Month: January 2024

EIA Should Not Be A (Duller) Version Of Gladiators

 “It needs to be borne in mind that the EIA process is intended to be an aid to efficient and inclusive decision making in special cases, not an obstacle-race” (Carnwath LJ as he then was, in R (Jones) v Mansfield District Council (Court of Appeal, 16 October 2003).

The courts continually tell us this, despite so many professionals, politicians and objectors still treating the process of environmental impact assessment as some duller version of Gladiators.

Perhaps if we heeded this message the Government wouldn’t need to tie itself up in knots trying to replace environmental impact assessment and strategic environmental assessment with this still vague idea of environmental outcomes reports (reported by Planning Resource this week as now not likely to progress until 2025!).

I thought about this when looking at this week’s (free subscription) Town Library weekly judgments update  – it contains amongst other things two Court of Appeal judgments dealing with particular assessment issues that regularly arise – as to cumulative effects and as to defining the “project“.

First we have R (Substation Action Save East Suffolk v Secretary of State (Court of Appeal, 17 January 2024) which concerned a challenge to development consent orders for the construction of the East Anglia One North and East Anglia Two offshore wind farms with associated onshore and offshore development.

The case has attracted some interest in relation to the court’s determination that the sequential test in relation to flood risk does not apply to the risk of flooding from surface water:

“The relevant provisions of EN-1, the Framework and the PPG do not require an applicant for development consent to demonstrate that whenever there is a risk of flooding from surface water there are no other sites reasonably available where the proposed development could be located in an area of lower surface water flood risk. The risks of flooding from surface water are to be taken into account when deciding whether to grant development consent under section 104 of the 2008 Act. The way in which account is to be taken of that risk raises issues of planning judgment in the application of the relevant provisions of the policies. The judge was correct in her interpretation of the policy and in finding that there was no irrationality or other public law error in the way in which the first respondent dealt with this issue when granting development consent.”

However, it was also interesting to read the the court’s consideration of the extent to which the potential effects on the environment arising from other projects need to be taken into account as cumulative effects. The appellant contended that “certain projects (known as the “Nautilus” and “Eurolink” schemes) have been identified as projects which could connect with the new National Grid substation. An assessment of the effect of those two projects was included in an Extension Appraisal document supplied by the second and third respondents. The appellant contends that the first respondent should have taken that information into account when deciding whether to make the development consent orders but he did not do so.” The reference in Schedule 4 of the EIA Regulations that the environmental statement must describe the likely significant effects of the development, including “the cumulation of effects with other existing and/or approved projects” is regarded as somewhat of a minefield.

The court ducked whether these potential future projects were to be regarded as “existing or approved” because the decision maker lawfully deferred consideration of the cumulative effects on the basis that there was not yet any adequate information on which a cumulative assessment could be based. “Such information as was available on the likely effects of other potential projects was not relevant to the assessment of the significant effects of the projects forming part of the applications for development consent in the present case.”

EIA pragmatism exhibit #1.

Secondly we have R (Together Against Sizewell C) v Secretary of State (Court of Appeal, 20 December 2023) which concerned a challenge to a development consent order for the proposed Sizewell C nuclear power station. The challenge related to Habitats Regulations Assessment rather than environmental impact assessment but the principles read across. It was argued that the Secretary of State  was wrong in law to treat the permanent supply of water to Sizewell C as not being part of the same project as Sizewell C for the purposes of carrying out an “appropriate assessment” under the Habitat Regulations (“Ground 1”) and that even if the Secretary of State was right to regard the permanent water supply as a separate project, he erred in failing to carry out a cumulative assessment of its effects together with those of Sizewell C itself, as per the Habitats Regulations (“Ground 2”).

Lazily I’m now just going to quote from our Town Library case summary:

“Ground 1

The Court dismissed Ground 1. The Court accepted, firstly, that there was no material difference between the meaning of a “project” under the Habitat Regulations and environmental impact assessment regulations and, secondly, that the principle adopted in previous cases that determining the nature and scope of a project, including whether two or more developments are to be regarded as one project, is a matter for the decision-maker to determine, which can only be subject to judicial review by the court on the grounds of irrationality or other unlawfulness. The Court, although seeking not to be prescriptive, endorsed the factors identified in the Wingfield case as capable of influencing this exercise of judgment.

The Court found no irrationality or any other unlawfulness in the Respondent’s decision, noting not only that he was entitled to reach this decision, but the Court would have reached the same conclusion.

It should also be noted that the Court rejected an argument that the Respondent unlawfully avoided appropriate assessment under the Habitats Regulations and saw the approach taken as a realistic and legitimate use of the “staged approach” previously approved in case law.

Ground 2

Ground 2 was dismissed by the Court for a number of reasons. These reasons included that it is well established that the consideration of cumulative impacts arising from a subsequent development that is still inchoate may be deferred to a later consent stage. Given that insufficient information was available as to the water supply, the decision to defer assessment by the Respondent was rational and lawful.

The Court rejected the argument that no proper assessment of the impacts would be carried out at the later stage because the construction of Sizewell C would result in the inevitable approval of the water supply proposal. There was no evidential basis for assuming that regulators would fail to carry out their statutory duties to assess the adverse effects of the water supply. The Court also rejected the argument that deferral was irrational because of a risk of Sizewell C not being operational in the absence of a water supply, as there was a reasonable level of certainty a permanent water supply would be provided and further the alternatives would still be subject to appropriate assessment.

Accordingly, the appeal was dismissed.”

EIA (HRA) pragmatism exhibit #2.

Simon Ricketts, 27 January 2024

Personal views, et cetera

Photograph courtesy BBC

Dennis

There was an interesting Hillside after-tremor this week by way of R (Dennis) v London Borough of Southwark (Holgate J, 17 January 2024) which may prove useful in giving more practical guidance as to the approach to drop-in applications in the context of modern multi-phase masterplan-style permissions.

(For a quick refresher on the Hillside judgment itself, see my 2 November 2022 blog post Running Down That Hillside)

In Dennis an objector challenged the decision by Southwark Council to grant a section 96A (non-material amendments) approval the effect of which was intended to make an outline planning permission for the phased redevelopment and regeneration of the Aylesbury Estate in south east London “severable” (within the meaning of the Hillside judgment) by the insertion of that word into the description of development authorised by the outline planning permission. The claimant contended that the amendment was “material” and therefore outside the scope of section 96A. Southwark Council and the developer, Notting Hill Genesis, submitted that the outline planning permission should be interpreted as “severable” in any event and that the amendment sought was just by way of caution. The amendment was made so as to pave the way for implementation of a drop-in permission for development within one of the phases, which would be inconsistent with what the outline planning permission had authorised. The drop-in application had been resolved to be approved subject to grant of the section 96A application.

There are already a few particular aspects as to the facts which need to be borne in mind before applying the judgment more broadly:

  • The approach to seeking to make a particular phase “severable”, in Hillside terms, from the rest of the permission was simply by way of introducing the word “severable” into the description of development!
  • The parties disagreed as to whether the permission was already to be construed as severable but agreed for the purposes of the litigation that if it was not already severable the amendment would be material and therefore fell outside of section 96A. The judge did not reach a ruling that changes to accommodate drop-in applications are necessarily material and of course that will be a matter for the planning judgment of the decision-maker in every case.
  • The amendment was by way of securing “severability” rather than adjusting the permission so that building it out would not be materially incompatible with what was to come forward by way of a drop-in application.

This is to be contrasted by many Hillside strategies that we see, where alongside submission of the drop-in application care is taken to amend the existing permission to the extent necessary to achieve material physical compatibility – often by way of section 96A because the local planning authority in its planning judgment determines those amendments not to be material. This after all makes sense and, whilst I might have some sympathy for objectors where the strategy is taken that was taken in Dennis, where there would be no control over what might come forward on the severed part of the permission, I don’t have any sympathy where it is perfectly clear what the changes are, by virtue of the drop-in application having been made, accompanied by full assessments of the acceptability of the proposal in the context of the wider consented development and where this is all reported to committee so that everyone is clear and has a full opportunity to make representations to the same extent as if the whole development had been the subject of a fresh application (the Supreme Court’s impractical suggestion in Hillside).

So what did we learn from Dennis, aside from the extent to which Hillside issues remain a menace for all concerned, and aside from being reminded, again, that the Government really should have grasped the nettle and legislated to address the problem in the way that many of us urged (we even provided draft clauses!) rather than sticking with introducing via LURA the very weak section 73B procedural option into the 1990 Act?

  • Hillside applies as much to outline planning permissions as to full permissions.
  • Care is needed as to the word “severable” used by the Supreme Court in Hillside. Simply inserting the bare term “severable” into a permission does not make it severable.
  • Phasing alone does not connote severability. Indeed, “if the inclusion of phasing provisions were to be sufficient to sever a planning permission, whether detailed or outline, that could have consequences which nobody involved in seeking or granting that permission would have envisaged, such as the application of the statutory time limits for the implementation of each separate permission. For example, if the outline permission in Percy Bilton had been treated by the court as severed, the statutory time limits for submitting reserved matters for approval would have applied to each of the resulting discrete permissions and so some of those consents would have become time-expired. That was the issue in the case. Practitioners will therefore need to consider carefully the possible consequences of seeking to argue that a single planning permission should be treated as severed.”

A final point to note is that this case arose not from a challenge to the approval of the drop-in application (quite right, see my 15 December 2023 blog post Permission Incompatibility Not Relevant For The Decision Maker – Court of Appeal In Fiske). The case arose from the attempt of the developer to ensure, by way of the section 96A application, that implementation of that drop-in permission would not lead to a risk that the existing planning permission could no longer be relied on. I would comment that it is of course open to the developer to seek again to amend the permission such that the proposals can proceed.

I noted the statement in Planning Resource from the Public Interest Law Centre, which represented Dennis:

“This is an important judgement for housing campaigners across the country, as large estate redevelopments often unfold from outline planning permissions over time – or ‘phased’ like this. This case scrutinises the method in which developers use ‘drop in’ applications to deviate from what was promised to residents.”

My response would be: What really has been achieved by the challenge? What further assessments will be needed and further opportunity for views to be expressed, as a result of this outcome, that could not have been made in the context of the drop-in application? I’m sceptical.

On a separate note, I was really pleased at the beginning of the week to participate in a joint Landmark Chambers and Town Legal event, looking at the implications of the revised NPPF, chaired by Hashi Mohamed and with other panellists Rupert Warren KC, Anjoli Foster, Meeta Kaur and Sam Stafford. If you missed it (we were hugely oversubscribed), Sam has now put it out online as a 50 Shades of Planning podcast. Listen via this link or on Apple. Spotify etc.

Simon Ricketts, 20 January 2024

Personal views, et cetera

Image courtesy of Wikipedia

Accommodating Asylum Seekers: Some Recent Planning Law Cases

The scale of the current crisis as to where and how to provide accommodation for asylum seekers can be viewed through a succession of High Court planning law cases over the last year or so. This blog post simply seeks to gather the cases in one place.

For context, there is much useful detail in a House of Commons Library research briefing, Asylum accommodation: hotels, vessels and large-scale sites.

Or here is how Thornton J pithily summarises the position in the most recent case (R (Clarke-Holland and West Lindsey District Council) v Secretary of State for the Home Department (Thornton J, 6 December 2023)):

“Since the Covid-19 pandemic, the number of asylum seekers requiring accommodation has reached unprecedented levels. The time taken by the Home Office to process asylum applications has slowed. The Home Office had for some time been “block booking” hotel accommodation for use by asylum seekers, a system by which hotel rooms are booked and paid for, usually at preferential rates, whether or not the rooms are in fact used. In October and November 2022, a “processing facility” at Manston became overcrowded. After the overcrowding at Manston, and in light of the increasing pressure on accommodation, the Home Office started to “spot book” hotels to accommodate the overflow. Spot bookings can be released without payment if they are not needed. This approach was controversial with the local authorities in whose areas the hotels were being booked and, in some cases, they sought injunctions to prevent the use of hotels for that purpose. Spot booking was intended as a short-term solution, but the absence of suitable alternative accommodation has led to the continued use of hotels booked in that way.

As a result of the strains on the asylum system, in January 2023, the Home Office approached the Ministry of Defence and other government departments enquiring about availability of Crown Estate assets which could be made suitable in the short term to assist with accommodating asylum seekers.”

One of the main issues which has come to the fore is whether planning permission required to house asylum seekers in hotels. Indeed this is the specific topic covered in a 17 February 2023 House of Commons Library insight paper .

In planning law, sometimes the easiest questions are the hardest, such as: is there a material change of use? We all know that difficulties particularly arise in relation to the use of properties for sleeping accommodation: for instance, where the boundary lines lie between dwellings, co-living developments, student accommodation, elderly living, hotels, hostels and emergency accommodation for those in need whether through homelessness or asylum seeking. I blogged about some of these issues way back in my 1 July 2016 blog post Time To Review The “C” Use Classes?

Since that House of Commons paper, whilst the issue has arisen in various applications by local planning authorities for injunctions to prevent such use, there has been no final determination of the issue. In fact, the lesson to draw from the (I think) only case where an injunction has been upheld, Great Yarmouth Borough Council v Al-Abdin (Holgate J, 21 December 2022), is that the question is specific to the relevant facts, circumstances and policy position in every case. In Great Yarmouth Holgate J upheld an application for the continuation of an interim injunction “restraining the defendants from using or facilitating the use of the Villa Rose Hotel, 30-31 Princes Road, Great Yarmouth, or any other hotel within an area protected by Policy GY6 of the Great Yarmouth Local Plan Part 2, adopted  in December 2021, as a hostel, whether for the accommodation of asylum seekers or at all.”

Holgate J did not need to reach a final conclusion as to whether the use of the hotel was in breach of planning control, but simply had to determine by applying the “balance of convenience” test whether the injunction should continue in effect. However, he did state the following:

“Planning considerations are to do with the character of the use of land.  It is common ground that the policies of the development plan may be relevant to that issue.  See, for example, Wilson v West Sussex County Council [1963] 2 QB 764, 785.  In my judgment Policy GY6 is certainly relevant.  It is aimed at protecting a substantial part of the local economy of the borough dependent on tourism. That, in turn, is said to depend upon a collection of tourist facilities, including hotel accommodation.”

“There are some factors pointing against a hostel use.  Proposed use would involve no alteration of the premises and in many ways the operation of the premises would be similar to that carried out ordinarily by hotel operators. There would be no dormitories and it is not suggested the accommodation is basic or inexpensive.

On the other hand, there are factors pointing to a hostel use.  In this case, unlike others, the Council is aware of how the premises would be used.  In part this is based upon their experience of the use of the Victoria Hotel.  The premises would be block-booked for a substantial period of time, solely for occupation by people belonging to one cohort, asylum seekers, having nowhere else to live.  In addition, as Mr Glason points out, there would be a degree of management of movement of the residents.  They are not supposed to be absent for more than three days. The duration of their transient occupation would be determined by their move to the next stage of the asylum process.  The accommodation would be paid for ultimately by the Home Office.   As I have said, the location of the hotel within the Seafront Area in Policy GY6 is important.  The claimant may rely upon that policy as a factor indicating that there would be a breach of planning control.

I have already referred to the increase in the 21-day average stay to something of the order of 26 weeks. There is no suggestion that that period is likely to decrease.  The hotel would be closed to public bookings both as regards accommodation and the restaurant.  There would be little or no expenditure by asylum seekers in the town.  It strikes me that that is a highly relevant factor.  They would not contribute to the local economy.  Policy GY6 resists hostel use for what have been judged to be sound planning and economic reasons.  This is a policy which is highly specific.  It does not, for example, cover the whole of the borough or the whole of the town.  Instead, it is targeted at the most important part of the town for tourism.   It applies to a carefully defined strip of land closely related to the major tourist attractions.

At the end of the day whether a material change of use would occur is a question of fact and degree, but in my judgment the particular policy considerations raised in this case by Policy GY6 strengthen the Council’s case on breach of planning control significantly.”

There are two important specific points to bear in mind with this ruling:

First, the relevant local plan policy:

“In my judgment, GY6 is a highly specific, protective policy directed to a large and highly important sector of the Borough’s economy. Mr Glason provides helpful context for the policy.   In 2019 the annual value of tourism to Great Yarmouth was around £648 million, supporting around 9,600 full-time tourism jobs and 13,000 tourism-related jobs, representing 37 per cent of total employment within the Borough. A recent economic report indicates that accommodation and food services is likely to be the second largest growth sector in the Borough after government services.”

Secondly, there had already been an enforcement notice in relation to change of use from the hotel to use as a house in multiple occupation, which does not appear to have been subject to any appeal. The judge considered that accordingly, “the present case is one where the apprehended breach of planning control has a flagrant character. “

The case is to be contrasted with earlier cases where Holgate J refused equivalent applications:

First, in Ipswich Borough Council v Fairview Hotels (Ipswich) Ltd v Serco Ltd and East Riding of Yorkshire Council v LGH Hotels Management Limited (Holgate J, 11 November 2022). This judgment contains, at paragraphs 72 to 83, useful analysis as to the distinctions between a hotel and a hostel in planning law terms. At paragraph 101 he states that the “distinction between hotel and hostel use in a case of the present kind is fine. There are some factors pointing against a hostel use. The proposed use involves no alteration of the premises. In many ways the operation of the Novotel would be similar to that carried out ordinarily by the hotel operators. There would be no dormitories and the accommodation could not be described as basic or inexpensive. On the other hand there are factors pointing to a hostel use. The premises would be block-booked for a substantial period of time solely for occupation by people belonging to one cohort, asylum seekers, having nowhere else to live. The duration of their transient occupation would be determined by their move to the next stage of the asylum process. The accommodation would be paid for ultimately by the Home Office. It is arguable that the factors pointing towards a hostel use outweigh those pointing against.

The effect of the block-booking of the whole hotel is that no accommodation is available for any member of the public. It is said that the Novotel is the largest hotel in the centre of Ipswich and that the loss of the accommodation would be damaging to the hospitality and leisure economy of the town, given its close proximity to restaurants and bars. It is arguable that this alleged harm is a planning consideration which may render a change to a hostel a material change of use and so attract planning control.”

At paragraph 110: “In each case before this court there are factors pointing for and against the proposed use being a hostel use. Even if a hostel use would be involved, the key question still remains whether it would represent a material change of use. That would depend upon the planning consequences of the change. In each case that turns upon the planning harm identified by the claimant.”

Secondly, in Fenland District Council v CBPRP Limited (Holgate J, 25 November 2022) which related to the use of a hotel in Wisbech, Lincolnshire. Holgate J refers back to his analysis in Ipswich.

Am injunction was similarly not upheld in The Council of the City of Stoke-on-Trent v Britannia Hotels Limited (Linden J, 2 November 2022) (I don’t have a link to that judgment I’m afraid).

An injunction was also not upheld in relation to the use of the Stradey Park Hotel in Llanelli. On 7 July 2023, Gavin Mansfield KC, sitting as a Deputy High Court Judge, dismissed an application by Carmarthenshire County Council for an injunction prohibiting the use of the hotel for housing asylum seekers.

In subsequent proceedings, Roger ter Haar KC , sitting as a Deputy High Court Judge,  granted an injunction to restrain unlawful protest activity against the use of the hotel for those purposes. (Again, no links to these judgments I’m afraid).

And, indeed, the Planning Court has also been kept busy on the wider issues arising.

In R (Parkes) v Secretary of State for the Home Department (Holgate J, 11 October 2023), Holgate J rejected an application for judicial review that sought to establish that the Home Office’s proposed use of the Bibby Stockholm barge, moored in Portland Harbour, for the accommodation of asylum seekers, was unlawful, in part, it was submitted, because planning permission would be needed for such use. As a matter of principle the judge considered that the claim was misconceived: it was for the local planning authority in the first instance to determine whether the proposed use was in breach of planning permission and whether it would be expedient to enforce against any breach. But in any event the barge was below the low water mark and therefore beyond the scope of planning control.

In R (Clarke-Holland and West Lindsey District Council) v Secretary of State for the Home Department (Thornton J, 6 December 2023) (which followed a related judgment of the Court of Appeal on 23 June 2023 which held that section 296A of the Town and Country Planning Act 1990 was a statutory bar to an injunction being upheld against the Government in the case), Thornton J rejected applications for judicial review brought seeking to challenge the lawfulness of the Home Office’s reliance on class Q of the General Permitted Development Order allowing development on Crown land in an emergency in connection with the proposed use of RAF Wethersfield in Essex and RAF Scampton in Lincolnshire for the accommodation of asylum seekers.

I usually end with some flippant closing comments but not today. Behind each case lies much human misery.

Simon Ricketts, 14 January 2024

Personal views, et cetera

Extract from photograph by Marcus Spiske courtesy of Unsplash

The Only Way Is Up

I remember watching Don’t Look Up on new year’s day 2022. Not the best film ever but certainly an apt analogy when It comes to the climate crisis. I can’t believe that was two years ago. Where does the time go?

I’m going to briefly look up again. Last year was the second warmest ever in the UK and the period since July 2023 has been the wettest in 130 years.

And there’s certainly been some domestic political heat around climate issues. I’m thinking back to my 5 August 2023 blog post Does The Government Have An Environmental Strategy Or Is It More Of A Tactic?

Today’s post was simply going to point to guidance published jointly by the Department for Culture, Media & Sport, the Department for Energy Security and DLUHC: Adapting historic homes for energy efficiency: a review of the barriers (3 January 2024) – and I’ll come to that.

But then news came through yesterday afternoon of Conservative MP Chris Skidmore’s resignation of the party whip (5 January 2024).

I had praised Skidmore’s independent review last year of the Government’s net zero plans in my 21 January 2023 blog post Mission Zero Needs Planning. He knows what he’s talking about on the subject.

Here is his resignation statement in full:

“Next week the government will be introducing the Offshore Petroleum Licensing Bill in the House of Commons.

This bill would in effect allow more frequent new oil and gas licences and the increased production of new fossil fuels in the North Sea. It is a bill that I have already stated my opposition to, by not voting in the King’s Speech debate in protest at the bill’s inclusion in the government’s legislative programme.

As the former Energy Minister who signed the UK’s net zero commitment by 2050 into law, I cannot vote for a bill that clearly promotes the production of new oil and gas. While no one is denying that there is a role for existing oil and gas in the transition to net zero, the International Energy Agency, the UNCCC and the Committee on Climate Change have all stated that there must be no new additional oil and gas production on top of what has already been committed, if we are to both reach net zero carbon dioxide emissions by 2050 and keep the chance of limiting temperature rises to 1.5 degrees.

Decisions taken at COP28 last month also set in motion the global transition away from fossil fuels. As the exponential growth of renewable and clean power continues, as we seek to reduce our energy demand for fossil fuels through the adoption of better energy efficiency in buildings and industry, as the adoption of electricity replaces fossil fuels, there is no case to be made for increasing fossil fuel production at a time when investment should be made elsewhere, in the industries and businesses of the future, and not of the past.

As fossil fuels become more obsolete, expanding new oil and gas licences or opening new oil fields will only create stranded assets of the future, harming local and regional communities that should instead be supported to transition their skills and expertise to renewable and clean energy.

The Net Zero Review I published a year ago next week, Mission Zero, set out how net zero can be the economic opportunity of this decade, if not our generation, bringing with it hundreds of thousands of new jobs, new growth, new regeneration and inward investment worth hundreds of billions of pounds. To achieve this however requires long term commitment to the energy transition, and a clear and consistent message to business and industry that the UK is committed to climate action as a global leader, as it has been for the past two decades.

The bill that will be debated next week achieves nothing apart from to send a global signal that the UK is rowing ever further back from its climate commitments. We cannot expect other countries to phase out their fossil fuels when at the same time we continue to issue new licences or to open new oil fields. It is a tragedy that the UK has been allowed to lose its climate leadership, at a time when our businesses, industries, universities and civil society organisations are providing first class leadership and expertise to so many across the world, inspiring change for the better.

I cannot vote for the bill next week. The future will judge harshly those that do. At a time when we should be committing to more climate action, we simply do not have any more time to waste promoting the future production of fossil fuels that is the ultimate cause of the environmental crisis that we are facing.

But I can also no longer condone nor continue to support a government that is committed to a course of action that I know is wrong and will cause future harm. To fail to act, rather than merely speak out, is to tolerate a status quo that cannot be sustained. I am therefore resigning my party whip and instead intend to be free from any party-political allegiance.

I am deeply grateful for the privilege I have had to serve in government across several departments, including as Energy Minister attending Cabinet, and to have been appointed as the Independent Chair of the Net Zero Review. It is nearly fourteen years since I was first elected as the Member of Parliament for Kingswood, and I am especially grateful to my constituents for placing their repeated trust and faith in me. First and foremost, my duty has been to serve them, as their elected representative.

It is with that duty to them in mind as their representative that my personal decision today means, as I have long argued, that they deserve the right to elect a new Member of Parliament. I therefore will be standing down from Parliament as soon as possible.

It has been a remarkable and wonderful opportunity to serve as a Member of Parliament for nearly fourteen years, but I now intend to focus all my energy and attention on delivering net zero and the energy transition.”

A pretty devastating critique.

Against that broader background, it’s difficult to do anything with the Adapting historic homes for energy efficiency: a review of the barriers guidance document (3 January 2024) than damn it with faint praise.

As stated in the document’s introduction:

“Alongside the need to protect and conserve, historic homes have an important contribution to make in meeting our Net Zero objectives, both in terms of their contribution to the broader UK energy efficiency and low carbon heat agenda, and in the carbon which is saved through their continued use and reuse. Historic properties make up a significant proportion of the UK’s building stock, with 5.9 million buildings constructed before 1919. Historic properties can and should be part of the solution, and this report is intended to maximise their potential in supporting our progress towards Net Zero.

Through this review, we have gained a better understanding of the practical barriers that owners of listed buildings and homes in conservation areas face when they want to install energy efficiency or low-carbon heating measures in their properties.” 

The document follows a commitment in the Government’s April 2022 British Energy Security Strategy. It contains sections on the role of the planning system; issues with local authority skills, training and capacity; guidance available for homeowners and occupiers; construction industry sills, training and capacity, and affordability and financial incentives. It concludes with a summary of the 55 actions and future commitments arising. The seven under the heading “planning” are as follows:

  • Delivery of planning reform through the Levelling-Up and Regeneration Act so that it supports good design and environmental outcomes better, is less complex, and easier to engage with            
  • Implementation of the newly updated National Planning Policy Framework (NPPF), including a new policy to support energy efficiency improvements to existing buildings       
  • Consult on changes to permitted development rights for heat pumps in England
  • Consultation on National Development Management Policies including specifically on improvements to historic buildings
  • Consult on the opportunities for greater use of Listed Building Consent Orders (LBCOs) to support energy efficiency improvements to listed buildings              
  • Support Local Planning Authorities that wish to develop exemplar Local Listed Building Consent Orders   (Historic England)
  • Publish a Historic England Advice Note (HEAN) on Climate Change and Historic Building Adaptation to help decision-makers deliver climate action while protecting heritage (Historic England)

The announcements as to national development management policies and also local listed building consent orders are potentially interesting. This is what the document itself says:

“First, as part of the implementation of National Development Management Policies following Royal Assent of the Levelling-up and Regeneration Act, DLUHC will create new National Development Management Policies (NDMPs), including a policy specifically for improvements to historic buildings. This policy will be integrated into the wider suite of heritage National Development Management Policies which will replace current policy affecting decision making in chapter 16 of the National Planning Policy Framework. In doing so, this will help to ensure greater certainty and consistency about decisions on applications for energy efficiency improvements affecting listed buildings and buildings in conservation areas across England. The government will consult on this new policy as part of its development of National Development Management Policies.

Second, the review has demonstrated there is a significant appetite for increasing the use of Local Listed Building Consent Orders to provide upfront listed building consent for certain common energy efficiency improvements on listed buildings so owners can make these improvements without the need to apply for consent. There is not, however, a clear consensus from stakeholders about how and when Local Listed Building Consent Orders should be used to support these energy efficiency improvements. In particular, it will be important that these orders do not permit energy efficiency measures which harm the significance of listed buildings.

As a first step, DLUHC will consult on the opportunities for using Local Listed Building Consent Orders to support energy efficiency improvements on listed buildings. The consultation will specifically ask about:

  • the role for Local Listed Building Consent Orders prepared by local planning authorities; and
  • the potential for a Listed Building Consent Order made by the Secretary of State which would grant listed building consent for certain improvements across England.”

Here’s to much more of this, in particular to closer working between DLUHC and the Department for Energy Security and Net Zero, and in particular to politicians such as Mr Skidmore actually prepared to look up.

Simon Ricketts, 6 January 2024

Personal views, et cetera

Pic by Christian Wiediger via Unspash