Climate – Page 2 – SIMONICITY

Does My Embodied Carbon Look Big In This?

M&S used to be the bellwether of the retail sector but its proposed demolition and redevelopment of its 456 – 472 Oxford Street store, in preference to refurbishment and extension, is as likely to be a bellwether of decision makers’ approach to carbon efficiency and in particular to justifying the loss of embodied carbon.

Siri, give me a definition of embodied carbon:

“Embodied carbon means all the CO2 emitted in producing materials. It’s estimated from the energy used to extract and transport raw materials as well as emissions from manufacturing processes.

The embodied carbon of a building can include all the emissions from the construction materials, the building process, all the fixtures and fittings inside as well as from deconstructing and disposing of it at the end of its lifetime.” (UCL engineering faculty).

Plainly, maximising the carbon efficiency of new development should be a significant material consideration in the determination of planning applications. But it’s not easy. How, for instance, to weigh longer term operational carbon savings against the one-off carbon costs associated with demolition and rebuild? And how much weight is to be given to carbon saving in the planning process as against other considerations?

You can look in vain for any specific guidance in the National Planning Policy Framework. The “planning for climate change” section (paragraphs 153 to 158) is of course woefully out of date, with an update promised mañana. Climate crisis what crisis?

Even so, the issue was raised by the Secretary of State when he dismissed the Tulip appeal (11th November 2021): “Although considerable efforts have been made to adopt all available sustainability techniques to make the construction and operation of the scheme as sustainable as possible” the result would still amount to “a scheme with very high embodied energy and an unsustainable whole life-cycle.” The Secretary of State also agreed with the Inspector: “that the extensive measures that would be taken to minimise carbon emissions during construction would not outweigh the highly unsustainable concept of using vast quantities of reinforced concrete for the foundations and lift shaft to transport visitors to as high a level as possible to enjoy a view.”

Notwithstanding the lack of national policy guidance, the London Plan does have a policy hook, Policy SI 2:

Not only that, as of 17 March 2022 the policy is supported by London Plan Guidance, Whole Life-Cycle Carbon Assessments and on the circular economy.

I want to scoot through the sequence of events so far in relation to the M&S proposal.

Its application for planning permission was submitted to Westminster City Council on 2 July 2021, proposing the demolition of the three buildings that comprise its 456 – 472 Oxford Street store, to make way for a comprehensive redevelopment to provide a building comprising two basement levels, ground and nine upper floors. The proposal would provide an office and retail led mixed use development. The oldest of the buildings, Orchard House, dates from the 1930s. Two comprise basement plus six storeys and one being basement plus seven storeys. Given the changing retail economy, the need for substantial changes to buildings such as this is of course no surprise. The scheme is by architects Philbrow & Partners.

Fred Philbrow stresses the lower lifetime carbon emissions that will arise from the new building, rather than a retrofit:

“It’s not always right to refurbish” old structures, Pilbrow told Dezeen, claiming that the contentious project is akin to trading in a gas guzzler for a Tesla.

“I would liken this to a discussion about a not-very-well-performing diesel car from the 1970s,” he said. “And what we’re trying to do is replace it with a Tesla.“

“In the short term, the diesel car has got less embodied carbon,” he added. “But very quickly, within between nine and 16 years, we will be ahead on carbon because our Tesla will perform better.” (Dezeen, 17 December 2021).

The application was resolved to be approved by Westminster City Council on 23 November 2021, despite last minute objections from Save Britain’s Heritage and others. The report says this on carbon:

“The applicant has submitted a Whole Life-Cycle Carbon Assessment (WLCA) prepared by Arup, as required by Policy SI2 of the London Plan and City Plan Policy 36.

The WLCA includes a comparative assessment of the whole life carbon emissions of a ‘light touch’ refurbishment versus new build development options. The report sets out that refurbishment option has the lowest embodied carbon impact initially because minimal works (and materials) are required. However, this increases over time due to the required maintenance and poor operational performance of the existing buildings.

The assessment concludes that the new build option is the most efficient scenario, especially through the implementation of the low-carbon opportunities recommended in the report. Whilst it has a higher initial embodied carbon than the refurbishment option as it needs to be built (with a high carbon expenditure) – over its operational lifetime it will require much less maintenance than the refurbishment option and be a more efficient building, providing a betterment from years 15/16.

The GLA in their stage 1 response requested the applicant to complete the GLA’s WLCA assessment template. This has been submitted to the GLA and an update on this position with regard to London Plan policy S12 will be reported verbally at the Committee meeting.”

The resolution was subject to referral to the Mayor of London and completion of a section 106 agreement, including an index linked carbon offset payment of £1,198,134 payable prior to the commencement of development.

On the same day as Westminster’s resolution to grant, Historic England turned down a request by objectors that the building be listed.

The Mayor confirmed on 7 March 2022 that he was not going to intervene. However, Save Britain’s Heritage complained that he had not taken into account representations that they had made, including a report they had commissioned from Simon Sturgis Why a Comprehensive Retrofit Is more Carbon Efficient than the Proposed New Build. Simon had previously advised the Mayor on his emerging carbon policies. [NB see Simon Sturgis’ subsequent comments on this blog post at the foot of the page]

Unusually, the Mayor then decided he was going to reconsider the issue:

“A spokesperson for the Mayor of London, said: ‘In line with London Plan policy on Whole Life Carbon, the question of retention and refurbishment or demolition and new build was considered in the GLA’s assessment of this application, and based on officer advice that there was no sound planning reason to intervene, on 7 March the Mayor made the decision to allow Westminster to determine the application.

‘However, City of Westminster is yet to issue its planning decision, and the GLA has now published its planning guidance on Whole Life Carbon and Circular Economy. In light of this situation GLA officers consider it would be prudent to consider a further Stage 2 report, which would also allow consideration of the detailed report by Simon Sturgis examining the carbon emissions impacts of the proposed demolition. An updated Stage 2 report will be presented for consideration at the Mayor’s meeting on Monday 4 April.’” (Architects Journal, 1 April 2022).

However, his decision on 4 April 2022 was the same – no intervention. The stage 2 report and addendum report are available here.

Given the assessment that the Mayor will have made as against his own policies, more up to date and stringent than those of the Government, it is perhaps disappointing for those who believe in devolved decision making then to read that Michael Gove has, presumably in response to further representations (see eg Save Britain’s Heritage’s letter dated 20 April 2022) issued a holding direction preventing Westminster City Council from issuing planning permission until he has decided whether to call it in. The holding direction, under Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2015, is only a precautionary procedural step to buy time and doesn’t at all mean that the Secretary of State is definitely going to call the application in, just that he is considering whether to do that. Indeed holding directions are not particularly unusual in relation to controversial proposals where the Secretary of State has received requests from objectors for him to use his call in powers. seeking call in. But frankly it’s anybody’s guess what will now happen.

The planning system is certainly curious in its inconsistencies. What about the “demolish and rebuild” permitted development rights for some categories of building, introduced in August 2020? Or that demolition of itself does not usually require formal planning permission?

Concluding thoughts:

⁃ climate change considerations should increasingly be central to planning decision making

⁃ but it’s no use the Government reacting in an ad hoc way to specific proposals – up to date, practical, guidance is needed to manage everyone’s expectations – a lengthy call in inquiry is in no-one’s interests

⁃ it shouldn’t be about the easy headlines and twitter pile-ons, but about robust detailed calculations.

⁃ watch how heritage campaign groups continue to accentuate the embodied carbon issue: embodied carbon vs operational savings via more efficient buildings is going to be a constant battleground.

For further reading: Material Considerations: Climate change, embodied carbon and the role of planners (Lichfields’ Alison Bembenek, 11 Feb 2022).

For further listening: Blackstock’s PropCast podcast M&S refurbishment row: experts say demolition decisions need to be about more than just carbon (21 April 2022).

Talking of listening…no clubhouse Planning Law Unplanned discussion this week but plenty of previous episodes to listen to here and some good sessions lined up….

Simon Ricketts, 23 April 2022

Personal views, et cetera

When The Wind Blows

Relax – this blog post is about on shore wind turbines rather than nuclear fallout.

But there is somewhat of a “dig for victory” feel to our current conversations about energy. If we all just turn down our thermostats by one degree and so on.

Against the urgent need for greater energy security, against the escalating costs of energy and fuel (which make “levelling up” a side show) and of course against the largest and most relentless horseman of the apocalypse, climate change – there is one central question: How can we reduce our energy requirements and maximise the potential of our “home grown” sources of energy?

Following this 8 March Government press statement UK to phase out Russian oil imports (phasing out to be by the end of this year), we await a statement from the prime minister next week on the future of UK energy supply. He was quoted last week as follows:

“We need to intensify our self reliance as a transition with more hydrocarbons, but what we also need to do is go for more nuclear and much more use of renewable energy,” he said. “I’m going to be setting out an energy strategy and energy supply strategy for the country in the days ahead.”

This is not going to be uncontroversial, both by reference to “more hydrocarbons” (see eg Johnson hints UK oil and gas output must rise to cut dependence on Russia (The Guardian, 7 March 2022)) but also unfortunately in relation to renewables, the further encouragement of which should surely be a no-brainer.

We had a wide-ranging clubhouse discussion back on 8 February 2022, Renewable energy and using less energy: are you plugged in? which is worth listening back to (it includes discussion of energy reduction and of what is happening in relation to off shore wind energy which this blog post will not), and there is also my 23 October 2021 blog post Net Zero Strategy: We Can Have Cake & Eat It, but all that seems a long time ago set against recent events.

Warning: this blog post only considers England’s, particularly troubled, policy position, rather than the rest of the United Kingdom.

The July 2021 update to the NPPF did not contain any specific changes in relation to planning for climate change. Paragraph 152 (previously paragraph 148) still reads:

“The planning system should support the transition to a low carbon future in a changing climate, taking full account of flood risk and coastal change. It should help to: shape places in ways that contribute to radical reductions in greenhouse gas emissions, minimise vulnerability and improve resilience; encourage the reuse of existing resources, including the conversion of existing buildings; and support renewable and low carbon energy and associated infrastructure.”

When the update was published the Government’s response to consultation stated that 20% of respondents to that draft section of the framework “recognised the importance of climate change and indicated a need for stronger terminology to reflect this, such as specific references to the net zero target and emphasis on renewable energy” and stated that the Government is “committed to meeting its climate change objectives and recognises the concerns expressed across groups that this chapter should explicitly reference the Net Zero emissions target. It is our intention to do a fuller review of the Framework to ensure it contributes to climate change mitigation/adaptation as fully as possible, as set out in the [planning white paper].”

So we expect changes to the NPPF to strengthen planning policies on climate change. Can we expect any change of policy in relation to on-shore wind in particular?

If you recall, following its 2015 election manifesto pledge, the Government significantly toughened its stance in relation to on shore wind. Greg Clark issued this written ministerial statement on 18 June 2015:

“I am today setting out new considerations to be applied to proposed wind energy development so that local people have the final say on wind farm applications, fulfilling the commitment made in the Conservative election manifesto.

Subject to the transitional provision set out below, these considerations will take effect from 18 June and should be taken into account in planning decisions. I am also making a limited number of consequential changes to planning guidance.

When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if:

· the development site is in an area identified as suitable for wind energy development in a Local or Neighbourhood Plan; and

· following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.

In applying these new considerations, suitable areas for wind energy development will need to have been allocated clearly in a Local or Neighbourhood Plan. Maps showing the wind resource as favourable to wind turbines, or similar, will not be sufficient. Whether a proposal has the backing of the affected local community is a planning judgement for the local planning authority.”

New subsidies for on shore wind were also ended.

The stance flowed through to the NPPF and the relevant paragraph remains – supportive of renewable energy in principle but with a killer footnote in relation to on shore wind:

“158. When determining planning applications for renewable and low carbon development, local planning authorities should:

(a) not require applicants to demonstrate the overall need for renewable or low carbon energy, and recognise that even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions; and

(b) approve the application if its impacts are (or can be made) acceptable 54 . Once suitable areas for renewable and low carbon energy have been identified in plans, local planning authorities should expect subsequent applications for commercial scale projects outside these areas to demonstrate that the proposed location meets the criteria used in identifying suitable areas.”

Footnote 54:

“(54) Except for applications for the repowering of existing wind turbines, a proposed wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified as suitable for wind energy development in the development plan; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing.”

BEIS’s December 2021 document Community Engagement and Benefits from Onshore Wind Developments – Good Practice Guidance for England is, I suspect, largely wishful thinking without a remotely encouraging policy position. Is anyone aware of many (any?) local or neighbourhood plans which actually do identify suitable areas for wind energy development?

It seems that the wind could soon be changing if these media pieces are to be believed:

Relaxing rules on wind farms could ease gas crisis (The Times, 9 March 2022)

BEIS to tackle onshore wind planning restrictions in England (renews.biz, 10 March 2022)

The Government has of course been consulting on its suite of energy national policy statements, which set the policy basis for the determination of development consent order applications for nationally significant infrastructure projects. The draft national policy statement for Renewable Energy Infrastructure (EN‐3) (September 2021) is not currently relevant to on shore wind, as on shore wind projects were entirely removed from the NSIP system. However, could we see a volte face on that restriction too?

It was interesting last week to read the detailed 9 March 2022 House of Commons briefing paper research paper on large solar farms and the Hansard transcript of the Westminster Hall debate on the subject. As with on shore wind, there are of course conflicting priorities to be weighed up – with on shore wind it is most often issues as to effect on protected landscapes and heritage assets and with solar farms most often the use of productive farm land (after all, food security is possibly as important as energy security). I wonder whether the position in relation to solar farms would be clearer if the NPPF reflected the language of the draft renewable energy infrastructure NPS (which of course only applies to solar farms of 50 MW capacity or above):

“Whilst the development of ground mounted solar arrays is not prohibited on sites of agricultural land classified 1, 2 and 3a, or designated for their natural beauty, or recognised for ecological or archaeological importance, the impacts of such are expected to be considered […]. It is recognised that at this scale, it is likely that applicants’ developments may use some agricultural land, however applicants should explain their choice of site, noting the preference for development to be on brownfield and non-agricultural land.”

But back to the big picture – what direction are the prime minister’s announcements likely to take? This is such a precarious moment for the country’s approach to the climate crisis, with siren calls from the likes of Farage for a “net-zero referendum” and from some, equally opportunistically, even for a reversal of the Government’s ban on fracking.

Dangerous times.

Simon Ricketts, 12 March 2022

Personal views, et cetera

PS no Clubhouse this week, due to MIPIM for some. We return on the 22 March – subject yet to be announced!

Net Zero Strategy: We Can Have Cake & Eat It

“For years, going green was inextricably bound up with a sense that we have to sacrifice the things we love. But this strategy shows how we can build back greener, without so much as a hair shirt in sight. In 2050, we will still be driving cars, flying planes and heating our homes, but our cars will be electric gliding silently around our cities, our planes will be zero emission allowing us to fly guilt-free, and our homes will be heated by cheap reliable power drawn from the winds of the North Sea. And everywhere you look, in every part of our United Kingdom, there will be jobs. Good jobs, green jobs, well-paid jobs, levelling up our country while squashing down our carbon emissions.”

More cakeism from our prime minister, this time in his foreword to the Government’s Net Zero Strategy: Build Back Greener (19 October 2021).

The document is of course hugely important. Together with the Government’s heat and buildings strategy published the same day, this is the detailed plan, presented to Parliament pursuant to the Climate Change Act 2008, which sets out how our country will achieve its net zero carbon target by 2050. But it has a wider role ahead of next month’s COP 26 event in Glasgow, both pour encourager les autres and, more formally, to be “submitted to the United Nations Framework Convention on Climate Change (UNFCCC) as the UK’s second Long Term Low Greenhouse Gas Emission Development Strategy under the Paris Agreement.”

It’s a detailed document, 368 pages – full of initiatives, science, business exhortation, more acronyms than you could shake a stick at and a fair degree of management consultancy/policy wonk speak (for instance, repeated use of “no regrets” and “low regrets” options terminology). After an evening’s scrolling I’m in no place to determine whether it’s brilliant or bonkers in its world-leading optimism. In fact, as someone always in need of a mental map as to how these sorts of strategy fit into the wider international and national legislative and policy framework, it was a relief to get to the technical annex (from page 306) and the client science annex (from page 362), which made for refreshingly clear if bracing reading.

The document largely dismisses any idea that there are any hard choices ahead. We have all seen the media gossip as to internal differences of view within the Conservative party, for instance UK meat tax and frequent-flyer levy proposals briefly published then deleted (Guardian, 20 October 2021) and Tempers fray as Tories fail to unite for Cop26 climate talks (The Times, 23 October 2021). The withdrawn BEIS research paper Net Zero: principles for successful behaviour change initiatives – key principles from past government-led behavioural change and public engagement initiatives makes interesting reading but is hardly any smoking gun.

The lack of any emphasis being given to the planning system as a mechanism for helping to deliver change and regulate against unwelcome outcomes is telling. I was dutifully gathering the snippets but I then read this very good piece by Michael Donnelly which pieces them together very much how I would have liked to have done: Net zero strategy promises to ’embed’ transport decarbonisation in spatial planning and reiterates NPPF review (Planning magazine, 20 October, behind paywall).

The fullest and most direct reference to planning in the whole strategy is probably on page 267:

“National planning policies already recognise the importance of sustainable development and make clear that reducing carbon emissions should be considered in planning and decision making. The National Model Design Code provides tools and guidance for local planning authorities to help ensure developments respond to the impacts of climate change, are energy efficient, embed circular economy principles, and reduce carbon emissions. The government is considering how the planning system can further support our commitment to reaching net zero. We will make sure that the reformed planning system supports our efforts to combat climate change and help bring greenhouse gas emissions to net zero by 2050. For example, as part of our programme of planning reform we intend to review the National Planning Policy Framework to make sure it contributes to climate change mitigation and adaptation as fully as possible.”

There is no indication of how the planning system can help, or when the NPPF is to be reviewed. Of course the twin dangers are of, on the one hand, a set of changes in the near future that address net zero and then a further set of changes to reflect whichever changed direction planning reform more generally is to embark upon following the pause to the white paper thinking, and, on the other hand, a long long wait, whilst everything is knitted together.

The role of the planning system is of course intertwined with the various proposals within the Environment Bill, given plenty of airtime in the document, and, after all this is policy bingo, there are plenty of references to levelling up.

The present vacuum ahead of any hard news on the NPPF or wider reforms is of course being filled with noise, suggestions, exhortations (see eg There’s a climate emergency, and the planning system is not helping (Andrew Wood, CPRE, 18 October 2021) and, particularly recommended, joint guidance published on 19 October 2021 by the RTPI and TCPA on planning and climate change). You’re at a gig and the lights have gone down, the background music has been killed and there’s the occasional roadie scuttling across the stage.

Normal people can stop reading at this point and jump to the end. But for the cut and paste junkies, here are some other quotes from along the way:

“Deliver four carbon capture usage and storage (CCUS) clusters, capturing 20-30 MtCO2 across the economy, including 6 MtCO of industrial emissions, per year by 2030”

“Following the Phase 1 of the Cluster Sequencing process, the Hynet and East Creating the skilled workforce to deliver net zero and putting UK Coast Clusters, will act as economic hubs for green jobs in line with our ambition supply chains at the forefront of global markets to capture 20-30 MtCO2 per year by 2030. This puts Teesside and the Humber, Merseyside and North Wales, along with the North East of Scotland as a reserve cluster, among the potential early SuperPlaces which will be transformed over the next decade.”

“We will also take a place-based approach to net zero, working with local government to ensure that all local areas have the capability and capacity for net zero delivery as we level up the country. And Government is leading the way – embedding climate into our policy and spending decisions, increasing the transparency of our progress on climate goals, and providing funding to drive ambitious emissions reductions in schools and hospitals.”

“These opportunities show that net zero and levelling up go hand in hand. Delivering net zero allows us to boost living standards by supporting jobs and attracting investment in the green industries of the future, which can be in areas that need this the most. Crucially, delivering net zero also involves supporting workers employed in high carbon industries that will be affected by the transition, by giving them the skills they need to make the most of new opportunities in the green economy. But the link between net zero and levelling up is wider than just the economy, net zero can deliver wider benefits for people and communities across the UK by helping spread opportunity and restore pride in place.

We are already taking action to make the most of these opportunities. We have embedded a net zero principle in our levelling up funding initiatives, such as the Levelling Up Fund and the Towns Fund, so that these schemes can contribute to meeting our net zero targets and help places to reduce their carbon impacts. Later this year, we will publish a Levelling Up White Paper. This will build on the actions the government is already taking to both deliver net zero and level up across the country, including the ones set out in this strategy, and set out new interventions to improve livelihoods and drive economic growth in all parts of the UK.”

“The characteristics of the net zero challenge – requiring action by multiple parties across the public and private sectors, delivery at pace, and management of large uncertainties – underline the need for strong coordination in policy development and clear signalling to markets. Government taking a systems approach to policy will help to navigate this complexity. We must consider the environment, society, and economy as parts of an interconnected system, where changes to one area can directly or indirectly impact others. This will help to ensure we design policy to maximise benefits, account for dependencies, mitigate conflicting interests and take account of learning as we go. It reduces the risk of unintended consequences, ensuring individual decisions designed to help achieve net zero do not end up hindering it or other important objectives.”

“New standards and regulation.

In certain areas government will need to support and complement market-led decarbonisation with standards and regulation to ensure that, where appropriate, green options are pursued, while high carbon options are phased out. This will help to accelerate low regrets areas like energy efficiency, such as ensuring our homes are built to new standards, and high impact areas like zero emission vehicles. It will also ensure suppliers of higher-carbon technologies and fuels provide low carbon alternatives, driving deployment at scale.

• Planning and infrastructure.

Low carbon solutions rely on transforming the infrastructure needed to deliver them. Increasing electricity generation needs to be accompanied by building out a flexible grid. Alongside dedicated hydrogen infrastructure, new CO2 transport and storage infrastructure is needed for the use of CCUS which will require investment of around £15 billion from now to the end of the Carbon Budget 6 period. We need to ensure that low carbon energy generation can be connected to sources of demand geographically, which means improving knowledge of local circumstances and opportunities for generation. We also recognise the importance of the planning system to common challenges like combating climate change and supporting sustainable growth.

• Sustainable use of resources.

Net zero will mean maximising the value of resources within a more efficient circular economy. It will need a significant increase in the use of certain types of resources – critical minerals like lithium, graphite, and cobalt, as well an increased demand on resources like copper and steel – from manufacturing green technologies to building large-scale infrastructure. This will require new robust supply chains and provide economic opportunities, but there will be environmental trade-offs, and potential negative impacts on habitats, biodiversity, and water resources to be managed carefully. For example, ammonia emissions from anaerobic digestion, which can use waste as a feedstock, can also affect biodiversity and health.

• Understanding land use trade-offs.

Like other resources, our land is finite and competition for it will need to be managed as we rely on natural resources and use land for multiple new purposes, such as perennial energy crops and short rotation forestry for energy generation, while allowing for afforestation and peatland restoration to sequester and avoid emissions. We will also need to ensure net zero is compatible with wider uses of land such as agriculture, housing, infrastructure, and environmental goals. These land use challenges are exacerbated by the impact of climate change on the availability of productive land and water in future.”

“New Buildings. We will introduce regulations from 2025 through the Future Homes Standard to ensure all new homes in England are ready for net zero by having a high standard of energy efficiency and low carbon heating installed as standard. This should mean that all new homes will be fitted with a low carbon heat source such as a heat pump or connected to a low carbon heat network. To reinforce this, we will consult on whether it is appropriate to end new gas grid connections, or whether to remove the duty to connect from the Gas Distribution Networks. As an interim measure to the Future Homes Standard, we plan to introduce an uplift in standards, effective from June 2022, for England that would result in a 31% reduction in carbon emissions from new homes compared to current standards. We will also respond to our consultation for the Future Buildings Standard for new non-domestic buildings.”

“47. We are driving decarbonisation and transport improvements at a local level by making quantifiable carbon reductions a fundamental part of local transport planning and funding. Local Transport Plans (LTPs) – statutory requirements that set out holistic place-based strategies for improving transport networks and proposed projects for investment – will need to set out how local areas will deliver ambitious carbon reductions in line with carbon budgets and net zero.

48. We will embed transport decarbonisation principles in spatial planning and across transport policy making. Last year, the government set out proposals for a new and improved planning system, central to our most important national challenges, including combating climate change and supporting sustainable growth. The National Model Design Code, published in July this year, guides local planning authorities on measures they can include within their own design codes to create environmentally responsive and sustainable places. The National Model Design Code provides tools and guidance for local planning authorities to help ensure developments respond to the impacts of climate change, are energy efficient, embed circular economy principles and reduce carbon emissions.”

“The UK has a limited amount of land and delivering net zero will require changes to the way this land is used, for example, for afforestation, biomass production, and peat restoration. Opportunities for land to be used for multiple purposes, such as agroforestry will help to make sure land use for decarbonisation purposes is balanced with other demands, such as housing development and food production. These changes are likely to have varying effects on wider environmental outcomes and may completely alter the character of some landscapes and rural livelihoods (see section below). Land use change must be designed in a systemic, geographically targeted way with appropriate local governance and delivery structures which consider the complex range of interacting social, economic, and demographic factors. To support this, government is developing a Net Zero Systems Tool which aims to allow key decision makers to gain new insights and understanding, by highlighting dependencies and trade-offs within the land use system, as well as by demonstrating the knock-on effects of proposed policies. In addition, through the Environment Bill, the Government is introducing Local Nature Recovery Strategies (LNRS), a spatial planning tool for nature, allowing local government and communities to identify priorities and opportunities for nature recovery and nature-based solutions across England. The Bill includes a specific duty on all public authorities to “have regard” to relevant LNRSs and the spatial information they provide will support the development of local plans and other land use change incentives. Delivery of priorities and opportunities identified in LNRS will be supported by a range of delivery mechanisms including our environmental land management schemes, and in particular, the Local Nature Recovery scheme. By 2028, Defra’s current plans are for total spend to be evenly split between farm-level, locally tailored, and landscape-scale investment within ELM.”

“Local green infrastructure and the environment

34. Government will launch a new National Framework of Green Infrastructure Standards in 2022. This will support local areas and regions to deliver well-designed green infrastructure where it is most needed to deliver multiple benefits. These networks of green and blue spaces and other natural features, including trees, provide an opportunity to benefit local economies and bring about long-term improvements in people’s health and wellbeing. At the same time, it can help us to mitigate and adapt to climate change, through capturing and storing carbon, shading and cooling, and reducing flooding.

35. The Environment Bill is also creating a new system of spatial strategies called Local Nature Recovery Strategies to target action for nature and to drive the use of nature-based solutions to tackle environmental challenges like climate change. It is expected that there will be approximately 50 Local Nature Recovery Strategies covering the whole of England with no gaps and no overlaps. Preparation of each Strategy will be locally led and collaborative, with local government taking a critical role. This will provide local government with a new tool through which they can work with local partners to identify where effort to create or restore habitat would have greatest benefit for climate mitigation, whilst also having positive benefits for nature and the wider environment. Between 2021 and 2027, we will be doubling our overall investment in flooding and coastal erosion to £5.2 billion.

36. In addition, £200 million will be invested in the Innovative Flood and Coastal Resilience Innovation Programme. This will help over 25 local areas over six years to take forward wider innovative actions that improve their resilience to flooding and coastal erosion. The Environment Agency is also working with coastal authorities on a £1 million refresh of Shoreline Management Plans.”

Normal people you can start reading again…

I hope that was at least a taster and I recommend that you dip into the document itself. Whatever happens to the planning system, the initiatives set out in the document are undoubtedly going to be central to our lives and work over the years to come.

We’re going to be discussing all this for an hour or so from 6 pm on Tuesday 26 October 2021 on clubhouse. I’ve never been to a book club session but maybe it’ll be a bit like that, without the tortilla chips or wine. Join us. Link to the app here.

Simon Ricketts, 23 October 2021

Personal views, et cetera

Extract from photo by Angèle Kamp , courtesy Unsplash.

On Reshuffle Day, In Another Part Of The Forest

“If a tree falls in a forest and no one is around to hear it, does it make a sound?”

Maybe the biggest news this week wasn’t the replacement of Robert Jenrick by Michael Gove as Secretary of State for Housing, Communities and Local Government and the consequent likely pause of the still-paused-anyway planning law reforms.

Maybe it was the difficulties which the Government is having with its Environment Bill (original progenitor one M Gove). Aspirations of enactment by the time of November’s COP26 are surely fading fast in the light of a series of defeats for the Government at the report stage of the Bill in the House of Lords. On Monday (13 September 2021) it was already being reported in a Green Alliance blog post, on the back of a Daily Telegraph story, that the Government was reluctant to accept the amendments which had been passed which could ultimately lead to the Bill entering into a period of ping pong (less fun than it sounds) between the Lords and Commons.

The amendments at that stage were reported in this piece: Environment Bill: The 10 government defeats in the Lords (ENDS Report, 14 September 2021). They include:

– making interim targets for nature, air, water and waste legally binding;

– requiring the Government to make a formal declaration of a biodiversity and climate emergency;

– a more ambitious approach to targets in air pollution;

– making soil health a priority;

– removing exemptions for the Treasury and Ministry of Defence from taking into account environmental principles in policy making.

However, on the day of the reshuffle, 15 September 2021 the Lords continued its scrutiny of the Bill and inflicted a further four defeats by way of voting for amendments which in various ways seek to introduce greater environmental protections. Two of the issues are intertwined with matters to do with planning and development and I thought I would give them a bit of airtime – after all, these days can you be a planning lawyer without being an environmental lawyer? And surely DEFRA and MHCLG are going to have to work with each other in ever closer ways.

Habitats Regulations: limits on powers to amend

Baroness Young, chair of the Woodland Trust and former chief executive of the Environment Agency, moved an amendment to ensure “that powers to amend the Habitats Regulations may only be used for the purposes of environmental improvement following consultation. It ensures that the level of environmental protection that must be maintained includes protection for important habitats, sites and species as well as overall environmental protection”

It was passed 201 to 186.

The amendment provides that the Secretary of State may only amend the regulations

“for the purposes of—

(a) securing compliance with an international environmental obligation, or

(b) contributing to the favourable conservation status of species or habitats or the favourable condition of protected sites;

(c) if the regulations do not reduce the level of protection provided by the Habitats Regulations, including protection for protected species, habitats or sites; and

(i) following public consultation and consultation with—

(ii) the Office for Environmental Protection,

(iii) Natural England,

(iv) the Joint Nature Conservation Committee, and

(v) other relevant expert bodies.”

Duty to implement an enhanced protection standard for ancient woodland in England

Baroness Young moved an amendment “intended to address the more than 800 ancient woodlands in England that are currently threatened by development. As a large number of these threats result from indirect effects of development next to ancient woodland, these changes will improve the weight afforded to protecting these irreplaceable habitats in planning policy.”

It was passed 193 to 189.

The amendment introduces the following additional clause into the Bill:

(1) The Government must implement an enhanced protection standard for ancient woodland, hereafter referred to as the “ancient woodland standard” in England as set out in subsections (2), (3) and (4) and this must have immediate effect.

(2) The ancient woodland standard must set out the steps necessary to prevent further loss of ancient woodland in England.

(3) The ancient woodland standard commits the Government to adopting a Standard of protection which must be a requirement for all companies, persons or organisations involved in developments affecting ancient woodlands in England.

(4) This standard must be that—

(a) any development that causes direct loss to ancient woodland or ancient woodland and ancient and veteran trees must be refused unless there are wholly exceptional reasons and, in addition, a suitable compensation strategy must be in place prior to development commencing,

(b) any development adjacent to ancient woodland must incorporate a minimum 50-metre buffer to provide protection, reduce indirect damage and provide space for natural regeneration,

(c) any ancient or veteran trees must be retained within a development site, including a root protection area and appropriate buffer zone.

(5) This buffer zone must be whichever is greater of—

(a) an area which is a radius of 15 times the diameter of the tree with no cap, or

(b) 5 metres beyond the crown.”

The debate is here and Parliament’s summary of the House of Lords report stage is here.

(Incidentally, Ruth Keating (39 Essex Chambers) gave a very clear summary of the Environment Bill at today’s (virtual) Joint Planning Law Conference. Watch out for the paper in due course.)

As a further indication of how environmental matters are going to take centre stage in coming months, Duncan Field brought to my attention yesterday that Lord Frost made a statement to the House of Lords (16 September 2021) as to the Government’s approach in relation to various areas of retained EU law. A supporting paper, Brexit opportunities: regulatory reforms contains references which may be of interest to those in the planning and environmental areas:

“Environmental Licencing [sic] and Permitting – Defra is continuing to rationalise the existing Environmental licensing and permitting (ELP) regimes so they are more streamlined and easier for businesses and users to navigate, whilst maintaining and even enhancing environmental protections.

Promote a flexible, market-based trading system for biodiversity offset credits – Biodiversity Net Gain (BNG) is a critical part of Defra’s strategy for enhancing the natural environment and promoting sustainable growth. Defra will shortly be publishing a consultation on our plans for implementing BNG. This consultation will include proposals for a market-based approach to delivery of biodiversity offset units.”

That latter is interesting in the context of the biodiversity net gain provisions within the Environment Bill, which do not currently refer explicitly to any notion of a structured “market-based trading system for biodiversity offset credits”.

Keep your ears open is all I’m saying…

Simon Ricketts, 17 September 2021

Personal views, et cetera

And on the theme of ears, do join our clubhouse Planning Law Unplanned event at 6pm this Tuesday 21 September 2021, whether to listen or participate. We will be returning to the big news story and associated question – “ALL SYSTEMS GOVE! What to expect from our new Secretary of State?”. We have a planoply of leading commentators lined up to give their views including Catriona Riddell, Matthew Spry, Zack Simons, Wyn Evans and Nick Cuff as well as our usual planel. Link to app here.

Photograph by Michael Aleo courtesy of unsplash

Thanks to my colleague Stephanie Bruce-Smith for some background research. All errors mine.

‘Twas The Week Before Recess

The House of Commons and House of Lords both rise on 22 July 2021 and are due to return on 6 September 2021, which means that each year this week and next we always see many documents published and announcements made. Much festivity.

This week last year the Planning White Paper was eagerly awaited of course but ran late, eventually being published in the first week of August. At one stage we had expected an update by the Government on progress by now, including its response to last year’s consultation process but Robert Jenrick announced back at the beginning of the month that we will not see this until the Autumn and there will be no Bill until some time after that. (For a summary of MHCLG’s current priorities, see his 6 July 2021 speech to the Local Government Association, or indeed Nicola Gooch’s 16 July 2021 blog post on the speech).

But there have already been various other announcements and publications and in this post I will just pick randomly from them, Quality Street style.

Of particular interest is the Department for Transport’s Transport Decarbonisation Plan (14 July 2021) which sets out the road map (no, wrong expression) for reducing transport’s greenhouse gas emissions to net zero. It is a turbo-charged (no, wrong expression), “high ambition”, plan covering all modes of transport. There is a wide-ranging series of commitments over 220 pages of text.

What is there that directly refers to the planning system? Aside from confirmation that the Government will be reviewing the National Networks National Policy Statement, there is a wider commitment to “embed transport decarbonisation principles in spatial planning and across transport policymaking“. Pages 156 to 160 address this in detail and I am going to no more than set out below large sections of this section:

“…The planning system has an important role to play in encouraging development that promotes a shift towards sustainable transport networks and the achievement of net zero transport systems.

Traffic issues have often caused opposition to housebuilding. There is a legacy of developments that give people few alternatives to driving, are difficult to serve efficiently by public transport and are laid out in ways which discourage walking and cycling. Developments which are planned to minimise car use, promote sustainable transport choices, and are properly connected to existing public transport could help make new building more publicly acceptable.

The National Planning Policy Framework (NPPF) makes clear we already expect sustainable transport issues to be considered from the earliest stages of plan-making and development proposals, so that opportunities to promote cycling, walking and public transport are pursued. Planning policies should already provide for high quality cycling and walking networks and supporting facilities such as cycle parking (drawing on Local Cycling and Walking Infrastructure Plans). The NPPF also outlines that new developments should promote sustainable transport, taking opportunities to promote walking, cycling and public transport. However, while many local plans already say the right things, they are not always followed consistently in planning decisions. Developments often do little or nothing meaningful to enable cycling and walking, or to be properly and efficiently accessible by public transport. Sometimes they make cycling and walking provision worse. We can and must do better.

Last summer, the Government set out its vision for a new and improved planning system in the Planning for the Future White Paper, a vision to make good on the Government’s pledge to build back better, build back faster and build back greener. The White Paper set out how the planning system is central to our most important national challenges, including combating climate change and supporting sustainable growth.

A reformed planning system can assist in achieving the ambition of a zero emission transport future. The planning reforms will provide an opportunity to consider how sustainable transport is planned for and importantly how it is delivered to support sustainable growth and drive more sustainable use of our existing built environment e.g. planning for new development around existing transport hubs, for all developments to be easily and safely accessible and navigable by foot and cycle, and to make existing cycling and walking provision better. Through good design and proper consideration of the needs of our communities, we can better connect people, making communities more accessible, inclusive, safe, and attractive as well as promoting the principles of 20-minute neighbourhoods. We are working with the Ministry of Housing, Communities & Local Government and the Local Government Association to place cycling, walking and public transport provision at the heart of local plan making and decision taking for new developments. In doing so, we recognise the particular challenges faced by rural and remote areas in this regard, and will work, including through the upcoming Future of Transport: Rural Strategy, to ensure policies recognise differing geographies.

The National Model Design Code sets out a process for developing local design codes and guides, with supporting design guidance on movement and public spaces including streets. It outlines an expectation that development should consist of a well-connected network of streets with good public transport and an emphasis on active travel modes including walking and cycling. Building on this, we will also ensure that an updated Manual for Streets aligns with these principles and is routinely used for plan making and decision taking to secure better outcomes for our streets and public realm. These documents can play a key role in delivering high quality, accessible, secure and safe cycle storage. We will work with Active Travel England and other key stakeholders to ensure that the importance of securing high quality cycling and walking provision is embedded within the planning system.

We recognise that the Government has a role in helping Local Planning and Highways Authorities to better plan for sustainable transport and develop innovative policies to reduce car dependency. We need to move away from transport planning based on predicting future demand to provide capacity (‘predict and provide’) to planning that sets an outcome communities want to achieve and provides the transport solutions to deliver those outcomes (sometimes referred to as ‘vision and validate’). We will continue to work with MHCLG to identify how we can best support local authorities to develop innovative sustainable transport policies as part of the planning process, how this can be used to better assess planning applications, and better monitor local transport outcomes to deliver on our ambitions for sustainable transport use.

Achieving these ambitions will require a long-term collective effort across government, local authorities, communities, businesses, and developers. We are exploring with MHCLG how the planning system can be designed to facilitate better collaboration and planning for growth across local authority boundaries, with all key stakeholders involved, to ensure that we align that growth with both strategic and local infrastructure delivery to make good on our manifesto commitment to put infrastructure first and drive growth sustainably.”

The next day, 15 July 2021, we had the Prime Minister’s florid Levelling Up speech, although for actual announcements it might be better to go straight to, for example, a press statement issued the same day: PM sets out new ‘County Deals’ to devolve power to local communities in Levelling Up speech (15 July 2021).

“New ‘County Deals’ to take devolution beyond the largest cities, offering the rest of England the same powers metro mayors have gained over things like transport, skills and economic support.

County Deals will be bespoke to the needs of individual places, bringing decisions closer to people and places, potentially allowing more places to benefit from strong, high profile local champions. County Deals will give places the tools they need to pilot new ideas, create jobs, drive growth and improve public services.

Further detail will be set out in the Levelling Up White Paper, but as the Prime Minister set out, county deals will not be one size fits all, and government will take a flexible approach to allow more places to agree devolution.”

The same day there was also the press statement Government strategy to regenerate high streets (MHCLG, 15 July 2021), with various announcements, including the publication of Build Back BHS – apologies: Build Back Better High Streets. Compulsory purchase practitioners will be interested to see this passage:

“We are […] encouraging councils to use Compulsory Purchase Orders (CPOs) for long-term empty properties and where property owners are stalling regeneration plans. We want to:

• Ensure councils have the right Compulsory Purchase Order enabling powers to support the transformation of high streets and other regeneration projects so that they can acquire vacant and derelict buildings in order to attract new private investment.

• Ensure as part of our planning reforms that Compulsory Purchase Orders can support more effective land assembly to facilitate the development of growth areas identified in the new-style local plans, particularly when they support town centre regeneration.

• Strengthen the capacity and support for local authorities to ensure they are able to use these new Compulsory Purchase Order powers and rights to support the transformation of high streets.”

As regards the conversion of high streets to homes, the following passage was eyebrow raising. So how would this work with the operation of permitted development rights then? And the provision of “green infrastructure” a justification for development intensification?

“Where high streets are being repurposed for homes, green infrastructure and improved public space should be integral. We will explore how reforms to the planning system can ensure green infrastructure is better incorporated into new development. Development of homes, businesses and community space could be intensified on parts of sites to free up land for green infrastructure provision.”

And just to keep practitioners on their toes, there was the Planning Inspectorate’s announcement Plans to resume in-person events (15 July 2021). In one part of the policy forest there’s the transport decarbonisation plan, in another part, brmm brmm, off we go back to in person inquiries from 13 September:

“For hearings and inquiries taking place from 13 September we will be reverting to the pre-pandemic approach of them being arranged by local authorities. In-person events will be possible, but where participants (including the inspector) need to present their evidence or participate virtually this will need to be facilitated by the local authority.

Where in-person elements are planned, the local authority will need to be prepared for the event to be held fully virtually in case pandemic restrictions change.”

Let’s see what more announcements the coming week brings…

Simon Ricketts, 16 July 2021

Personal views, et cetera

This week’s clubhouse Planning Law Unplanned session (6pm Tuesday 20 July) is on the theme “A Green Recovery”: what does it mean; what opportunities? Lucy Wood (Barton Willmore) will lead the session, which will take a good hard look at the government’s green policy agenda (including the transport decarbonisation plan) and what it means for business, councils and communities, alongside special guests including Neil Collar (Brodies) and others still to be confirmed. An invitation to the app and event is here.

Beautiful Day

I threw those curtains wide, drinking in the morning emails and there it was: MHCLG press release 30 January 2021, All new developments must meet local standards of beauty, quality and design under new rules.

Consultation is now running until 27 March 2021 on:

National Planning Policy Framework and National Model Design Code: consultation proposals

National Planning Policy Framework Draft text for consultation

Draft national design code

Guidance notes on design codes

The proposals seek to give effect to the Building Better Building Beautiful Commission’s recommendations that I summarised in my 1 February 2020 blog post Beauty Duty.

“The National Model Design Code is intended to form part of the government’s planning practice guidance. It is not a statement of national policy. However, once finalised, the government recommends that the advice on how to prepare design codes and guides is followed.”

I will leave others to comment on the draft national design code and the proposed “beauty” related changes to the NPPF (the consultation proposals identify the changes and the draft revised text is helpfully marked-up to show all the textual changes).

However, you should note that the draft NPPF changes go wider:

“We have also taken this opportunity to make a number of environment-related changes, including amendments on flood risk and climate change. The amendments also include a small number of very minor changes arising from legal cases, primarily to clarify the policy. A few minor factual changes have also been made to remove out-of-date text (for example, the early thresholds for the Housing Delivery Test), to reflect a recent change made by Written Ministerial Statement about retaining and explaining statues, and an update on the use of Article 4 directions.”

As summarised in the consultation proposal, the draft revised text:

• Implements policy changes in response to the Building Better Building Beautiful Commission recommendations

• Makes a number of changes to strengthen environmental policies – including those arising from our review of flood risk with Defra

• Includes minor changes to clarify policy in order to address legal issues

• Includes changes to remove or amend out of date material

• Includes an update to reflect a recent change made in a Written Ministerial Statement about retaining and explaining statues.

• Clarification on the use of Article 4 directions

Some points that immediately leapt out (this is not a comprehensive list):

Overarching objectives of the planning system

Paragraph 8 of the NPPF has been amended to refer to refer to “beautiful, well-designed and safe places” (previously “a well-designed and safe built environment”).

The presumption in favour of sustainable development

Paragraph 11 (a) has been amended to read:

“all plans should promote a sustainable pattern of development that seeks to: meet the development needs of their area; align growth and infrastructure; improve the environment; mitigate climate change (including by making effective use of land in urban areas) and adapt to its effects”.

(The previous wording was “plans should positively seek opportunities to meet the development needs of their area, and be sufficiently flexible to adapt to rapid change”).

Article 4 directions

“We also propose clarifying our policy that Article 4 directions should be restricted to the smallest geographical area possible. Together these amendments would encourage the appropriate and proportionate use of Article 4 directions.”

This is really interesting, particularly in the context of the proposed class E to C3 permitted development right. The proposed wording is pretty tight:

“The use of Article 4 directions to remove national permitted development rights should

• where they relate to change of use to residential, be limited to situations where this is essential to avoid wholly unacceptable adverse impacts

• [or as an alternative to the above – where they relate to change of use to residential, be limited to situations where this is necessary in order to protect an interest of national significance]

• where they do not relate to change of use to residential, be limited to situations where this is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 directions to require planning permission for the demolition of local facilities)

• in all cases apply to the smallest geographical area possible.”

Larger scale residential proposals

There is an amendment to paragraph 73 to require that these should include “a genuine choice of transport modes”.

Isolated homes in the countryside

The design should now be “outstanding”. The “or innovative” is gone.

Affordable home ownership

“Paragraph 64 has been amended to clarify that, where major development involving the provision of housing is proposed, planning policies and decisions should expect at least 10% of the total number of homes to be available for affordable home ownership. This is to address confusion as to whether the 10% requirement applies to all units or the affordable housing contribution.”

Neighbourhood plan allocations

“Paragraph 69 has been amended to remove any suggestion that neighbourhood plans can only allocate small or medium sites. This was not the policy intention, so the wording has therefore been amended to clarify that neighbourhood planning groups should also give particular consideration to the opportunities for allocating small and medium-sized sites (of a size consistent with paragraph 68a) suitable for housing in their area.”

Trees

A new paragraph 130:

“Trees make an important contribution to the character and quality of urban environments, and can also help mitigate and adapt to climate change. Planning policies and decisions should ensure that new streets are tree-lined [Unless, in specific cases, there are clear, justifiable and compelling reasons why this would be inappropriate], that opportunities are taken to incorporate trees elsewhere in developments (such as community orchards), that appropriate measures are in place to secure the long- term maintenance of newly-planted trees, and that existing trees are retained wherever possible. Applicants and local planning authorities should work with local highways officers and tree officers to ensure that the right trees are planted in the right places, and solutions are found that are compatible with highways standards and the needs of different users.”

The “well-designed” test

Paragraph 133:

“133. Development that is not well designed should be refused, especially where it fails to reflect local design policies and government guidance on design, taking into account any local design guidance and supplementary planning documents which use visual tools such as design guides and codes. Conversely, significant weight should be given to:

a) development which reflects local design policies and government guidance on design, taking into account any local design guidance and supplementary planning documents which use visual tools such as design guides and codes; and/or

b) outstanding or innovative designs which promote high levels of sustainability,, or help raise the standard of design more generally in an area, so long as they fit in with the overall form and layout of their surroundings.”

Development affecting the setting of national parks and AONBs

“New paragraph 174 has been amended in response to the Glover Review of protected landscapes, to clarify that the scale and extent of development within the settings of National Parks and Areas of Outstanding Natural Beauty should be sensitively located and designed so as to avoid adverse impacts on the designated landscapes.”

Historic statues, plaques and memorials

(which was going to be the subject of this week’s blog post until the curtains/drinking in the emails moment)

“New paragraph 196 has been added to clarify that authorities should have regard to the need to retain historic statues, plaques or memorials, with a focus on explaining their historic and social context rather than removal, where appropriate.”

This of course supplements Robert Jenrick’s statement to the House of Commons (18 January 2021) and MHCLG’s 17 January 2021 press statement, New legal protection for England’s heritage.

As a draft for consultation in my view the consultation material so far has only limited weight for decision makers and, as is usually and appropriately the case, the final documents may be subject to change. However, there is much for us all to get to grips with – and comments on the national design code are for another day.

Simon Ricketts, 30 January 2021

Personal views, et cetera

Judges & Climate Change

Over Christmas, I finally read Joshua Rozenberg’s 2020 book Enemies of the People? How Judges Shape Society.

The book examines the tension inevitably faced by judges in interpreting the law, particularly in areas of public controversy (constitutional issues; “right to death”; family; discrimination; religion; privacy; access to justice): when should the application of common law principles (i.e. rules developed over time by the courts through the doctrine of precedent, as to matters not resolved by legislation) and changing expectations in society as to minimum rights that we should enjoy (a question legitimised to some extent, and in relation to some issues, by principles of statutory interpretation required under the Human Rights Act) lead judges to “make” law? And can Parliament prevent the Judiciary from constraining the Executive’s actions and decision making on particular issues, by way of ouster provisions in legislation?

Rozenberg:

“Ultimately, the British constitution relies on a delicate balance between the executive, the legislature and the judiciary: all three powers of the state must demonstrate good judgment if we are to be governed under the rule of law”.

The book is also essential background to the current Faulks review of administrative law (see my 12 September 2020 blog post).

The squeals come from those on the wrong side of rulings (of course with litigation that goes with the territory) or who choose to see the issues in too simplistic terms.

“Enemies of the people” was of course the infamous Daily Mail headline following the Supreme Court’s judgment in Miller (no 1). To my mind the press release by campaign group Plan B following R (Friends of the Earth Limited) v Heathrow Airport Limited (Supreme Court, 16 December 2020) was at least as bad:

“**Latest news – the Supreme Court betrays us all with its treasonous reversal of the Court of Appeal’s judgement.**

The next edition of Rozenberg’s book surely needs to include a chapter on environmental and climate change issues. The Supreme Court was not “treasonous”! It is appalling and Trumpian to suggest it.

Heathrow

I do not consider that the Supreme Court’s reversal of the Court of Appeal’s ruling – holding that at the time the Secretary of State for Transport designated the Airports National Policy Statement in June 2018 the emissions reductions targets in the Paris Agreement had not formed part of government policy on climate change – was at all unexpected. Its conclusion was based on a plain, detailed, analysis of the position as at that date. My 7 March 2020 blog post on the Court of Appeal ruling can now be consigned to the scrap heap but I did, perhaps too politely, describe the ruling as “surprising” and say that it was “not obvious to me that the Court of Appeal’s conclusions would be safe against an appeal to the Supreme Court”! The Supreme Court sided with the initial findings of Holgate J and Hickinbottom LJ, sitting as a Divisional Court, at first instance.

Planning Court liaison judge Holgate J has a central role in this developing area of case law, revolving around the application of emissions reduction targets in the Climate Change Act 2008 – both sitting alone and as part of a Divisional Court (Whilst usually High Court cases are presided over by a single judge, in particularly important or complex cases the High Court can choose to sit as a Divisional Court, with a High Court judge and a Court of Appeal judge sitting together).

HS2

Earlier in the year, Court of Appeal, in R (Packham) v Secretary of State (Court of Appeal, 31 July 2020) , upheld the first instance rejection by Holgate J and Coulson LJ (also sitting as a Divisional Court) of Chris Packham’s challenge to the Government’s decision to continue with the HS2 project following the review carried out by Douglas Oakervee.

The Court of Appeal:

“ground 3b is whether the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050, in the light of the Government’s obligations under the Paris Agreement and the Climate Change Act 2008.”

“In our view it is impossible to infer from the report any failure by the panel to have regard to the Government’s relevant statutory and policy commitments on climate change. And the Government did not demonstrably commit any such error in making its decision. On this point too, we agree with the Divisional Court. There is nothing to show that the Government either ignored or misunderstood the legal implications of proceeding with HS2 for its obligations relating to climate change, including those arising from the Paris Agreement and under the provisions of the Climate Change Act.”

“… the Oakervee review was not an exercise compelled, or even provided for, in any legislation relating to climate change, in any legislation relating to major infrastructure, or in any legislation at all. It finds no place in the arrangements set in place by the Climate Change Act. Nor does it belong to any other statutory scheme, such as the Planning Act, in which the consequences of major infrastructure development for climate change are explicitly provided for as a necessary feature of decision-making. The same goes for the Government’s own decision on the future of HS2.”

Drax

Following a hearing in November 2020, judgment is yet to be handed down by the Court of Appeal in ClientEarth v Secretary of State, where at first instance Holgate J rejected a challenge to the Drax power station DCO.

Horse Hill

Holgate J handed down judgment last month in another climate change case, R (Finch) v Surrey County Council (Holgate J, 21 December 2020).

This was a challenge to a planning permission granted by Surrey County Council to retain two oil wells at Horse Hill, Hookwood, Horley, Surrey and to drill four new wells, for the production of hydrocarbons over a period of 25 years.

The main issue was “whether a developer’s obligation under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 571) (“the 2017 Regulations”) to provide an environmental statement (“ES”) describing the likely significant effects of a development, both direct and indirect, requires an assessment of the greenhouse gas (“GHG”) emissions resulting from the use of an end product said to have originated from that development.” Should the environmental statement in relation to the project have assessed the greenhouse gases “that would be emitted when the crude oil produced from the site is used by consumers, typically as a fuel for motor vehicles, after having been refined elsewhere.” Was that an indirect effect of the development?

Holgate J:

“The UK Government’s fundamental objective in relation to climate change is enshrined in s.1(1) of the Climate Change Act 2008 (“CCA 2008”) which, as amended with effect from 27 June 2019, imposes a duty on the Secretary of State to ensure that the net UK carbon account for 2050 is at least 100% lower than the 1990 baseline. This is generally referred to as “the net zero target“.

It goes without saying that the extraction of crude oil resulting in the supply of fuel will result in GHG emissions when that end product is used. It is common ground that that is addressed by Government policy on climate change and energy, aimed inter alia at reducing the use of hydrocarbons. The issue raised in the present challenge is whether, by virtue of the 2017 Regulations, it was necessary for the planning authority to go further than apply those policies in its decision on whether to grant planning permission for the development, by requiring those GHG emissions to be estimated and assessed as part of the Environmental Impact Assessment (“EIA”) of the development.”

“In my judgment, the fact that the environmental effects of consuming an end product will flow “inevitably” from the use of a raw material in making that product does not provide a legal test for deciding whether they can properly be treated as effects “of the development” on the site where the raw material will be produced for the purposes of exercising planning or land use control over that development. The extraction of a mineral from a site may have environmental consequences remote from that development but which are nevertheless inevitable. Instead, the true legal test is whether an effect on the environment is an effect of the development for which planning permission is sought. An inevitable consequence may occur after a raw material extracted on the relevant site has passed through one or more developments elsewhere which are not the subject of the application for planning permission and which do not form part of the same “project”.

The inevitability that the crude oil to be transported off site will eventually lead to additional GHG emissions when the end product is consumed is simply a response to the defendant’s point that when the oil leaves the site it becomes an indistinguishable part of the international oil market, so that the GHG emissions generated by combustion in vehicles cannot be attributed to any particular oil well or well site. Like the debate between the witness statements as to whether the oil produced on the site would only displace oil production elsewhere or would instead increase overall net consumption, these are forensic arguments about the market consequences of extracting oil at the site which do not address the real legal issues raised by ground 1(a).”

“Although it is not essential to my conclusions on this challenge, I should record in passing that I do not accept the proposition that there are no other measures in place within the UK for assessing and reducing GHG emissions from the combustion of oil products in motor vehicles. The measures include the net zero target in the CCA 2008, and the various matters referred to in [46] to [54] above. The overall responsibility for the economy-wide transition to a low carbon society is the responsibility of the UK Government (Packham at [87]). A range of measures is being pursued to achieve a reduction in the consumption of oil products including road pricing, taxation and future controls on the source of energy which may be used by vehicles. The object of these measures is to reduce substantially the demand for diesel and petrol from UK consumers.

The claimant fairly says that these measures do not affect the consumption of oil products by consumers in other countries. But, on the other hand, the Paris Agreement was signed by many countries throughout the world and it is the responsibility of each such country to determine its contribution to achieving the global target for 2050. Whether these issues are thought to be adequately addressed in other countries, or even in the UK, can provide no guide to the interpretation of our domestic legislation on EIA for the consenting of new development.”

“Essentially, development control and the EIA process are concerned with the use of land for development and the effects of that use. They are not directed at the environmental effects which result from the consumption, or use, of an end product, be it a manufactured article or a commodity such as oil, gas or electricity used as an energy source for conducting other human activities.”

A decision the other way clearly could have had very wide implications – a good example of the boundary between making law and interpreting it.

Campaign groups have of course long used litigation as a means of applying political pressure for change. That is a particular feature of the climate change area, with existing campaign groups such as Friends of the Earth, Greenpeace and ClientEarth, now joined by the likes of Plan B, the Good Law Project and Rights : Community : Action.

NPSs

The Good Law Project had brought legal proceedings seeking to require the Government to review its energy national policy statements to reflect current climate change targets. Whether or not as a result of those proceedings, the Government has now confirmed that it will do exactly that in its Energy white paper, Powering our net zero future (14 December 2020)

“We will complete a review of the existing energy National Policy Statements (NPS), with the aim of designating updated NPS by the end of 2021.

The suite of energy NPS establish the need for new energy infrastructure and set out a framework for the consideration of applications for development consent. We have decided that it is appropriate to review the NPS, to ensure that they reflect the policies set out in this white paper and that we continue to have a planning policy framework which can deliver the investment required to build the infrastructure needed for the transition to net zero. Work on this review will start immediately, with the aim of designating updated NPS by the end of 2021.

This white paper shows that the need for the energy infrastructure set out in energy NPS remains, except in the case of coal-fired generation. While the review is undertaken, the current suite of NPS remain relevant government policy and have effect for the purposes of the Planning Act 2008. They will, therefore, continue to provide a proper basis on which the Planning Inspectorate can examine, and the Secretary of State can make decisions on, applications for development consent. Nothing in this white paper should be construed as setting a limit on the number of development consent orders which may be granted for any type of generating infrastructure set out in the energy NPS. Other restrictions outside the planning regime (in particular the Emissions Performance Standard) mean that no new coal infrastructure projects can come forward.”

Following the Supreme Court’s ruling in the Heathrow case, the Good Law Project’s focus immediately turned to the Airports National Policy Statement. On 18 December 2020 a pre-action protocol letter was sent to the Secretary of State for Transport, requesting that he:

“(i) considers whether it is appropriate to review the Airports National Policy Statement on new runway capacity and infrastructure at airports in the South East of England (NPS) pursuant to section 6 of the Planning Act 2008 (PA 2008); and

(ii) considers whether it is appropriate to suspend all or part of the ANPS pursuant to section 11 of the PA 2008”

in the light, amongst other things, of “significant changes in the science and domestic policy on Climate Change” since the designation of the policy statement in June 2018. A response was requested by 18 January 2021.

In the wake of the Heathrow judgment, Plan B was reported as considering bringing a claim in the European Court of Human Rights. That would in my view be an uphill struggle, particularly at this policy setting rather than development consent stage, although of course it is interesting to see how climate change human rights law has been developing – see for example the Dutch Supreme Court judgment in the Urgenda case (the background is set out in my 28 September 2019 blog post Urgent Agenda/Urgenda written after the Dutch Court of Appeal’s ruling in that case, upheld by the Dutch Supreme Court). Based on articles 2 and 8 of the European Convention on Human Rights, the court ordered that the state was to reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990.

The Bingham road-map

I’ll end by quoting again from Rozenberg’s book, where he sets out Lord Bingham’s “road-map” of warning signs which should be heeded by judges who are considering making new law:

1. where reasonable and right-minded citizens have legitimately ordered their affairs on the basis of a certain understanding of the law;

2. where, although a rule of law is seen to be defective, its amendment calls for a detailed legislative code, with qualifications, exceptions and safeguards which cannot feasibly be introduced by judicial decisions;

3. where the question involves an issue of current social policy on which there is no consensus within the community;

4. where an issue is the subject of current legislative activity;

5. where the issue arises in a field far removed from ordinary judicial experience.

Discuss!

Simon Ricketts, 9 January 2021

Personal views, et cetera

What Are The Non-Airport Implications Of The Heathrow Ruling?

The Court of Appeal’s approach to the issues in the Heathrow cases last month was certainly a surprise to many.

The court found in the main “Plan B” ruling (27 February 2020) that the Secretary of State had acted unlawfully when, following the procedure in section 5 of the Planning Act 2008, on 26 June 2018 he designated the Airports National Policy Statement. The court’s basis for its finding was that the Secretary of State had not complied with section 5(8):

“(7) A national policy statement must give reasons for the policy set out in the statement.

(8) The reasons must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.”

The question was what was “Government policy” in relation to climate change as at 26 June 2018. The court found that the Secretary of State had acted unlawfully in not taking into account “its own firm policy commitments on climate change under the Paris Agreement”.

This is somewhat surprising given that at first instance the Divisional Court (Hickinbottom LJ and Holgate J, no slouches) had found that this submission was unarguable:

“In our view, given the statutory scheme in the [Climate Change Act 2008] and the work that was being done on if and how to amend the domestic law to take into account the Paris Agreement, the Secretary of State did not arguably act unlawfully in not taking into account that Agreement when preferring the NWR Scheme and in designating the ANPS as he did. As we have described, if scientific circumstances change, it is open to him to review the ANPS; and, in any event, at the DCO stage this issue will be re-visited on the basis of the then up to date scientific position.” (paragraph 648 of the main judgment at first instance, known as “Spurrier” after the then first claimant, who had represented himself at first instance but had dropped out by the time of the appeal, which is why you will hear the appeal ruling called “Plan B” after the lead appellant, campaign group Plan B Earth).

(For a wider summary of the proceedings at first instance see my 4 May 2019 blog post Lessons From The Heathrow Cases).

The Court of Appeal has ordered that the Airports National Policy Statement “is of no legal effect unless and until the Secretary of State has undertaken a review of it in accordance with the relevant provisions of the Planning Act 2008.”

Heathrow Airport Limited has applied to the Supreme Court to appeal from the ruling although the Secretary of State has not (meaning that any appeal could be fairly irrelevant if the Secretary of State decides to review the NPS in any event). Whether permission to appeal is granted depends on whether the Supreme Court considers that there is an arguable point of law of general public importance.

So this is all significant as regards the proposal for a third runway at Heathrow. According to the Planning Inspectorate website the application for a development consent order under the Planning Act 2008 NSIP procedure is/was expected to be submitted in Q4 2020.

The main function of the NPS was to give formal national policy support to the proposal at Heathrow. The way that the Planning Act 2008 works is that, under section 104, the Secretary of State must decide a DCO application in accordance with any relevant national policy statement “except to the extent that one or more of subsections (4) to (8) applies.

(4) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the United Kingdom being in breach of any of its international obligations.

(5) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the Secretary of State being in breach of any duty imposed on the Secretary of State by or under any enactment.

(6) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would be unlawful by virtue of any enactment.

(7) This subsection applies if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits.

(8) This subsection applies if the Secretary of State is satisfied that any condition prescribed for deciding an application otherwise than in accordance with a national policy statement is met.

(9) For the avoidance of doubt, the fact that any relevant national policy statement identifies a location as suitable (or potentially suitable) for a particular description of development does not prevent one or more of subsections (4) to (8) from applying.”

So the first thing to note is that the NPS would not have given Heathrow Airport Limited a free pass to a consent – in determining the application the Secretary of State would need to determine whether, notwithstanding the June 2018 NPS, the proposal is not in accordance with, for instance, up to date treaty obligations or domestic legislation – exactly the point made by the Divisional Court in the passage I quoted earlier.

This is relevant because the issue in the Heathrow cases very much turned on an historical question – what was the Government’s climate change policy as at 26 June 2018. Legislation and policy has plainly moved on since then, and will continue to move on. I referred in my 10 August 2019 blog post The Big CC to Theresa May’s tightening in June 2019 of the Government’s commitment to reduce greenhouse gas emissions, by making the Climate Change Act 2008 (2050 Target Amendment) Order 2019 which changed the duty of the Secretary of State under the Climate Change Act 2008 from being to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline, to being at least 100% lower, ie net zero. The target does not include international aviation or shipping: paragraph 10.5 of the explanatory notes published with the order states that there is a “need for further analysis and international engagement through the international networks. For now, therefore we will continue to leave headroom for emissions from international aviation and shipping in carbon budgets…” By the time that any Heathrow DCO application is to be/would have been determined, the Secretary of State would have to take into account climate change legislation and international commitments at the time.

It can all of course get messy/political, as demonstrated by former Energy Secretary Andrea Leadsom’s approval last year, against her inspectors’ recommendations, of the Drax gas-fired power stations DCO, a decision which is now being challenged in the High Court by ClientEarth (see Drax legal case: We’re taking the UK government to court over Europe’s largest gas plant, ClientEarth, 30 January 2020).

Although it would be a risky strategy to adopt, given it would entail acknowledging loss of any formal statutory policy support for Heathrow as the favoured option, Heathrow Airport could in theory decide to proceed with a DCO application without the support of an NPS (this appears to be Gatwick’s strategy with its proposed northern runway). In the absence of an NPS, section 105 applies:

“(2) In deciding the application the Secretary of State must have regard to—

(a) any local impact report (within the meaning given by section 60(3)) submitted to the Secretary of State before the deadline specified in a notice under section 60(2),

(b) any matters prescribed in relation to development of the description to which the application relates, and

(c) any other matters which the Secretary of State thinks are both important and relevant to the Secretary of State’s decision.”

How even to begin to scope the appropriate approach to decision-making in that situation…

Any wider relevance?

So does this ruling have repercussions away from Heathrow and airports?

People threaten to bring judicial review proceedings, and often end up bringing them for all sorts of reasons. Lord Reed, President of the Supreme Court, made some topical comments to the House of Lords Constitution Committee last week:

“Judges are very well aware of the risk of challenges being brought in what are political rather than legal grounds. They are repelling them and are careful to avoid straying into what are genuine political matters. When this is a matter that is to be considered it should not start from the premise that judges are eager to pronounce on political issues. The true position is actually quite the opposite.” (Law Society Gazette, 4 March 2020).

Since the ruling we have seen these stories:

⁃Environmentalists follow Heathrow ruling by calling on government to end fossil fuel developments (Ecotricity, 4 March 2020) (The Secretary of State has a discretion in section 6 of the 2008 Act as to whether and when to review NPSs, and indeed since June 2019 Government climate change targets have been clear regardless of what the position was at June 2018 – which is surely the only relevance of the Heathrow rulings – if the point made by the prospective claimants is a good one, it has been a good one for some time now).

⁃HS2 legal challenge launched by Chris Packham (Guardian, 3 March 2020) (There is surely no duty on a minister to take into account Government climate change targets in making a decision to continue with the construction of an existing project which has already, phase 1 at least, been authorised by Parliament).

What did it for the Secretary of State in relation to the Heathrow NPS was the specific statutory duty to take into account “government policy” on climate change mitigation and adaptation.

Regardless of whether the Court of Appeal was right to determine that Government support for the Paris Agreement (international) targets could be construed as government policy for any particular domestic targets, there is not the same statutory duty when it comes to the Town and Country Planning Act system.

When it comes to plan-making, section 19(1A) of the Planning and Compulsory Purchase Act 2004 imposes a statutory duty on local planning authorities that development plan documents must include policies that contribute to mitigation and adaptation to climate change, and this duty is reflected in paragraph 149 of the National Planning Policy Framework, stating in footnote 48 that policies should be “in line with the objectives and provisions of the Climate Change Act 2008”.

There are no specific equivalent requirements in relation to decision making, just the general statement in paragraph 148, stating that the “planning system should support the transition to a low carbon future in a changing climate” and “should help to: shape places in ways that contribute to radical reductions in greenhouse emissions”.

Beware those who wave about the Heathrow ruling as some kind of game changer in relation to the battle against climate change. It is certainly a game changer in relation to Heathrow Airport’s aspirations, as to project timescale at the very least, but, wider than that? The Court of Appeal determined that a specific statutory duty, peculiar to the making of NPSs, was breached. The question of whether there was a breach depended on determining what government policy on climate change was in June 2018, when it was not as advanced as it is now. Finally, it is not obvious to me that the Court of Appeal’s conclusions would be safe against an appeal to the Supreme Court – but of course all that could well be largely hypothetical, depending upon what steps the Government now takes.

The awaited national infrastructure plan, which was to be published alongside the budget on 11 March, is to be delayed but reportedly could still be “before May” (Government delays Budget infrastructure plan, BBC, 5 March 2020). It will be interesting to see whether any hints are dropped in our new Chancellor’s budget statement as to the Government’s direction of travel.

Simon Ricketts, 7 March 2020

Personal views, et cetera

Stansted Airport

This blog post covers yesterday’s High Court ruling in Ross & Sanders (obo Stop Stansted Expansion) v Secretary of State for Transport (Dove J, 7 February 2020), where the issue before the court was whether an application for planning permission for development at Stansted Airport, made to the local planning authority, Uttlesford District Council, by the airport under the Town and Country Planning Act 1990, should instead have been pursued as a Nationally Significant Infrastructure Project (NSIP), to be determined by the Secretary of State for Transport. I also set out the timeline as to the council’s decision-making in relation to the planning application. I have limited what I say to a factual account, given that my firm is acting for the airport (alongside Tom Hill QC and Philippa Jackson from 39 Essex chambers).

The airport is subject to a cap of 35 million passengers per annum (mppa) and a cap of 274,000 air traffic movements (ATMs) per annum. On 22 February 2018 the airport submitted an application for planning permission which involved “building two new taxiway links, being a rapid entry taxiway and a rapid exit taxiway, and nine additional aircraft stands. These new developments are planned to take place in four separate locations within the existing footprint of Stansted Airport. It is uncontentious that these developments would increase the use of Stansted Airport’s single runway and its potential to handle aircraft movements. The planning application also includes a request for the planning cap of 35 million passengers per annum (“mppa”) to be increased to 43 mppa.” It was not proposed to increase the ATMs cap.

The relevant part of section 23 of the Planning Act 2008 provides that airport-related development is to be treated as an NSIP in the case of any “alteration” to an airport the effect of which is “to increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services”.

Section 23(6) provides that “”alteration” in relation to an airport, includes the construction, extension or alteration of:

(a) a runway at the airport,

(b) a building at the airport, or

(c) a radar or radio mast, antenna or other apparatus at the airport.”

The Secretary of State for Transport determined on 28 June 2018 that the 10 mppa threshold would not be exceeded and that he would not exercise his discretionary power under section 35 of the Act to treat the proposals as nationally significant and therefore subject to the 2008 Act decision-taking process and a decision at a national level. The latter determination was taken against the background of the Secretary of State’s publication on 5 June 2018 of the government’s “”Airports National Policy Statement: new runway capacity and infrastructure at airports in south-east of England” (NPS) together with the policy “Beyond the horizon: The future of UK aviation-Making best use of existing runways” (“MBU”).” The MBU policy paper stated that the government would be using its Aviation Strategy to progress its wider policy towards tackling aviation carbon. “”[T]o ensure that our policy is compatible with the UK’s climate change commitments we have used the DfT aviation model to look at the impact of allowing all airports to make best use of their existing runway capacity.” The paper stated:

“Airports that wish to increase either the passenger or air traffic movement caps to allow them to make best use of their existing runways will need to submit applications to the relevant planning authority. We expect that applications to increase existing planning caps by fewer than 10 million passengers per annum (mppa) can be taken forward through local planning authorities under the Town and Country Planning Act 1990. As part of any planning application airports will need to demonstrate how they will mitigate against local environmental issues, taking account of relevant national policies, including any new environmental policies emerging from the Aviation Strategy. This policy statement does not prejudice the decision of those authorities who will be required to give proper consideration to such applications. It instead leaves it up to local, rather than national government, to consider each case on its merits.”

Stop Stansted Expansion challenged the Secretary of State’s 28 June 2018 determination on two grounds: that the airport’s proposals would in fact lead to the 10 mppa cap being exceeded and that the Secretary of State should have used his discretionary power to treat the proposals as an NSIP, the claimant relying, amongst other things on a “suggestion that the application was in truth part of a wider project for expansion of passenger throughput in excess of the NSIP definition, and the ramifications of increased carbon emissions as a result of increased air travel which ought to have led to the conclusion that the development should be treated as an NSIP.”

On the first ground, the court accepted that the proposed works amounted to an “alteration” of an airport (the argument was as to whether the definition was for the purposes of these proposals limited to alterations to a runway but Dove J accepted a wider definition, given the word “includes” in sub-section (6)). However, the court found that the Secretary of State was correct to conclude that the 10 mppa threshold would not be breached:

“I am satisfied that the submissions of the Defendant in this respect are undoubtedly correct. The language of the statute in relation to whether the alteration will “increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services” requires the Defendant to form a judgment in relation to that question. In my view that judgment is to be formed by asking what increase in capacity could realistically be achieved, not what might technically or arithmetically be possible. It requires an analysis based on how the infrastructure is likely to perform, not a hypothetical approach assuming speculative figures in relation to each aspect of the calculation of capacity to show what might be possible rather than what is likely to occur in practice.”

On the second ground, the court noted that from the statutory language of section 35 of the 2008 Act “the Defendant is granted a broad discretion as to whether or not to treat an application for development which does not otherwise meet the definitions for an NSIP as a project which requires development consent on the basis of national significance. Bearing in mind the prescriptive nature of the definitions for various types of NSIP contained in the 2008 Act, the discretion under section 35 is a broad one. Given the nature of the Defendant’s decision, as one which was exercised using a relatively broad discretion, the task of the Claimants to show that the judgment which the Defendant reached was unlawful is daunting.”

The court concluded that similarly ground 2 was not made out. One of the claimant’s submissions was that the MBU carbon emissions modelling was flawed and had “underestimated the effects of growth in aircraft traffic at Stansted airport”. The judge accepted the Secretary of State’s submission that in “reality this aspect of the Defendant’s decision was essentially based on reliance on the MBU policy, and that the substance of the Claimants’ case is in fact a challenge to the legality of that policy in disguise (see paragraphs 95 and 96 above). Certainly, the legality of that policy is now beyond argument. As such I accept that the Defendant was, lawfully, entitled to reach the conclusion which he did, based squarely on the MBU policy that “an increase in the planning cap at [Stansted]…could be adequately mitigated to meet the CCC’s 2050 planning assumption”. That was a conclusion which applied the provisions of the MBU policy (see paragraphs 38 to 40 above) which had considered that proposals of this scale would not imperil the achievement of climate change targets in the light of the modelling work which had informed the policy.”

“The Defendant has provided in the evidence a clear and coherent explanation of the purpose of the modelling (namely for long-term forecasting at a national level) and the basis on which it was constructed so as to inform and justify the policy in MBU relating to whether planning proposals at airports could be adequately mitigated and dealt with at the local level. Once this background to the technical work is understood, then it becomes clear that the criticisms of the Claimants, based upon short-term analysis or examination of individual years is without substance.”

Accordingly, the airport had been correct to pursue the proposals by way of an application for planning permission to the local planning authority, and the Secretary of State had not acted unlawfully in declining to intervene by way of directing that the proposals should proceed as an NSIP.

So was the local planning authority, Uttlesford District Council, now free to determine the application? Well this would have been the case if it had not resolved, against officers’ recommendations, to refuse planning permission on 24 January 2020, the decision notice then having been issued on 29 January 2020.

It has been a twisting route, summarised in the report prepared for Extraordinary Planning Committee meetings that were held on on 17 and 24 January 2020 (the passages in quotation marks below), with additional factual insertions by me:

The claimant made requests on 19 April and 14 June 2018 to the Secretary of State for Housing, Communities and Local Government for the application to be called in. He responded that the Secretary of State for Transport should first determine whether the application should be treated as an NSIP.

The Secretary of State determined on 28 June 2018 that the application was not to be treated as an NSIP. Stop Stansted Expansion issued judicial review proceedings in relation to that decision (those proceedings eventually being dismissed on 7 February 2020 as described above).

“On 14 November 2018, the Planning Committee resolved to grant the application, subject to conditions and subject to completion of an agreement imposing legally binding planning obligations (“section 106 agreement”). The Report and Supplementary Reports identified the planning obligations required. The precise form that the section 106 agreement should take, in accordance with the amended recommendation, was resolved to be delegated to officers. Subsequently, a proposed S106 Agreement was drawn up between the Council, Essex County Council (as relevant highway authority) and Stansted Airport Ltd.”

On 20 March 2019 the Secretary of State for Housing, Communities and Local Government decided not to call in the application. Stop Stansted Expansion issued judicial review proceedings in relation to that decision (Legal bid lodged after Government rejects ‘call in’ of Stansted Airport planning application, Saffron Walden Reporter, 28 March 2019). Those proceedings were subsequently withdrawn.

The purdah period commenced ahead of local government elections on 2 May 2019.

“5. An Extraordinary Meeting of the Council was called for 25 April 2019 to consider the following motion:

“To instruct the Chief Executive and fellow officers not to issue a Planning Decision Notice for planning application UTT/18/0460/FUL until the related Section 106 Legal Agreement between UDC and Stansted Airport Limited and the Planning Conditions have been scrutinised, reviewed and approved by the Council’s Planning Committee after the local elections.

The motion was defeated by 14 votes to 18 votes.

6. A further Extraordinary Meeting was called to consider the following motion:

To instruct the Chief Executive and fellow officers not to issue the Planning Decision Notice for planning application UTT/18/0460/FUL until members have had an opportunity to review and obtain independent legal corroboration that the legal advice provided to officers, including the QC opinion referred to by the Leader of the Council on 9th April 2019, confirms that the proposed Section 106 Agreement with Stansted Airport Limited fully complies with the Resolution approved by the Planning Committee on 14 November 2018 such that officers are lawfully empowered to conclude and seal the Agreement without further reference to the Planning Committee.

The meeting was originally scheduled for 3 June but was deferred until 28 June to allow further time for consideration of legal advice.

7. An informal meeting was held on 30 April with members who had requisitioned the Extraordinary Meeting. It was agreed:

⁃ that officers would not complete the section 106 agreement and issue the

planning consent for the time being;

⁃ That the legal advice previously obtained from Christiaan Zwart, barrister,

would be circulated to all members;

⁃ That a briefing session would be held for all members, with Christiaan Zwart in attendance to answer questions about his advice;

⁃ That, if need be, further advice would be sought at Q.C. level and a further briefing for all councillors would be held. This advice would focus on whether the planning obligation requirements made by the Planning Committee have been incorporated fully and effectively into the s106 agreement, and on the origin and consequences of any “gaps” if any between the Planning Committee Resolution and the resulting S106 Agreement.”

At the local government elections on 2 May 2019, the council came under the control of Residents 4 Uttlesford by a substantial majority.

“8. A briefing meeting for all councillors was called for 14 May. Advice obtained from the Council’s barrister, Christiaan Zwart, was circulated prior to the meeting. He spoke to his advice on 14 May and answered questions.

9. Further advice was then obtained from Stephen Hockman Q.C. working jointly with Christiaan Zwart. Their joint advice was sent to members prior to a second briefing meeting held on 21 May. They answered questions raised by members at that briefing. Issues raised at the briefing meeting by members, and by Stop Stansted Expansion separately, led to additional further advice from Stephen Hockman, Q.C. and Christiaan Zwart. This also was shared with all members of the Council. In all cases information was shared on a legally privileged and confidential basis.

10. At the Extraordinary Meeting of Full Council on 28 June officers were instructed not to issue a Planning Decision Notice for planning application UTT/18/0460/FUL until the Planning Committee had considered:

(i) the adequacy of the proposed Section 106 Agreement between UDC and Stansted Airport Ltd, having regard to the Heads of Terms contained in the resolution approved by the Council’s Planning Committee on 14th November 2018;

(ii) any new material considerations and/or changes in circumstances since 14 November 2018 to which weight may now be given in striking the planning balance or which would reasonably justify attaching a different weight to relevant factors previously considered.

11. Since that meeting further expert legal advice has been obtained from Philip Coppel QC at the request of Members, and officers have been supporting members of the Planning Committee in preparing to consider the two matters set out above through a series of workshop sessions, in part owing to the significant change in membership of the committee. These sessions have taken members through the content of the draft obligations and issues that might be raised as potential new material considerations and regarded as a material change in circumstances since 14 November. They have provided opportunities for councillors and officers to ensure the obligations and issues are fully understood.

12. This report seeks to set out the issues comprehensively, to enable the Committee to comply with the Council resolution and authorise the release of the appropriate decision notice on the planning application.”

Officers recommended the following:

“The Assistant Director – Planning be authorised to issue the decision notice approving the planning application subject to the planning conditions as resolved by the Planning Committee on 14 November 2018 on signing of the amended S106 Agreement appended to this report.”

The Committee sat on 17 and 24 January 2020. Members rejected the officers’ recommendation (ten members voting to reject it, with two abstentions).

The reasons for refusal set out on the decision notice are as follows:

“1 The applicant has failed to demonstrate that the additional flights would not result in an increased detrimental effect from aircraft noise, contrary to Uttlesford Local Plan Policy ENV11 and the NPPF.

2 The application has failed to demonstrate that the additional flights would not result in a detrimental effect on air quality, specifically but not exclusively PM2.5 and ultrafine particulates contrary to Uttlesford Local Plan Policy ENV13 and paragraph 181 of the NPPF.

3 The additional emissions from increased international flights are incompatible with the Committee on Climate Change’s recommendation that emissions from all UK departing flights should be at or below 2005 levels in 2050. This is against the backdrop of the amendment to the Climate Change Act 2008 (2050 Target Amendment) to reduce the net UK carbon account for the year 2050 to net zero from the 1990 baseline. This is therefore contrary to the general accepted perceptions and understandings of the importance of climate change and the time within which it must be addressed. Therefore, it would be inappropriate to approve the application at a time whereby the Government has been unable to resolve its policy on international aviation climate emissions.

4 The application fails to provide the necessary infrastructure to support the application, or the necessary mitigation to address the detrimental impact of the proposal contrary to Uttlesford Local Plan Policies GEN6, GEN1, GEN7, ENV7, ENV11 and ENV13.”

If you are interested in the debate that led to these conclusions, you are out of luck: No webcast or sound recording of the 24 January session is apparently available. There is an apology on the council’s website:

“Unfortunately the broadcasting of today’s meeting failed. Officers worked throughout the day, in liaison with the supplier, to identify and rectify the problem without success.

It has now been established that the back-up local recording of the meeting also failed, meaning an audio recording of the meeting will not be available on the council’s website.

We sincerely apologise to those who had wanted to ‘listen in’ or ‘listen again’ to the meeting.”

From lack of sound to lack of soundness…

The inspectors examining Uttlesford’s local plan concluded in their 10 January 2020 post stage 1 hearings letter as follows:

“Unfortunately, despite the additional evidence that has been submitted during the examination and all that we have now read and heard in the examination, including the suggested main modifications to the plan (ED41) put forward by the Council, we have significant concerns in relation to the soundness of the plan. In particular, we are not persuaded that there is sufficient evidence to demonstrate that the Garden Communities, and thus the overall spatial strategy, have been justified. We therefore cannot conclude that these fundamental aspects of the plan are sound.”

But that, friends, is for another blog post.

Simon Ricketts, 8 February 2020

Personal views, et cetera

Don’t Print The Environment Bill

Two reasons not to press print:

It’s long. The Environment Bill, which had its First Reading on 15 October 2019, comprises 232 pages. It has 130 sections and 20 schedules. If you want a quicker read, the Explanatory Notes are only 212 pages.

Its shelf life may be short. Of course, we are likely to see a General Election before the Bill has made much progress (although there has been rumour that it may proceed quickly to Second Reading this month) and it will at that point fall unless a motion is passed to carry it over to the next Parliamentary session.

However, there is much within it of interest, and much of direct relevance to the operation of the planning system. I’m sure I’ll come back to various elements in different blog posts. The purpose of this post is to flag the main parts to be aware of from a planning lawyer’s perspective and first to look in particular at the improvements (yes improvements) that have been made to the first part, which sets out the new, post-Brexit regime that would apply to environmental principles and governance.

I am focusing on the relevance of the Bill to English planning law. For a detailed explanation of the territorial extent of each of its provisions, see Annex A of the Explanatory Notes, and the detailed table contained in Annex A.

NB There is no additional protection for the natural environment that could not have been secured with us still in the EU, and there are obvious risks of replacing protections in international obligations with protections in domestic legislation that (even if it is enacted in this form and brought into law) is vulnerable to political short-termism, but I set that issue to one side for the purposes of this summary.

Environmental Governance (Part 1 of the Bill)

This covers the ground previously mapped out in the December 2018 draft Environment (Principles and Governance) Bill which I covered in my 22 December 2018 blog post The Office For Environmental Protection, although the ground has moved substantially.

Some of the changes, and the reasoning for them, are summarised in the Government’s Response (published alongside the Bill on 15 October 2019) to the House of Commons Environment, Food and Rural Affairs Committee’s Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill (30 April 2019).

Having flicked through Part 1 and compared it to the December 2018 draft, I would note the following:

Clause 1 to 6 are entirely new, enabling the Secretary of State to set long-term (at least 15 year) “environmental targets” in respect of any matter which relates to (a) the natural environment or (b) people’s enjoyment of the natural environment. At least one target must be set in each of the following priority areas: air quality; water; biodiversity, and resource efficiency and waste reduction. A target in relation to particulate matter in ambient air must also be set. The Secretary of State must take independent advice before setting targets, must be satisfied that the target can be met and there are restrictions on his ability to lower the target. Draft statutory instruments containing the targets must be laid before Parliament by 31 October 2022. There are provisions in relation to reporting and regular reviews of the targets.

Interim targets must be set out in the environmental improvement plans which the Secretary of State must prepare pursuant to clauses 7 to 14 (which largely reflect the draft).

As per the draft, the Secretary of State must prepare a policy statement on environmental principles, which he must be satisfied will contribute to the improvement of environmental protection and sustainable development. The list of “environmental principles” is reduced to the following:

(a) the principle that environmental protection should be integrated into

the making of policies

(b) the principle of preventative action to avert environmental damage

(d) the principle that environmental damage should as a priority be rectified at source, and

(e) the polluter pays principle.

The following were in the draft but no longer appear:

⁃ the principle of sustainable development

⁃ the principle of public access to environmental information

⁃ the principle of public participation in environmental decision-making, and

⁃ the principle of access to justice in relation to environmental matters

I get why the principle of sustainable development has been removed from the list and made an overarching requirement (and I support that as otherwise we would have risked detailed principles set out in a policy statement that may have conflicted with the NPPF, although I wonder how the overarching requirement will be interpreted without further explanation), but why the removal of those Aarhus Convention principles?

Government ministers were to be required to “have regard” to the policy statement. As explained in the Government’s Response, this has been beefed up to “have due regard”. I hadn’t appreciated that this was a higher legal threshold but will bow to others. There is still surely a question as to whether this is strong enough.

The principal objective of the Office for Environmental Protection and exercise of its functions is now set out, as “to contribute to –

(a) the protection of the natural environment, and

(b) the improvement of the natural environment”.

One of my concerns as to the potential scope of the OEP’s operations was that it might get drawn into individual planning disputes. The Government addresses this in its Response:

“We agree, however, with the core of the Committee’s comments around avoiding the OEP becoming inundated with complaints relating to local matters. This is not our intention. Clause 20(7) in the Bill introduced today (formerly clause 12(4)) already directs the OEP to prioritise cases with national implications. We believe this already guards to a significant extent against the Committee’s concerns regarding the OEP having to take on too many complaints relating to local matters or being at too much risk of challenge over its own judgements. However, we have considered this matter further, and have now amended the Bill to provide that the OEP’s enforcement policy must set out how it intends to determine whether a failure to comply with environmental law is serious for the purpose of subsequent clauses (clauses 20(6)(a) and (b) in the Bill introduced today). This should provide greater transparency in relation to the OEP’s approach to the meaning of the term “serious”, and guard against this further.”

My main concern as to the previously proposed procedures was that it was envisaged that the OEP might bring judicial review proceedings in the High Court, a year or more after the decision under challenge, and secure the quashing of the decision, as one of the remedies available. Plainly, this would have introduced unwelcome and unworkable uncertainty into the development process.

I have been impressed at the openness of DEFRA and MHCLG civil servants during this process. Indeed we at Town held last year a breakfast event and, after sharing the concerns of many around the table on precisely this issue, I suggested that “statement of non-conformity” outcome might be more workable, drawing upon the approach in the Human Rights Act 1998.

To my pleasant surprise, the proposed judicial review mechanism has been replaced with provision for an “environmental review” to be brought in the Upper Tribunal.

“(5) On an environmental review the Upper Tribunal must determine whether the authority has failed to comply with environmental law, applying the principles applicable on an application for judicial review.

(6) If the Upper Tribunal finds that the authority has failed to comply with environmental law, it must make a statement to that effect (a “statement of non-compliance”).

(7) A statement of non-compliance does not affect the validity of the conduct in respect of which it is given.

(8) Where the Upper Tribunal makes a statement of non-compliance it may grant

any remedy that could be granted by the court on a judicial review other than damages, but only if satisfied that granting the remedy would not—

(a) be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or

(b) be detrimental to good administration.”

The Government’s Response said this:

“The approach will have a number of benefits compared to that of a traditional judicial review in the High Court. In particular, taking cases to the Upper Tribunal is expected to facilitate greater use of specialist environmental expertise.”

Judicial review will still be available if the OEP considers that a public authority’s conduct “constitutes a serious failure to comply with environmental law”.

There are now fewer exclusions to what falls within the ambit of “environmental matters” for the purposes of Part 1. Unlike the draft, the Bill does not exclude matters relating to:

⁃ the emission of greenhouse gases within the meaning of the Climate Change Act 2008

⁃ taxation, spending or the allocation of resources within government.

Thumbnail sketch of the rest of the Bill

Part 3 covers waste and resource efficiency, including:

⁃ producer responsibility obligations

⁃ deposit schemes and charges for single use plastic items

⁃ managing waste

⁃ waste enforcement

Part 4 covers air quality and the environmental recall of motor vehicles.

Part 5 covers water, including powers to direct water undertakers to prepare joint proposals for the purpose of improving the management and development of water resources.

Part 6 covers nature and biodiversity, including:

⁃ biodiversity

⁃ local nature recovery strategies

⁃ tree felling and planting (including requirements for local highway authorities in England to consult before felling trees).

The biodiversity net gain provisions introduced by clause 88 are particularly important. My 30 March 2019 blog post Biodiversity Net Gain: A Ladybird Guide summarised DEFRA’s proposals at the time. Clause 88 states:

“Schedule 15 makes provision for biodiversity gain to be a condition of planning permission in England”.

Schedule 15 sets out that every planning permission shall be deemed to have been granted subject to a condition that the developer has submitted a biodiversity gain plan to the planning authority and the authority has approved it. The plan must demonstrate that the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least 10%. Certain types of development are excluded, including our old friend: development deemed to be permitted by virtue of a development order.

More anon.

Part 7 covers conservation covenants.

These provisions will also be important for users of the planning system. The provisions follow DEFRA’s February 2019 consultation paper and seek to provide a legal mechanism for landowners to give binding conservation covenants.

As described in the consultation paper, “a conservation covenant is a private, voluntary agreement between a landowner and a “responsible” body, such as a conservation charity, government body or a local authority. It delivers lasting conservation benefit for the public good. A covenant sets out obligations in respect of the land which will be legally binding not only on the landowner but on subsequent owners of the land.”

Again, more anon.

Concluding remarks

So sorry to have kept you from the rugby, Brexcitements or other more healthy Saturday activities – perhaps even enjoying the natural environment.

Admission: I did press print.

Simon Ricketts, 19 October 2019

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