 degrees rise in global warming and the consequences, largely projected with a stated high degree of certainty. The evidence inevitably points to the need for the current Paris agreement cap of 2 degrees being reduced to a cap of 1.5 degrees – just a more ambitious longterm target of 1.5 degrees in the agreement.

Global warming is likely to reach 1.5°C between 2030 and 2052 if it continues to increase at the current rate. (high confidence).”

Climate-related risks for natural and human systems are higher for global warming of 1.5°C than at present, but lower than at 2°C (high confidence). These risks depend on the magnitude and rate of warming, geographic location, levels of development and vulnerability, and on the choices and implementation of adaptation and mitigation options (high confidence).”

Climate models project robust differences in regional climate characteristics between present-day and global warming of 1.5°C, and between 1.5°C and 2°C. These differences include increases in: mean temperature in most land and ocean regions (high confidence), hot extremes in most inhabited regions (high confidence), heavy precipitation in several regions (medium confidence), and the probability of drought and precipitation deficits in some regions (medium confidence).

By 2100, global mean sea level rise is projected to be around 0.1 metre lower with global warming of 1.5°C compared to 2°C (medium confidence). Sea level will continue to rise well beyond 2100 (high confidence), and the magnitude and rate of this rise depend on future emission pathways. A slower rate of sea level rise enables greater opportunities for adaptation in the human and ecological systems of small islands, low-lying coastal areas and deltas (medium confidence).

On land, impacts on biodiversity and ecosystems, including species loss and extinction, are projected to be lower at 1.5°C of global warming compared to 2°C. Limiting global warming to 1.5°C compared to 2°C is projected to lower the impacts on terrestrial, freshwater and coastal ecosystems and to retain more of their services to humans (high confidence).

Limiting global warming to 1.5°C compared to 2°C is projected to reduce increases in ocean temperature as well as associated increases in ocean acidity and decreases in ocean oxygen levels (high confidence). Consequently, limiting global warming to 1.5°C is projected to reduce risks to marine biodiversity, fisheries, and ecosystems, and their functions and services to humans, as illustrated by recent changes to Arctic sea ice and warm-water coral reef ecosystems (high confidence).

Climate-related risks to health, livelihoods, food security, water supply, human security, and economic growth are projected to increase with global warming of 1.5°C and increase further with 2°C.

Most adaptation needs will be lower for global warming of 1.5°C compared to 2°C (high confidence). There are a wide range of adaptation options that can reduce the risks of climate change (high confidence). There are limits to adaptation and adaptive capacity for some human and natural systems at global warming of 1.5°C, with associated losses (medium confidence). The number and availability of adaptation options vary by sector (medium confidence).”

IPCC special report, climate change and land, 8 August 2019

As part of the Paris agreement negotiations, the IPCC was also asked to prepare a special report on Climate Change, Desertification, Land Degradation, Sustainable Land Management, Food Security, and Greenhouse gas fluxes in Terrestrial Ecosystems”. Its report was published on 8 August 2019.

First of all, it sets out its findings as to the present position:

A1.1. People currently use one quarter to one third of land’s potential net primary production for food, feed, fibre, timber and energy. Land provides the basis for many other ecosystem functions and services, including cultural and regulating services, that are essential for humanity (high confidence). In one economic approach, the world’s terrestrial ecosystem services have been valued on an annual basis to be approximately equivalent to the annual global Gross Domestic Product (medium confidence). {1.1, 1.2, 3.2, 4.1, 5.1, 5.5, Figure SPM.1}

A1.2. Land is both a source and a sink of greenhouse gases (GHGs) and plays a key role in the exchange of energy, water and aerosols between the land surface and atmosphere. Land ecosystems and biodiversity are vulnerable to ongoing climate change and weather and climate extremes, to different extents. Sustainable land management can contribute to reducing the negative impacts of multiple stressors, including climate change, on ecosystems and societies (high confidence). {1.1, 1.2, 3.2, 4.1, 5.1, 5.5, Figure SPM.1}

A1.3. Data available since 1961 show that global population growth and changes in per capita consumption of food, feed, fibre, timber and energy have caused unprecedented rates of land and freshwater use (very high confidence) with agriculture currently accounting for ca. 70% of global fresh-water use (medium confidence). Expansion of areas under agriculture and forestry, including commercial production, and enhanced agriculture and forestry productivity have supported consumption and food availability for a growing population (high confidence). With large regional variation, these changes have contributed to increasing net GHG emissions (very high confidence), loss of natural ecosystems (e.g. forests, savannahs, natural grasslands and wetlands) and declining biodiversity (high confidence). {1.1, 1.3, 5.1, 5.5, Figure SPM.1}

A1.4. Data available since 1961 shows the per capita supply of vegetable oils and meat has more than doubled and the supply of food calories per capita has increased by about one third (high confidence). Currently, 25-30% of total food produced is lost or wasted (medium confidence). These factors are associated with additional GHG emissions (high confidence). Changes in consumption patterns have contributed to about 2 billion adults now being overweight or obese (high confidence). An estimated 821 million people are still undernourished (high confidence). {1.1, 1.3, 5.1, 5.5, Figure SPM.1}

A1.5. About a quarter of the Earth’s ice-free land area is subject to human-induced degradation (medium confidence). Soil erosion from agricultural fields is estimated to be currently 10 to 20 times (no tillage) to more than 100 times (conventional tillage) higher than the soil formation rate (medium confidence). Climate change exacerbates land degradation, particularly in low-lying coastal areas, river deltas, drylands and in permafrost areas (high confidence). Over the period 1961-2013, the annual area of drylands in drought has increased, on average by slightly more than 1% per year, with large inter-annual variability. In 2015, about 500 (380-620) million people lived within areas which experienced desertification between the 1980s and 2000s. The highest numbers of people affected are in South and East Asia, the circum Sahara region including North Africa, and the Middle East including the Arabian peninsula (low confidence). Other dryland regions have also experienced desertification. People living in already degraded or desertified areas are increasingly negatively affected by climate change (high confidence). {1.1, 1.2, 3.1, 3.2, 4.1, 4.2, 4.3, Figure SPM.1}

As to future risks:

Climate change creates additional stresses on land, exacerbating existing risks to livelihoods, biodiversity, human and ecosystem health, infrastructure, and food systems (high confidence). Increasing impacts on land are projected under all future GHG emission scenarios (high confidence). Some regions will face higher risks, while some regions will face risks previously not anticipated (high confidence). Cascading risks with impacts on multiple systems and sectors also vary across regions (high confidence). {2.2, 3.5, 4.2, 4.4, 4.7, 5.1, 5.2, 5.8, 6.1, 7.2, 7.3, Cross-Chapter Box 9 in Chapter 6, Figure SPM.2}”.

What can be done?

Sustainable land management, including sustainable forest management, can prevent and reduce land degradation, maintain land productivity, and sometimes reverse the adverse impacts of climate change on land degradation (very high confidence). It can also contribute to mitigation and adaptation (high confidence). Reducing and reversing land degradation, at scales from individual farms to entire watersheds, can provide cost effective, immediate, and long-term benefits to communities and support several Sustainable Development Goals (SDGs) with co-benefits for adaptation (very high confidence) and mitigation (high confidence). Even with implementation of sustainable land management, limits to adaptation can be exceeded in some situations (medium confidence). {1.3.2, 4.1.5, 4.8, Table 4.2}.

Response options throughout the food system, from production to consumption, including food loss and waste, can be deployed and scaled up to advance adaptation and mitigation (high confidence). The total technical mitigation potential from crop and livestock activities, and agroforestry is estimated as 2.3-9.6 GtCO2e.yr-1 by 2050 (medium confidence). The total technical mitigation potential of dietary changes is estimated as 0.7-8 GtCO2e.yr-1 by 2050 (medium confidence). {5.3, 5.5, 5.6}”

“Future land use depends, in part, on the desired climate outcome and the portfolio of response options deployed (high confidence). All assessed modelled pathways that limit warming to 1.5oC or well below 2°C require land-based mitigation and land-use change, with most including different combinations of reforestation, afforestation, reduced deforestation, and bioenergy (high confidence). A small number of modelled pathways achieve 1.5oC with reduced land conversion (high confidence) and, thus, reduced consequences for desertification, land degradation, and food security (medium confidence). {2.6, 6.4, 7.4, 7.6; Cross-Chapter Box 9 in Chapter 6; Figure SPM.4}.

Policies that operate across the food system, including those that reduce food loss and waste and influence dietary choices, enable more sustainable land-use management, enhanced food security and low emissions trajectories (high confidence). Such policies can contribute to climate change adaptation and mitigation, reduce land degradation, desertification and poverty as well as improve public health (high confidence). The adoption of sustainable land management and poverty eradication can be enabled by improving access to markets, securing land tenure, factoring environmental costs into food, making payments for ecosystem services, and enhancing local and community collective action (high confidence). {1.1.2, 1.2.1, 3.6.3, 4.7.1, 4.7.2, 4.8, 5.5, 6.4, 7.4.6, 7.6.5}.

“The effectiveness of decision-making and governance is enhanced by the involvement of local stakeholders (particularly those most vulnerable to climate change including indigenous peoples and local communities, women, and the poor and marginalised) in the selection, evaluation, implementation and monitoring of policy instruments for land- based climate change adaptation and mitigation (high confidence). Integration across sectors and scales increases the chance of maximising co-benefits and minimising trade-offs (medium confidence). {1.4, 3.1, 3.6, 3.7, 4.8, 4.9, 5.1.3, Box 5.1, 7.4, 7.6}.”

There is a third special report that remains to be published, on “The Ocean and Cryosphere in a Changing Climate”.

Act Local

So what of the UK, in this international context?

It is striking to read this 1989 speech by then prime minister Margaret Thatcher, with her expressed concerns as to the risks of climate change and support for the work of the nascent IPCC.

In 2005, then Chancellor Gordon Brown commissioned economist Nicholas Stern to carry out a Review on the Economics of Climate Change. Published in 2006, the review sets out the economic benefits of acting sooner rather than later in combatting climate change.

The Climate Change Act 2008 received Royal Assent in November 2008. From its explanatory notes, a summary of the mechanisms in the Act:

The Act sets up a framework for the UK to achieve its long-term goals of reducing greenhouse gas emissions and to ensure steps are taken towards adapting to the impact of climate change. Its main elements are as follows:

Setting emissions reduction targets in statute and carbon budgeting. The Act establishes an economically credible emissions reduction pathway to 2050 and beyond by putting into statute medium and long-term targets. In addition, the Act introduces a system of carbon budgeting which constrains the total amount of emissions in a given time period. Carbon budget periods will last five years, beginning with the period 2008–2012, and must be set three periods ahead. The Secretary of State is required to give indicative ranges for the net UK carbon account in each year of a budgetary period, to set a limit on use that can be made of international carbon credits in each budgetary period and to develop and report on his proposals and policies for meeting carbon budgets.

A new reporting framework. The Act provides for a system of annual reporting by the Government on the UK’s greenhouse gas emissions. The new Committee on Climate Change will have a specific role in reporting annually on progress, with the Government required to lay before Parliament a response to this progress report.

The creation of an independent advisory body. The Act creates a new independent body, “the Committee on Climate Change”, to advise the Government and devolved administrations on how to reduce emissions over time and across the economy and, on request, on any other matter relating to climate change, including adaptation to climate change. This expert body will advise on the optimum trajectory to 2050, the level of carbon budgets, and on how much effort should be made by the part of the economy covered by trading schemes and by the rest of the economy, as well as reporting on progress.

Trading scheme powers. The Act includes powers to enable the Government and the devolved administrations to introduce new domestic trading schemes to reduce emissions through secondary legislation. This increases the policy options which the Government could use to meet the medium and long-term targets in the Act.

Adaptation. The Act sets out a procedure for assessing the risks of the impact of climate change for the UK, and a requirement on the Government to develop an adaptation programme on matters for which it is responsible. The programme must contribute to sustainable development. The Act also gives powers to direct other bodies to prepare risk analyses and programmes of action, and advisory and progress-reporting functions to the Committee on Climate Change.

Policy measures which reduce emissions. The Act will be used to support emissions reductions through several specific policy measures: amendments to improve the operation of the Renewable Transport Fuel Obligations; a power to introduce charges for single use carrier bags; a power to pilot local authority incentive schemes to encourage household waste minimisation and recycling; amendments relating to the Certified Emissions Reductions Scheme; powers and duties relating to the reporting of emissions by companies and other persons; a duty to make annual reports on the efficiency and contribution to sustainability of buildings on the civil estate.”

Section 1(1) provided as follows:

It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline.”

That duty was formulated after intense debate, against the context of the global objective of an average mean temperature rise of no more than 2 degrees. A 60% target was originally proposed before the minimum 80% target was introduced. Section 30 provides that the target excludes include greenhouse gases from international aviation or international shipping “except as provided by regulations made by the Secretary of State.

Immediately following the October 2018 IPCC special report, the government commissioned a report from the Committee on Climate Change:

This advice will inform consideration of the UK’s long term targets, and should include options for the date by which the UK should achieve a) a net zero greenhouse gas target and/or b) a net zero carbon target in order to contribute to the global ambitions set out in the Paris Agreement, including whether now is the right time for the UK to set such a target. Your advice should also provide options for:

• the range which UK greenhouse gas emissions reductions would need to be within, against 1990 levels, by 2050 as an appropriate contribution to the global goal of limiting global warming to well below 2°C above pre-industrial levels, and

• the range which UK greenhouse gas emissions reductions would need to be within, against 1990 levels, by 2050 as an appropriate contribution towards global efforts to limit the increase to 1.5°C above pre-industrial levels.

Your report should provide evidence on:

• how reductions in line with your recommendations might be delivered in key sectors of the economy; and

• the expected costs and benefits across the spectrum of scenarios in comparison to the costs and benefits of meeting the current target.”

The CCC published its report Net Zero – The UK’s contribution to stopping global warming on 2 May 2019. It advised as follows:

The UK should legislate as soon as possible to reach net-zero greenhouse gas emissions by 2050. The target can be legislated as a 100% reduction in greenhouse gases (GHGs) from 1990 and should cover all sectors of the economy, including international aviation and shipping

The report’s key findings are that:

• The Committee on Climate Change recommends a new emissions target for the UK: net-zero greenhouse gases by 2050.

• In Scotland, we recommend a net-zero date of 2045, reflecting Scotland’s greater relative capacity to remove emissions than the UK as a whole.

• In Wales, we recommend a 95% reduction in greenhouse gases by 2050.

A net-zero GHG target for 2050 will deliver on the commitment that the UK made by signing the Paris Agreement. It is achievable with known technologies, alongside improvements in people’s lives, and within the expected economic cost that Parliament accepted when it legislated the existing 2050 target for an 80% reduction from 1990.

However, this is only possible if clear, stable and well-designed policies to reduce emissions further are introduced across the economy without delay. Current policy is insufficient for even the existing targets.”

The report sets out in some details the options available to meet the 80% or 100% reduction targets, categorising them as follows:

Core options are those low-cost low-regret options that make sense under most strategies to meet the current 80% 2050 target. They also broadly reflect the Government’s current level of ambition (but not necessarily policy commitment).

• Further Ambition options are more challenging and on current estimates are generally more expensive than the Core options.

• Speculative options currently have very low levels of technology readiness, very high costs, or significant barriers to public acceptability. It is very unlikely they would all become available.

The report then analyses various business sectors individually. I set out some selective passages from the document, focusing on identified potential delivery mechanisms, ie what we may well see in practice by way of legislative and policy changes in due course:

Power

We find that emissions from the UK’s electricity system can be reduced to almost zero whilst meeting increased electricity demands from the transport and heat sectors, potentially doubling the size of today’s electricity system. Our findings in part reflect new research on the impact of heat pumps and electric vehicles on the UK’s electricity system.

Reducing electricity emissions close to zero will require sustained and increased deployment of renewables and possibly nuclear power and the decarbonisation of back-up generation. Improvements in system flexibility – such as battery storage, interconnection and flexible demands – can help accommodate large volumes of variable renewables in the system at low cost. However some flexible power generation will continue to be required and will need to be decarbonised, probably via carbon capture and storage (CCS) and hydrogen.

Hydrogen (as either hydrogen or ammonia) can be used as a low-carbon fuel in the buildings, industrial, transport (including shipping) and power sectors. Producing hydrogen at low cost can be done with low emissions, by the development of advanced methane reformation facilities with CCS. Our hydrogen analysis draws mainly on our 2018 hydrogen report.”

(See also the subsequent Department for Business, Energy and Industrial Strategy announcement Innovative funding models and technologies to drive investment in new wave of low carbon energy (23 July 2019)).

Buildings

Near-full decarbonisation of heat for buildings is one of the biggest challenges in reducing emissions from the energy system to net zero by 2050. The policies put in place to drive the required changes will determine how the costs of this decarbonisation are allocated between consumers and taxpayers. Government must review the plan for the distribution of these costs as an early priority to ensure that the wider transition – for workers and energy bill payers – is perceived to be fair.

It is critical that measures to reduce emissions are not viewed in isolation. A holistic approach is required to deliver buildings which are low-carbon, thermally-efficient, better adapted to a changing climate, with safe moisture levels and excellent indoor air quality”.

Industry

The Government must urgently establish an overall framework to support long- term industrial decarbonisation, as committed to in the Government’s Clean Growth Strategy, if it is to enable decarbonisation towards the Committee’s recommended net-zero target. Delay will mean less decarbonisation of industry is possible or a greater role for scrapping assets.

‒ The design of the policy framework to reduce UK industry emissions must ensure it does not drive industry overseas, which would not help to reduce global emissions, and be damaging to the UK economy. This will require either consumers or taxpayers to bear much of the cost of decarbonisation of industrial subsectors or sites so long as they are at risk of carbon leakage.

‒ Policies should include a funding mechanism for industry decarbonisation, to support near-zero emission technologies, including use of hydrogen, electrification and CCS (including BECCS), a mechanism to support CO2 transport and storage infrastructure by the end of 2019, and support for energy and resource efficiency.

‒ CO2 transport and storage infrastructure should be operational in at least one industrial cluster by 2026 and available to all major industrial clusters soon afterwards, alongside hydrogen for all clusters where it is the best fuel-switching option for some sites. A network to provide hydrogen to industry outside the main industrial clusters should be established by 2035, or potentially slightly later if ‘hydrogen-ready’ appliances can be deployed in industry prior to this.

‒ By providing an attractive investment environment, including stable policy, the UK can become a leader in production of low-carbon goods, attract increased investment in new and existing industries, and develop new businesses and products. This should involve encouraging subsectors and technologies where the UK may have a competitive advantage.”

Transport

The following priority actions should be taken as soon as possible to support the transition to zero emission technologies across road transport:

‒ Commit to end the sale of conventional cars and vans by 2035, including ending the sale of hybrid and plug-in-hybrid vehicles. End the use of petrol and diesel vehicles (including hybrid and plug-in-hybrid vehicles) on UK roads by 2050.

‒ Announce plans for the continuation of financial incentives for electric vehicles, through a commitment to continued grant schemes or through greater differentiation in the tax system, e.g. vehicle excise duty (VED), VAT and fuel duty, which will still be required in the near-term to support the early market.

‒ Continue development of charging infrastructure provision, especially improving reliability of current provision and rolling out of chargers in towns and cities to provide for people without off-street parking.

‒ Trials of zero emission HGVs with associated infrastructure within the UK

Aviation and shipping

A mix of UK and international policies will be required to deliver the Further Ambition scenarios in ways that avoid perverse outcomes (e.g. carbon leakage).

‒ Both aviation and shipping will need to strengthen the current internationally agreed policies. Aviation should set a global long-term objective for emissions. Shipping should put in place a policy framework to deliver the agreed target for 2050. A more ambitious global target in shipping would be needed to deliver the technical potential that exists in the Further Ambition scenario.

‒ The Government should ensure their forthcoming Aviation Strategy and Clean Maritime Plan support innovation, research and deployment to ensure new technologies are brought to market in a timely fashion. The Aviation Strategy will also need to set out an approach to limiting growth in aviation demand. We will set out our recommended approach for aviation in follow-up advice to DfT later in 2019.”

Agriculture, land use, land-use change and forestry

The following actions should be taken to support deep emissions reduction in agriculture and the LULUCF sectors:

‒ Develop a post-Common Agricultural Policy (CAP) framework that incentivises the take- up of low-carbon farming practices and promotes transformational change in land use that rewards land owners and managers for deep emissions reduction and removals and delivering wider ecosystem benefits.

‒ Continued investment in R&D, testing and piloting of options to deliver agricultural productivity improvements and enhanced forest productivity. Develop low-carbon agricultural machinery and robotics with artificial intelligence.

‒ Provide support to help land managers transition to alternative land uses through skills, training and information. Along with financial support for alternative land uses with high up-front costs and long pay-back periods.

‒ Government should introduce consumer-focused policies to encourage healthier diets and reduce food waste more proactively. The public sector should take a strong lead for example, by providing plant-based and lower-meat options in schools and hospitals.”

Waste

The following priority actions should be taken as soon as possible to support the transition to zero emissions across waste management:

‒ Government and the DAs [devolved administrations] should legislate a mandatory ban on biodegradable waste from key waste streams going to landfill by 2025 at the latest. In order to achieve this, separate waste collection should be introduced by 2023 and supporting measures to increase municipal recycling rates to 70% by 2030 at the latest.

‒ Policies and measures should be introduced to achieve a 20% reduction in avoidable food waste by 2025 including more proactive waste avoidance measures.

‒ Government and the DAs should work with waste water companies to develop a strategy to reduce non-CO2 emissions from waste water handling by at least 20% by 2050.”

Theresa May acted on the CCC’s recommendation that the minimum 80% reduction figure in the 2008 Act be amended to 100% ie net zero greenhouse emissions by 2050, with an announcement on 12 June 2019 and the making of the Climate Change Act 2008 (2050 Target Amendment) Order 2019 on 26 June 2019.

The target still excludes greenhouse gases from international aviation or international shipping. There is this statement in the explanatory notes to the Order:

The Government recognises that international aviation and shipping have a crucial role to play in reaching net zero emissions globally. However, there is a need for further analysis and international engagement through the appropriate frameworks. For now, therefore, we will continue to leave headroom for emissions from international aviation and shipping in carbon budgets to ensure that emissions reduction strategies for international aviation and shipping can be developed within International Maritime Organisation and International Civil Aviation Organisation frameworks at the appropriate pace, and so that the UK can remain on the right trajectory for net zero greenhouse gas emissions across the whole economy.

Finally, the CCC has reacted (8 August 2019), to the IPCC’s land use and climate change report, referring back to its November 2018 report Land use: Reducing emissions and preparing for climate change, which made the recommendation that “land use policy should promote transformational land uses and reward land- owners for public goods that deliver climate mitigation and adaptation objectives. New policies should also reflect better the value of the goods and services that land provides. The key measures that have clear, multiple benefits are: afforestation and forestry management; restoration of peatlands; low-carbon farming practices; improving soil and water quality; reducing flood risks and improving the condition of semi-natural habitats. These measures should be rewarded if they go beyond a minimum standard that land-owners should already be delivering.”

The net zero greenhouse gas emissions by 2050 target is of course, save in relation to international aviation and shipping, in line with the CCC’s recommendations but there has been intense lobbying for more stringent measures.

The Extinction Rebellion campaign group has three published aims:

1. “Government must tell the truth by declaring a climate and ecological emergency, working with other institutions to communicate the urgency for change.”

2. “Government must act now to halt biodiversity loss and reduce greenhouse gas emissions to net zero by 2025.

3. “Government must create and be led by the decisions of a Citizens’ Assembly on climate and ecological justice.”

Almost half the local authorities in the country have formally declared a “climate emergency.” The Campaign Against Change Change website has a list of authorities that have made a formal declaration and an indication of the contents of each declaration.

What do these declarations look like? Here is Cornwall’s, by way of example:

On the 22nd January 2019, a motion was passed by Cornwall Councillors to declare a climate emergency. The minutes of that meeting are available online for you to view. The motion resolved that the council would:

1. Declare a climate emergency

2. Call on Westminster to provide the powers and resources necessary to achieve the target for Cornwall to become carbon neutral by 2030 and commit to work with other Councils with similar ambitions

3. Provide adequate staff time and leadership to prepare a report within six months to establish how Cornwall can sufficiently reduce carbon emissions through energy and other Council Strategies, plans and contracts within a timescale which is consistent with an ambition to restrain Global Warming to 1.5oC. This will draw together the actions Cornwall Council is already and will continue to take; and where possible, outline partners’ commitments to move towards a carbon neutral Cornwall by 2030

No doubt we will be seeing statements such as these feed through into emerging policy. So what is it likely to mean for planning? The TCPA’s Planning for climate change: a guide for local authorities (May 2018) provides useful advice, but against the backdrop of the previous 80% reduction in net greenhouse gas emissions by 2050 target, not the new “net zero” target or the even more ambitious targets that these declarations would imply.

So, returning from holiday, plenty of practical questions:

1. What prospects for a new or amended international agreement reflecting a 1.5 degree target, particularly given the current stance of the US and others?

2. What will be the approach of Boris Johnson’s government, in its precarious, preoccupied, state, to the immediate challenges ahead?

3. What will be in the government’s aviation strategy, expected later this year?

4. How rapidly will business grasp some of the opportunities set out in some detail in the CCC’s May 2019 report and what will the government be doing to facilitate the necessary measures?

5. What will come of these local authority “climate emergency” declarations and to what extent will the Government seek to constrain individual authority stances, where they run contrary to other planning objectives?

Simon Ricketts, 10 August 2019

Personal views, et cetera

Bad Timing: More On Appropriate Assessment From Court & Govt Post POW

This is intended to be an update as to appropriate assessment under the Conservation of Habitats and Species Regulations 2017 rather than a blog post on the domestic effect of EU environmental law post-Brexit.

But I’ll address that briefly first:

EU environmental law post-Brexit

The position remains pretty much as summarised in my 18 September 2018 blog post Planning, Brexit, supplemented by my 22 December 2018 blog post The Office For Environmental Protection. Whilst there is a general initial saving for EU-derived domestic legislation and whilst section 16 of the EU (Withdrawal) Act 2018 sets a process for maintaining EU environmental principles, the “no deal” risks are still that:

(1) the latter depends on an Environment Bill being laid before Parliament and enacted (we so far have only seen draft provisions of the most directly relevant parts of what is proposed), a set of draft environmental principles being consulted upon and approved and the new Office for Environmental Protection being established, all before 31 October 2019 and

(2) post-Brexit, all EU-derived domestic legislation will be reviewed as to its continuing appropriateness and the degree of protection as regards this, presently provided by the environmental principles and governance mechanism in section 16, could easily be amended, replaced or sidestepped by this or a subsequent government.

DEFRA published an Environment Bill summer policy statement on 23 July 2019 but, whilst I am sure the war cabinet talks of little else, there simply is not the time available for the environmental principles and governance machinery to be up and running by the end of October 2019. Even when the machinery is established, it is susceptible to subsequent tinkering and dismantling by way of subsequent legislation.

Appropriate assessment

The immediate implications of the European Court of Justice’s ruling in People Over Wind were covered in my 20 April 2018 blog post EU Court Ruling: Ignore Mitigation Measures In Habitats Screening.

In England and Wales the main problems caused by the judgment have revolved around:

(1) authorities being caught out through no longer being able to screen out the need for appropriate assessment by relying upon commitments to introduce mitigation measures;

(2) until the February 2019 changes to the NPPF, the disapplication of the NPPF’s “tilted balance” where appropriate assessment is required.

MHCLG has now included within its Planning Practice Guidance a specific section dealing with appropriate assessment (22 July 2019).

By coincidence, two days after the new guidance was published, two separate judgments were handed down by the High Court on different aspects of the appropriate assessment regime, both cases stemming from People Over Wind issues and both cases examples of plain bad timing.

Gladman Developments Limited v Secretary of State (Dove J, 24 July 2019) was a challenge by Gladman to the dismissal by the Secretary of State of its appeal in respect of a proposed development of 225 dwellings in Cliffe Woods, Kent.

The inquiry had been held in November 2017, pre People Over Wind. The parties agreed that the tilted balance applied in favour of the proposal as there was a shortfall in the Medway Council’s five year housing land supply. The parties also agreed that a condition requiring an environmental construction management plan was sufficient to mitigate any ecological concerns. Following an HRA screening process that took into account a financial contribution towards a strategic access management and mitigation strategy (SAMMS) “no adverse consequences were identified in respect of the impact of any additional recreational pressures on the Thames Estuary Marshes SPA/RAMSAR and the Medway Estuaries and Marshes SPA/RAMSAR sites.”

The inspector recommended approval in his report dated 29 March 2018. The People Over Wind judgment was handed down on 12 April 2018. The Secretary of State invited representations from the parties as to whether appropriate assessment was now required in the light of the judgment, and on their views as to the correct application of planning policy in the light of it – a reference to paragraph 119 in the 2012 NPPF which disapplied the tilted balance in circumstances in the case of development requiring appropriate assessment.

Gladman submitted as part of its representations a report prepared by its ecologists, information to ensure that the inspector could carry out appropriate assessment and reach a conclusion that there were no likely significant effects on the integrity of of the SPAs. It also submitted that it would be “illogical and perverse to disengage the tilted balance in these circumstances”.

Before the Secretary of State reached his decision on the appeal, more generally on 26 October 2018 he embarked a technical consultation as to potential changes to the methodology for assessing local housing need and as part of that consultation he sought views on his proposal to amend the NPPF to make it clear that the tilted balance “is disapplied only where an appropriate assessment has concluded that there is no suitable mitigation strategy in place”, having missed the opportunity to make that change in the 24 July 2018 version (within which paragraph 177 simply replicated the old paragraph 119).

The Secretary of State’s decision letter was issued on 9 November 2018. He found that appropriate assessment was required and stated that on the basis of the appropriate assessment which he had carried out he could “safely conclude that the proposed development would not adversely affect the integrity of any European site”. He noted that under paragraph 177 of the 2018 NPPF “the presumption in favour of sustainable development does not apply where development requiring appropriate assessment is being determined”. He dismissed the appeal.

Gladman challenged the decision on a number of grounds, including irrationality in his application of paragraph 177 in the circumstances of the appeal, failure to have regard to the contents of the technical consultation, failure specifically to consult Gladman in relation to the technical consultation and contending that People Over Wind was wrongly decided, requiring a reference to the CJEU to clarify the position.

Dove J rejected all of the grounds. There was nothing unlawful in the way in which the Secretary of State had applied paragraph 177. It was “applied in a straight forward and uncomplicated manner to the circumstances of the present case”. The technical consultation was only a consultation. Indeed:

I see nothing wrong, and indeed much to commend, in an approach whereby a decision-taker continues to apply existing policy whilst it is subject to review, and await the outcome of a consultation process on the review of a policy before applying any new policy which might emerge. For a consultation exercise to be lawful it must be engaged in with an open mind. That must contemplate a number of potential outcomes from the consultation process, (including, potentially, no change to the policy) which could be undermined by the premature second guessing of its outcome through the application of a policy which was being consulted upon. In my view the First Defendant’s approach in applying his existing policy in the present case was in principle entirely correct.”

There was no basis for asserting that Gladman should have been specifically consulted as part of the technical consultation and in any event they had not been prejudiced by any failure to consult.

Lastly, he was unpersuaded that there was any justification for the reference sought to the CJEU or that People Over Wind was wrongly decided: “the need for full and precise analysis removing all reasonable scientific doubt, reflects a consistent line of authority in the CJEU emphasising these features of the requirements of the Habitats Directive…Whilst there may be cases in which the existence of significant effects could be addressed by the examination of mitigating measures at the Appropriate Assessment screening stage that is not, in principle, any justification for not undertaking the Appropriate Assessment itself.” Furthermore, as also relied upon by the CJEU in People Over Wind, “the taking account of mitigation measures and exclusion of the Appropriate Assessment process may also deprive the public of a right to participate in the decision-taking process.”

The final kick in the teeth for Gladman must have come when, after the 24 July 2018 version of the NPPF missed the obvious opportunity to resolve the widespread problems caused by People Over Wind, it was finally put right in the 19 February 2019 version. So if the decision letter had been issued either at least six weeks before the 12 April 2018 ruling in People Over Wind (such that the decision was beyond the legal challenge period) or after 19 February 2019, the chances are they would have had their permission. A Secretary of State who actually wanted to see housing would surely have sorted out the policy issue more quickly – or delayed the decision letter. Bad timing indeed.

The timing was similarly awkward in R (Wingfield) v Canterbury City Council & Redrow Homes South East (Lang J, 24 July 2019). Outline planning permission was obtained on 5 July 2017 for up to 250 dwellings and associated development at Hoplands Farm, Westbere, Kent. The site is near SPAs and an SAC. On the basis of mitigation proposals, Canterbury City Council concluded, having taken advice from Natural England, that appropriate assessment was not required.

The judicial review period expired without challenge and the site was sold to the interested party, Redrow Homes. Reserved matters approval was sought in December 2017 for the first phases of development. Then came that People Over Wind ruling on 12 April 2018. In the light of the judgment, the council carried out an appropriate assessment and concluded that, with mitigation, the project would have no adverse effect on the integrity of the European protected sites. Reserved matters approval was granted on 12 February 2019.

The claimants argued that “the Council acted in breach of EU law by failing to conduct an HRA before granting outline planning permission and impermissibly taking into account mitigation measures when screening the proposed development, contrary to the CJEU judgment in the People over Wind case. The effect of the judgment of the CJEU was to render the grant of outline planning permission a nullity, which could no longer be relied upon. Further or alternatively, when the Council realised its error, it should have revoked the outline planning permission and re-considered the application. Instead, it unlawfully conducted an HRA at the reserved matters stage, when it should have been conducted at the earliest possible stage, before the grant of outline planning permission.

Lang J rejected both arguments. The submission that “the effect of the judgment of the CJEU in People Over Wind was to render the grant of outline planning permission a nullity was both contrary to authority, and wrong in principle. A decision made by a public body is valid unless and until it is quashed”. Further, “the Council could lawfully conduct an appropriate assessment at the reserved matters stage, in the circumstances of this case”.

In considering whether the Council could legitimately remedy its earlier error by conducting an appropriate assessment at reserved matters stage, instead of revoking the grant of outline planning permission, I have taken into account that the consequences of revoking planning decisions long after they have been made, and the time limits for challenge have expired, are disruptive and undermine the principle of legal certainty. As Laws J. said in R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd [1998] Env LR 415, at [424], applicants for judicial review must act promptly, so as to ensure that the proper business of government and the reasonable interests of third parties are not overborne or unjustly prejudiced by litigation brought in circumstances where the point in question could have been exposed and adjudicated without unacceptable damage.

In this case, the IP acquired its interest in the Site after outline planning permission had been granted and the time for bringing a judicial review challenged had expired. Although building operations have not yet commenced, time and money has been spent in bringing this project to fruition. The Council considers that the development will bring tangible benefits to the community, although local residents, such as the Claimant, take a different view.

In my judgment, the Council’s decision to remedy its earlier error by conducting an appropriate assessment at reserved matters stage was permissible under EU and domestic law, and it was a proportionate and effective remedy for the breach of EU law […]

Alternatively if my analysis is not correct, I would nonetheless refuse relief in this case. The Court may refuse relief where there has been a breach of EU law, if the substance of the EU right has been complied with.”

The claimant also sought to argue that the HRA was deficient. It was not:

the HRA conducted by the Council was appropriate for the task in hand, particularly bearing in mind that the Council was able to draw upon the detailed research and assessment in the ‘Report to inform a Habitats Regulations Assessment’, as well as the further reports submitted by the IP. Its findings were complete, precise and definite and there were no significant lacunae. The Council was entitled to rely upon Natural England’s endorsement of its HRA, particularly since Natural England had initially raised concerns about the evidence-base provided by the applicants, and those concerns were addressed by the further evidence produced by the IP. Natural England, as the custodian of the Stodmarsh designated sites, was particularly well placed to judge the risks from the proposed development. In my view, the Claimant’s challenge did not come close to meeting the high threshold of Wednesbury irrationality; it was primarily a disagreement with the Council’s exercise of its planning judgment.”

So bad timing in this case for the claimant, unable to take advantage of the windfall that People Over Wind appeared to represent.

Even if we leave the EU, I suspect that we will not be leaving behind these sorts of arguments for a good time yet – and it is apparent from the Gladman case that (1) the resulting trip hazards are as often those introduced by our own domestic policies and (2) when it comes to CJEU cases such as People Over Wind, however inconvenient, our domestic courts are not going to be turning the clock back.

Simon Ricketts, 2 August 2019

Personal views, et cetera