Energy – SIMONICITY

Planning For Industrial Growth & Investment

Sir Keir Starmer’s speech on 14 October 2024 at the international investment summit held at the Guildhall in the City of London generated much media coverage. This blog post is going to look briefly at the references he made in that speech to the planning process.

But first of all, I do draw attention to the important document published by the Government alongside the conference: Invest 2035: the UK’s modern industrial strategy (14 October 2024), now being consulted upon until 24 November 2024.

Some snippets:

“Eight growth-driving sectors have been identified: Advanced Manufacturing, Clean Energy Industries, Creative Industries, Defence, Digital and Technologies, Financial Services, Life Sciences, and Professional and Business Services.”

“A core objective of the Industrial Strategy is unleashing the full potential of our cities and regions. The Industrial Strategy will concentrate efforts on places with the greatest potential for our growth sectors: city regions, high-potential clusters, and strategic industrial sites. The Government is committed to devolving significant powers to Mayoral Combined Authorities across England, giving them the tools they need to grow their sectoral clusters and improve the local business environment through ambitious Local Growth Plans. Partnership with devolved governments will make this a UK-wide effort and support the considerable sectoral strengths of Scotland, Wales, and Northern Ireland.”

“The Industrial Strategy and growth-driving Sector Plans will be published alongside the Spending Review in Spring 2025.”

Under the “energy and infrastructure” section:

“An effective planning system is a fundamental enabler for business investment in our growth-driving sectors. At the national and regional level, planning constraints hold back growth, including in high-performing life sciences clusters like Cambridge and clean energy industries hubs such as Tees Valley and the North-East. Firms require predictability and efficiency when applying for consent for projects, but this is not being provided by existing processes. Businesses have told us that the planning consent process is too lengthy and uncertain – infrastructure projects spend an average of 65 months in pre-construction phases, the highest among peer countries.”

“Targeted, long-term infrastructure investment is a vital catalyst to the success and stability of major city regions and clusters of our growth-driving sectors. Businesses agree that the UK has for too long failed to provide a long-term vision and clear statement of intent to support this. A lack of housing in some places across the UK also prevents labour markets from operating effectively and prevents successful agglomerations. Further, additional data centre capacity and access to fast, secure, and reliable digital connectivity is essential to enabling economic growth and to reap the transformational productivity benefits of digitalisation and the adoption of AI. Continued investment is needed to meet our ambitious targets to bring gigabit-capable broadband to all of the UK, and standalone 5G to all populated areas, by 2030.”

Under a section entitled “Growing high-potential clusters”:

“The Industrial Strategy will concentrate efforts on places with the greatest potential for the growth sectors: city regions, high-potential clusters, and strategic industrial sites. The success of the Industrial Strategy’s growth-driving sectors can only be achieved if these clusters reach their full potential, supported through a place-based approach to policy.

Local Growth Plans are a cornerstone of the place-based approach. These locally owned, 10-year strategies will set out how Mayoral Combined Authorities (MCAs) will use their devolved powers and funding to drive growth in their region. They will build on the region’s unique strengths and opportunities to support sectors, identify wider business environment priorities, and provide a framework to unlock private investment. They represent strategic partnerships between central Government and MCAs to identify priorities for growth and will be aligned to the Industrial Strategy.

Alongside this, the Government will explore how to build on existing place-based initiatives to support high-potential clusters and align them behind the Industrial Strategy. This includes considering how the Industrial Strategy can be a ‘lens’ for informing the recommendations for New Towns locations, creating new large-scale settlements in places where high housing demand constrains the growth of high-potential clusters.”

Now to Keir Starmer’s summit speech. I have copied and pasted the passages most relevant to the planning system. (I do apologise that the format of the transcript makes it appear rather lyrical)

“Now, I don’t see regulation as good or bad.

That seems simplistic to me.

Some regulation is life-saving…

We have seen that in recent weeks here, with the report on the tragedy of Grenfell Tower.

But across our public sector…

I would say the previous Government hid behind regulators.

Deferred decisions to them because it was either too weak or indecisive…

Or simply not committed enough to growth.

Planning is a very real example of that…

Or – for our friends from across the pond…

‘Permitting’ is a really clear example of that…”

“we’ve also got to look at regulation – across the piece.

And where it is needlessly holding back the investment we need to take our country forward…

Where it is stopping us building the homes…

The data centres, the warehouses, grid connectors, roads, trainlines, you name it…

Then mark my words – we will get rid of it.

Take the East Anglia 2 wind farm.

A £4 billion investment.

One Gigawatt of clean energy.

An important project – absolutely.

But also the sort of thing a country as committed to clean energy as we are…

Needs to replicate again and again.

Now regulators demanded over four thousand planning documents for that project…

Not 4000 pages – 4000 documents.

And then six weeks after finally receiving planning consent…

It was held up for a further two years by judicial review.

I mean – as an investor…

When you see this inertia…

You just don’t bother do you?

And that – in a nutshell…

Is the biggest supply-side problem we have in our country.

So it’s time to upgrade the regulatory regime…”

Is the focus of his criticism the influence on the planning system of those aspects which are regulated (or at least the subject of oversight) from the likes of the Environment Agency and Natural England, is it the planning system itself, or is it the role of the courts? Or all of the above? I’m not sure that Anglia Two was particularly an example of where the regulatory regime needs to be (or at least can in a straight-forward way be) “upgraded”, but the previous government of course did of course commission Lord Banner KC in March 2024 to lead a review to “explore whether NSIPs are unduly held up by inappropriate legal challenges, and if so what are the main reasons and how the problem can be effectively resolved, whilst guaranteeing the constitutional right to access of justice and meeting the UK’s international obligations.” It would have been better if perhaps the current government had published the report (assuming it is concluded) alongside Monday’s speech because, guess what, it may point to some of the answers. When can we see it?

DCOs authorising construction of the East Anglia ONE North and East Anglia TWO Offshore Wind Farms with associated onshore and offshore development were granted on 31 March 2022, the case for challenge having been found to be arguable. The challenge to those DCOs, brought by a campaign group Substation Action Save East Suffolk Limited was rejected in the High Court on 13 December 2022 (relatively speedy as far as this sort of litigation is concerned – the Planning Court does generally make sure that cases move at a pace). As is often the way, the greater delay then came at Court of Appeal stage, with the Court of Appeal only dismissing the group’s appeal on 17 January 2024. Any planning lawyer will say the same: get the Court of Appeal operating at the pace of the Planning Court. The Court of Appeal’s judgment in R (Substation Action Save East Suffolk Limited) v Secretary of State (Court of Appeal, 17 January 2024) was summarised by my Town Legal colleague Jack Curnow here.

Some of you will have been at, or heard the subsequent 50 Shades of Planning podcast recording of, our recent Town Legal/Landmark Chambers 100 Days of Labour event. I did ten minutes on what had emerged to that point in relation to commercial and infrastructure development. If only we had waited a week or so! People may find interesting this table of decisions on recovered appeals, call-ins and DCOs (in relation to all types of development) since 4 July 2024, prepared by Town Legal’s Victoria Porter alongside Landmark Chambers’ Edward Arash Abedian, and which shows a 100% approval rate for each to date…

Simon Ricketts, 16 October 2024

Personal views, et cetera

The Guildhall, in the City of London

Can Local Plan Policies Require Developers To Go Beyond National Standards?

The answer is already relatively clear in relation to biodiversity net gain, in that the latest Planning Practice Guidance (14 February 2024) says this:

“Plan-makers should not seek a higher percentage than the statutory objective of 10% biodiversity net gain, either on an area-wide basis or for specific allocations for development unless justified. To justify such policies they will need to be evidenced including as to local need for a higher percentage, local opportunities for a higher percentage and any impacts on viability for development. Consideration will also need to be given to how the policy will be implemented.” (Paragraph: 006 Reference ID: 74-006-20240214).

[This is of course not to say that developers cannot choose to commit to provide more biodiversity net gain than is required. If they so choose, the decision maker should give appropriate weight to that commitment – see NRS Saredon Aggregates Limited v Secretary of State (Eyre J, 16 November 2023)].

But for a long time the answer has been less clear when it comes to whether local planning authorities can impose minimum energy efficiency standards which go beyond what is required by way of national policy or legislation and it is that lack of clarity which led to R (Rights Community Action) v Secretary of State (Lieven J, 20 February 2024). The case concerned a judicial review, brought by a national campaign group, of an inspectors’ report into the Salt Cross Garden Village Area Action Plan. Salt Cross is a project being promoted by Grosvenor Developments Limited to the north of the A40 near Eynsham, West Oxfordshire. The challenge was to the inspectors’ finding that the plan’s policy 2 (“net zero carbon development”) was unsound because it was inconsistent with national policy, which they interpreted as advising that policies should not be used to set conditions above the equivalent of level 4 of the Code for Sustainable Homes.

Policy 2 was certainly prescriptive:

The inspectors tested this policy against what they took to be the “extant expression of national policy”, namely a 2015 written ministerial statement. They stated:

“123. In relation to the building performance standards in Policy 2 as they would apply to dwellings, there is a question of whether the approach is consistent with national policy. The issue arises by virtue of Paragraph 154(b) of the NPPF and the need for local requirements for the sustainability of buildings to reflect the Government’s policy for national technical standards.

124. Although various Government consultations linked to the Future Homes Standard have signalled potential ways forwards, the current national planning policy relating to the endorsement of energy efficiency standards exceeding the Building Regulations remains the Written Ministerial Statement (WMS) on Plan Making dated 25 March 2015. This is supported by the associated NPPG dated from 2019 which explains that the 2015 WMS sets out the Government’s expectation that policies should not be used to set conditions on planning expectation that policies should not be used to set conditions on planning permissions with requirements above the equivalent of the energy requirement of Level 4 of the Code for Sustainable Homes (approximately 20% above the 2013 Building Regulations across the building mix). The 2015 WMS remains an extant expression of national policy.”

They considered “there are inconsistencies between the approach set out in Policy 2 of the AAP and the national policy position explained above relating to exceeding the Building Regulations. In light of our conclusions relating to whether the overall approach in Policy 2 is justified, we do not regard the requirements as reasonable”. They also considered the requirements to be insufficiently flexible:

“137. The detailed requirements also do not reflect the evolving nature of zero carbon building policy, where standards inevitably will change in response to technological and market advancement and more stringent nationally set standards, including within the Building Regulations. Policy 2 contains little flexibility to allow for such changes, or indeed to respond to detailed master planning that will evolve over time. This brings into question whether the evidence that supports the standards justifies the approach as a sound one.

138. We appreciate that Policy 2 provides a high degree of certainty about the standards that will be applied over the lifetime of the development. However, even judged on a proportionate basis, the evidence that underpins the prescriptive requirements lacks the necessary depth and sense of realism to show that Policy 2 represents an appropriate strategy. As such, Policy 2 is not justified.”

They recommended a modification that “substitutes the wording of Policy 2 to introduce the need for an ambitious approach to the use of renewable energy, sustainable design, construction methods and energy efficiency. This is to be assessed at the planning application stage in response to an energy statement. The modification sets out what should be included within an energy statement, including elements set out in the submitted policy but without the specific, stringent requirements which we have found are neither consistent with national policy nor justified.”

The 2015 written ministerial statement did indeed advise that local plan policies exceeding minimum energy efficiency standards should not go beyond level 4 of the Code for Sustainable Homes:

“For the specific issue of energy performance, local planning authorities will continue to be able to set and apply policies in their Local Plans which require compliance with energy performance standards that exceed the energy requirements of Building Regulations until commencement of amendments to the Planning and Energy Act 2008 in the Deregulation Bill. This is expected to happen alongside the introduction of zero carbon homes policy in late 2016. The Government has stated that, from then, the energy performance requirements in Building Regulations will be set at a level equivalent to the (outgoing) Code for Sustainable Homes Level 4. Until the amendment is commenced, we would expect local planning authorities to take this statement of the Government’s intention into account in applying existing policies and not set conditions with requirements above a Code level 4 equivalent. This statement does not modify the National Planning Policy Framework policy allowing the connection of new housing development to low carbon infrastructure such as district heating networks.” (key passage underlined).

You may remember the context of that statement. The non-statutory Code for Sustainable Homes was at that point being formally being withdrawn. But the amendments to the Planning and Energy Act that were referred to in the 2015 WMS were never brought into force and the Government stated in 2021 that this meant that “local planning authorities will retain powers to set local energy efficiency standards for new homes.” Energy standards were amended in 2021 in excess of level 4 of the Code for Sustainable Homes. The closest there then was to a clear statement of the Government’s position was its January 2022 response to a Select Committee report on local government and the path to net zero:

“The National Planning Policy Framework (NPPF) is clear that 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. The NPPF expects Local Plans to take account of climate change over the longer term; local authorities should adopt proactive strategies to reduce carbon emissions and recognise the objectives and provisions of the Climate Change Act 2008. Local authorities have the power to set local energy efficiency standards that go beyond the minimum standards set through the Building Regulations, through the Planning and Energy Act 2008. In January 2021, we clarified in the Future Homes Standard consultation response that in the immediate term we will not amend the Planning and Energy Act 2008, which means that local authorities still retain powers to set local energy efficiency standards that go beyond the minimum standards set through the Building Regulations. In addition, there are clear policies in the NPPF on climate change as set out above. The Framework does not set out an exhaustive list of the steps local authorities might take to meet the challenge of climate change and they can go beyond this.“ (key passages underlined)

Clear as mud!

Lieven J considered that the inspectors (perhaps unsurprisingly in the light of this confusion) had misunderstood what current Government policy was:

“The WMS has to be interpreted in accordance with the mischief it was seeking to address, and with an “updating construction”, see by analogy with statute, Bennion on Statutory Construction (Eighth Edition) at Chapter 14. The WMS is not a statute but a policy, but even with a statute the mischief is a highly relevant consideration in interpretation, and the principle of applying an updating construction is well established. In order to make sense of the WMS in the circumstances that applied in 2023 it is essential to have regard to the fact that the restriction on setting conditions above Code Level 4, upon which the Inspectors relied in IR124, no longer apply.

In my view, the Inspectors’ interpretation neither makes sense on the words, seen in their present context, or of the mischief to which it was applying. To interpret the WMS so as to prevent or restrict the ability of the LPA to set a standard higher than Level 4 is plainly wrong in the light of subsequent events. For this reason, the Inspectors erred in law in their approach by finding that Policy 2 of the AAP was inconsistent with the WMS.

I note that this analysis entirely accords with the position of the Government in its response to the Select Committee on Housing Communities and Local Government in January 2022, when it said: “Local authorities have the power to set local energy efficiency standards that go beyond the minimum standards set through the Building Regulations….” Therefore the Government itself did not appear to be suggesting that the policy in the WMS remains extant.”

The policy position has in fact moved on further since the inspectors reached their findings and is, I hope, now clearer:

Consultation closes on 7 March 2024 in relation to the Government’s current consultation on the Future Homes and Buildings standards to be delivered by way of changes to Part 6, Part L and Part F of the Building Regulations (12 December 2023)

In his accompanying written ministerial statement housing minister Lee Rowley says this about local authorities’ ability to set their own local energy efficiency standards:

““Since [the 2015 WMS], the introduction of the 2021 Part L uplift to the Building Regulations set national minimum energy efficiency standards that are higher than those referenced in the 2015 WMS rendering it effectively moot. A further change to energy efficiency building regulations is planned for 2025 meaning that homes built to that standard will be net zero ready and should need no significant work to ensure that they have zero carbon emissions as the grid continue to decarbonise. Compared to varied local standards, these nationally applied standards provide much-needed clarity and consistency for businesses, large and small, to invest and prepare to build net-zero ready homes.

The improvement in standards already in force, alongside the ones which are due in 2025, demonstrates the Government’s commitment to ensuring new properties have a much lower impact on the environment in the future. In this context, the Government does not expect plan-makers to set local energy efficiency standards for buildings that go beyond current or planned buildings regulations. The proliferation of multiple, local standards by local authority area can add further costs to building new homes by adding complexity and undermining economies of scale. Any planning policies that propose local energy efficiency standards for buildings that go beyond current or planned buildings regulation should be rejected at examination if they do not have a well-reasoned and robustly costed rationale that ensures:

That development remains viable, and the impact on housing supply and affordability is considered in accordance with the National Planning Policy Framework.
The additional requirement is expressed as a percentage uplift of a dwelling’s Target Emissions Rate (TER) calculated using a specified version of the Standard Assessment Procedure (SAP).

Where plan policies go beyond current or planned building regulations, those polices should be applied flexibly to decisions on planning applications and appeals where the applicant can demonstrate that meeting the higher standards is not technically feasible, in relation to the availability of appropriate local energy infrastructure (for example adequate existing and planned grid connections) and access to adequate supply chains.” (key passages underlined).

Isn’t all this where national development management policies would be particularly useful?

Simon Ricketts, 24 February 2024

Personal views, et cetera

It’s All About The Actual Logistics

Repeat after me: the planning system isn’t just about housing.

Any country needs adequate modern space for ensuring that goods of every description, basically everything around us, can be efficiently and quickly delivered to their destination. Of course we are more reliant than ever on complex, often international, supply chains and in recent years we have seen how sensitive they are to disruption. Locational, operational and energy efficiency is also key to minimising the costs which ultimately will be borne by the consumer. We know all this. And yet somehow there’s a disconnect when we need to think about planning for the necessary floorspace, whether in large modern, often highly automated, high-bay warehouses or in “last mile” urban logistics hubs.

Last year the British Property Federation, in conjunction with Savills, published a great explainer document, Levelling Up – The Logic of Logistics.

And so it was heartening to see the Department for Transport’s Freight and logistics and the planning system: call for evidence, published on 4 July 2023, with a deadline of 6 October 2023. It seeks evidence in three main areas:

local plan making and land availability
planning decision taking and the applications process
how the planning system can support specific policy priorities, including:
- supporting supply chains
- decarbonisation of freight
- heavy goods vehicle (HGVs) driver parking facilities and welfare
- strengthening the Union

I know that the DfT is very much wanting to hear positive suggestions as to how the system can be made to work better.

Last Tuesday my Town Legal colleague Paul Arnett recently co-hosted, alongside Quod, a roundtable meeting attended by a number of operators and developers in the sector, together with those in the public sector.

Some interesting comments were made. For instance:

Conceptually the way in which the local plans system struggles, without a more strategic plan making tier, with assessing and planning for the larger than local need for logistics space. Often the need for development at particular locations is driven by geography and road/rail/port access rather than particular local needs, unlike with perhaps housing and other forms of employment development.

The current failings of the NSIP process, save in the case of strategic rail freight.

Other calls on space, by way of for instance data centres and dark kitchens, reducing that which is available for freight and logistics.

The benefits of clustered development, several facilities in one location, in terms of employment, public transport and power.

The challenges in making the case to local planning authorities for the associated facilities required, for instance in some locations a higher than usual level of car parking to allow for occupiers with workers on night shifts and for the overnight re-charging of electric vehicles (in the case of operators who traditionally may have expected staff to store their petrol or diesel vehicles at their homes overnight).

There was much talk of the challenge of securing sufficient power, by way of connections to the national grid and how critical this has become, with many operators already making the move to all electric fleets, and with of course the extent of roof PVs.

The discussion became topical when the prime minister was bounced by leaks into making his speech on net zero the next day (20 September 2023).

I had come out of that roundtable session wholly enthused by the degree to which the corporate participants were so advanced with their thinking on decarbonisation and net zero. To listen the next day to Rishi Sunak was like going back in time (for some of us it probably triggered memories of the scrapping of the code for sustainable homes at a time when the house building industry was well on the way to delivering on what was being required – these sorts of changes to previously announced regulatory changes are debilitating to business in a way that governments do not seem able to grasp). Maybe I’ll leave further commentary on that particular statement to another place, save for highlighting one positive passage from that speech:

“Right now, it can take fourteen years to build new grid infrastructure.

There are enough projects waiting to be connected to generate over half of our future electricity needs.

So, I can announce today that the Chancellor and Energy Security Secretary will shortly bring forward comprehensive new reforms to energy infrastructure.

We’ll set out the UK’s first ever spatial plan for that infrastructure to give industry certainty and every community a say.

We’ll speed up planning for the most nationally significant projects.

And we’ll end the first-come-first-served approach to grid connections by raising the bar to enter the queue and make sure those ready first, will connect first.”

Spot-on. Now let’s make all that happen. Because it is all about the actual logistics.

Simon Ricketts, 23 September 2023

Personal views, et cetera

Extract from cover of BPF/Savills Logic of Logistics document

Mission Zero Needs Planning

I think I can point to something good that came out of Liz Truss’s premiership.

On 26 September 2022 she appointed former energy minister Chris Skidmore MP to carry out an “Independent review of net zero delivery by 2050 aims to ensure delivery of legally-binding climate goals are pro-growth and pro-business” and to “scrutinise green transition to make sure investment continues to boost economic growth and create jobs as well as increase energy security”.

Some of us may have feared the worst as to what lay behind this. Was the intention to back-end progress on the net zero by 2050 target?

The final report, Mission Zero: Independent Review of Net Zero, was published on 13 January 2023. I’m no expert but it seems to me – and to many better-informed commentators (although some of course express disappointment that the recommendations could be more radical) – to be a remarkably thorough and practical piece of work – running to 340 pages of waffle-free analysis and recommendations, with (such is the modern way of these things):

7 conclusions
10 priority missions
6 pillars
A “25 by 2025” set of recommendations

It only needed a golden thread and … bingo!

There is this good House of Lords library summary published on 20 January 2023 ahead of a short debate on the document that is due to take place on 26 January 2023.

Actually, if one looks more closely, there is a golden thread to the report: the need for urgent reform of the planning system so as to make the path to decarbonisation smoother and faster.

From the paragraph 12 of the executive summary:

“We have made great progress decarbonising already with success stories in offshore wind and electric vehicles and it is essential we continue these. However, too often, we heard of problems hampering business and local areas from going as far and as fast as they want to. Whether it is lack of policy clarity, capital waiting for investible propositions, infrastructure bottlenecks, or delays in the planning system, it is clear that we need action to catalyse the deployment of clean solutions, particularly if we want British companies to capture the economic benefits.”

See priority mission 7: ““unblocking the planning system and reforming the relationship between central and local government to give local authorities and communities the power they need to act on net zero”.

From pillar 4, “Net Zero and the Community”:

“There is plenty of regional, local and community will to act on net zero, but too often government gets in the way. The UK government must provide central leadership on net zero, but it must also empower people and places to deliver. Place-based action on net zero will not only lead to more local support but can deliver better economic outcomes as well.

Key recommendations

1. Government should simplify the net zero funding landscape by the next Spending Review

2. Government should fully back at least one Trailblazer Net Zero City, Local Authority and Community, with the aim for these places to reach net zero by 2030

3. Government should reform local planning and the National Planning Policy Framework now”

See recommended action 21 in the “25 by 2025” list:

“Local and regional Reform the local planning system and the National Planning Policy Framework now. Have a clearer vision on net zero with the intention to introduce a net zero test, give clarity on when local areas can exceed national standards, give guidance on LAEP, encourage greater use of spatial planning and the creation of Net Zero Neighbourhood plans, and set out a framework for community benefits.”

What Does The Growth Plan Mean For Development And Infrastructure?

HM Treasury published its Growth Plan 2022 on 23 September 2022. There is so much to take in, this initial blog post simply sets out all of the key passages. A panel including Samuel Stafford, Shelly Rouse, Nicola Gooch, Iain Thomson and myself will be discussing all of this in detail on clubhouse at 6pm on Tuesday 27 September 2022 and we would love to hear your views too. Join the session here (and nowadays if you RSVP within the app you can diarise it, get notified when the session starts etc).

All I would say at this point is that:

I’m not sure whether it’s right to assume that this means the end of the road for the Levelling-up and Regeneration Bill in its entirety? Along the way there is reference to a proposed Planning and Infrastructure Bill but there is no detail yet as to its contents and whether of the LURB will be retained or recycled.

There are some eye catching proposals here and the direction of travel is clear, although in most instances of course what we need is a further layer of detail.

From the executive summary

“The Growth Plan 2022 makes growth the government’s central economic mission, setting a target of reaching a 2.5% trend rate.”

“To drive higher growth, the government will help expand the supply side of the economy. The Growth Plan sets out action to unlock private investment across the whole of the UK, cut red tape to make it quicker to deliver the UK’s critical infrastructure, make work pay, and support people to get onto the property ladder. New Investment Zones will provide time-limited tax reliefs, and planning liberalisation to support employment, investment, and home ownership.”

Chapter 2, “tackling energy prices”

“To increase energy resilience, the North Sea Transition Authority will shortly launch a new oil and gas licensing round. This is expected to deliver over 100 new licenses. The government has also announced an end to the pause on extracting reserves of shale. The government is driving the development of home-grown nuclear – including Small Modular Reactors – hydrogen, Carbon Capture, Utilisation and Storage and renewable technologies. The government will unlock the potential of onshore wind by bringing consenting in line with other infrastructure. The UK is a world-leader in offshore wind, with 8GW of offshore wind currently under construction. By 2023 the government is set to increase renewables capacity by 15%, supporting the UK’s commitment to reach net zero emissions by 2050.”

Chapter 3, “growth”

“…the government must cut taxes, streamline the public sector, and liberate the private sector, by making Britain the place for:

• investment: creating the right conditions and removing barriers to the flow of private capital – whether taxes or regulation

• skilled employment: helping the unemployed into work and those in jobs secure better paid work

• infrastructure: accelerating the construction of vital infrastructure projects by liberalising the planning system and streamlining consultation and approval requirements

• home ownership: getting the housing market moving

• enterprise: cutting red tape and freeing business to grow and invest.”

Investment zones

“The government will work with the devolved administrations and local partners to introduce Investment Zones across the UK. Investment Zones aim to drive growth and unlock housing. Areas with Investment Zones will benefit from tax incentives, planning liberalisation, and wider support for the local economy. The specific interventions in Investment Zones will include:

• Lower taxes – businesses in designated sites will benefit from time-limited tax incentives.

• Accelerated development – there will be designated development sites to deliver growth and housing. Where planning applications are already in flight, they will be streamlined and we will work with sites to understand what specific measures are needed to unlock growth, including disapplying legacy EU red tape where appropriate. Development sites may be co-located with, or separate to, tax sites, depending on what makes most sense for the local economy.

• Wider support for local growth – for example, through greater control over local growth funding for areas with appropriate governance. Subject to demonstrating readiness, Mayoral Combined Authorities hosting Investment Zones will receive a single local growth settlement in the next Spending Review period.

Specified sites in England will benefit from a range of time-limited tax incentives over 10 years. The tax incentives under consideration are:

• Business rates – 100% relief from business rates on newly occupied business premises, and certain existing businesses where they expand in English Investment Zone tax sites. Councils hosting Investment Zones will receive 100% of the business rates growth in designated sites above an agreed baseline for 25 years.

• Enhanced Capital Allowance – 100% first year allowance for companies’ qualifying expenditure on plant and machinery assets for use in tax sites.

• Enhanced Structures and Buildings Allowance – accelerated relief to allow businesses to reduce their taxable profits by 20% of the cost of qualifying non-residential investment per year, relieving 100% of their cost of investment over five years.

• Employer National Insurance contributions relief – zero-rate Employer NICs on salaries of any new employee working in the tax site for at least 60% of their time, on earnings up to £50,270 per year, with Employer NICs being charged at the usual rate above this level.

• Stamp Duty Land Tax – a full SDLT relief for land and buildings bought for use or development for commercial purposes, and for purchases of land or buildings for new residential development.

The Department for Levelling Up, Housing and Communities will shortly set out more detail on the planning offer. This will include detail on the level of deregulation and the streamlined mechanism for securing planning permission.

The government will deliver Investment Zones in partnership with Upper Tier Local Authorities and Mayoral Combined Authorities in England, who will work in partnership with their relevant districts and/ or constituent councils. All Investment Zone agreements will contain tax and development sites. Areas will be responsible for putting forward sites and demonstrating their potential impact on economic growth, including by bringing more land forward and accelerating development.

Investment Zones will only be chosen following a rapid Expression of Interest process open to everyone, and after local consent is confirmed. However, examples of illustrative sites that may have the potential to accelerate growth and deliver housing in the way the Investment Zone programme envisages can be found in Annex A.

The government is in early discussions with 38 Mayoral Combined Authorities and Upper Tier Local Authorities who have already expressed an initial interest in having a clearly designated, specific site within their locality. A full list of these 38 authorities is available in Annex A.

The government will deliver Investment Zones in Scotland, Wales and Northern Ireland and intends to work in partnership with the devolved administrations and local partners to achieve this. The government will legislate for powers to create tax and development sites in Investment Zones where powers are reserved.

The government remains committed to the progress of the Freeports programme. The government will work with local partners involved in current and prospective Freeports to consider whether and how the Investment Zones offer can help to support their objectives, as part of the wider process for identifying Investment Zones. This will ensure that both programmes complement one another.”

Annex A lists 24 examples of “illustrative sites that may have the potential to accelerate growth and deliver housing in the way the Investment Zone programme envisages” and 38 authorities with which the government is in early discussions with a view to establishing an investment zone in their area.

There is also this investment zones factsheet.

[Added 24 September 2022] Additional information on investment zones in England has also been published by the Levelling Up Department and HM Treasury: https://www.gov.uk/government/publications/investment-zones-in-england/investment-zones-in-england (24 September 2022). See e.g.

“The government envisages that Investment Zones will be one or more specific sites within an MCA or UTLA where a variety of tax, regulatory innovations and flexibilities, and planning simplifications will apply within those site’s boundaries.

As MCAs and UTLAs consider coming forward to express interest in pursuing Investment Zones with the government, they should consider which sites will best drive a substantial contribution to the UK’s economic growth and a significant acceleration of delivery of additional housing. There is a strong expectation that Investment Zones will bring forward additional development, and that they bring forward a mix of both commercial and residential development. Both of these will be considered in the EOI assessment process.

Sites may be aligned with existing local growth strategies and transport plans. Sites that already have a masterplan, development order or outline permission could be considered by MCAs and UTLAs as a potential Investment Zone, as could sites where planning consents are not yet in place. Development sites where planning simplifications apply may be co-located with, or separate to, tax sites, depending on what makes most sense for the local economy.”

Housing

“To make buying a home a reality, the government must accelerate housing delivery. Planning permission was granted for more than 310,000 homes last year, up 10% on the year before,10 but further reform is needed. Later this autumn, the government will set out its vision to unlock homeownership for a new generation by building more homes in the places people want to live and work and by getting our housing market moving. This will boost growth across the UK helping more people afford to live near good jobs. The government’s full proposal will be set out in due course.

The government will promote the disposal of surplus public sector land by allowing departments greater flexibility to reinvest the proceeds of land sales over multiple years. This will encourage the sale of more public land for housing and allow departments and the NHS to reinvest in public services. Devolved administrations have bespoke flexibilities to move funding between financial years and the government will discuss the implications of this change with them in due course.”

Planning

“The UK’s planning system is too slow and too fragmented. For example, an offshore wind farm can take four years to get through the planning process and no new substantive onshore wind farm has received planning consent since 2015.”

“The Growth Plan announces that new legislation [the Planning and Infrastructure Bill] will be brought forward in the coming months to address […] barriers by reducing unnecessary burdens to speed up the delivery of much-needed infrastructure. This includes:

• reducing the burden of environmental assessments

• reducing bureaucracy in the consultation process

• reforming habitats and species regulations

• increasing flexibility to make changes to a DCO once it has been submitted.”

Infrastructure

“The Growth Plan also announces further sector specific changes to accelerate delivery of infrastructure, including:

• prioritising the delivery of National Policy Statements for energy, water resources and national networks, and of a cross-government action plan for reform of the Nationally Significant Infrastructure planning system

• bringing onshore wind planning policy in line with other infrastructure to allow it to be deployed more easily in England

• reforms to accelerate roads delivery, including by consenting more through the Highways Act 1980 and by considering options for changing the Judicial Review system to avoid claims which cause unnecessary delays to delivery

• amendments to the Product Security and Telecommunications Infrastructure Bill to give telecoms operators easier access to telegraph poles on private land, supporting the delivery of gigabit capable broadband.”

“The Growth Plan also sets out the infrastructure projects that the government will prioritise for acceleration, across transport, energy and digital infrastructure. This non-exhaustive list is set out in Annex B and reflects projects which have particularly high potential to move to construction at an accelerated pace. The government will also continue to focus on delivering its wider infrastructure priorities, from major projects such as HS2, to its wider nuclear strategy.”

The agenda is set…

Simon Ricketts, 23 September 2022

Personal views, et cetera

Fracking

Much has happened since my last blog post two weeks ago. Eclipsing all else has been the death on 8 September 2022 of Her Majesty Queen Elizabeth II – surely one of our greatest Britons. It is right that we mourn as a country as if a family. If anyone deserves that, she does.

What is appropriate in this period of mourning? Hashi Mohamed and I decided to postpone our clubhouse chat about his new book A home of one’s own that was due to take place this Monday. It will now happen at 6 pm on Wednesday 5 October 2022 and we hope that you can join us. It felt wrong to be promoting the event actively this weekend and having what I hope will turn out to be a lively, no holds barred, discussion on what is wrong with our approach to housing.

However, it feels equally wrong to pretend that everything else of concern in the world is on hold. There was literally no other news on the BBC last night.

And yet, these are momentous times. Liz Truss became prime minister on 6 September 2022 and on the morning of 8 September 2022, opening a debate on energy policy, she announced an energy price guarantee for individuals and businesses as wider energy policy changes (see Government announces Energy Price Guarantee for families and businesses while urgently taking action to reform broken energy market (press statement, 8 September 2022)). The energy price guarantee (a matter that is literally of life or death to many people, and a matter of survival or not for many businesses) needs to be fleshed out and of course one of the controversial aspects of the measure is the decision not to impose any further windfall tax on energy suppliers. Another controversial aspect is the unsurprising announcement by Truss that the Government would resume its support for fracking:

“We will end the moratorium on extracting our huge reserves of shale, which could get gas flowing in as soon as six months, where there is local support.”

Fracking proposals have effectively been on hold since November 2019, following this announcement by Andrea Leadsom and Kwasi Kwarteng: Government ends support for fracking (press statement, 2 November 2019)

“On the basis of the current scientific evidence, government is confirming today that it will take a presumption against issuing any further Hydraulic Fracturing Consents. This position will be maintained unless compelling new evidence is provided. While future applications for Hydraulic Fracturing Consent will be considered on their own merits by the Secretary of State, in accordance with the law, the shale gas industry should take the government’s position into account when considering new developments.

The OGA has advised the government that until further studies can provide clarity, they will not be able to say with confidence that further hydraulic fracturing would meet the government’s policy aims of ensuring it is safe, sustainable and of minimal disturbance to those living and working nearby.

The Infrastructure Act 2015 included the requirement for operators to obtain Hydraulic Fracturing Consent which ensures that all the necessary environmental and health and safety permits have been obtained before activities can commence. The Consent process also includes the requirement for an independent financial analysis of the operator to be carried out to ensure they can meet their licence obligations, including decommissioning.”

This was followed through into the Conservative manifesto for the December 2019 general election:

“We placed a moratorium on fracking in England with immediate effect. Having listened to local communities, we have ruled out changes to the planning system. We will not support fracking unless the science shows categorically that it can be done safely.”

With a new Prime Minister, and a new Business Secretary, a new approach. Remember this for instance? Rees-Mogg downplays fracking risk and eyes ‘every last drop’ of North Sea oil (Evening Standard, 4 April 2022)

By way of contrast, as quoted by Sir Keir Starmer in his response to Truss’ speech, this was Kwarteng from March 2022 when he was Business Secretary:

“Even if we lifted the fracking moratorium tomorrow, it would take up to a decade to extract sufficient volumes – and it would come at a high cost for communities and our precious countryside.

Second, no amount of shale gas from hundreds of wells dotted across rural England would be enough to lower the European price any time soon.

“And with the best will in the world, private companies are not going to sell the gas they produce to UK consumers below the market price.”

Surely there are at least five questions at large:

Is there now adequate scientific evidence that fracking is safe?

We are waiting for the publication of a review by the British Geological Survey of the science of fracking, commissioned in April by BEIS, which has apparently had it since early July. Its publication is apparently imminent.

Have we any headroom within the “net zero by 2050” target to allow us to continue relying on extracting and burning hydrocarbons and what example does this set?

A bigger question but surely this is a big step away from where we should be heading.

Is it feasible in any event to extract meaningful levels of shale gas which would have any meaningful effect either on energy security or energy prices?

Maybe circumstances have changed so radically since Kwarteng’s March 2022 comments such that current gas prices suddenly make fracking a potentially economic proposition? We don’t have the data but what a u-turn that would be from that March statement. In any event is there the evidence that as a country we do even have large amounts of shale gas to extract? The quantities would surely need to be enormous to have any economic impact.

Given the technical and planning processes involved, and widespread public opposition, how will projects secure local support such that gas can be flowing within six months?

It’s interesting to compare with the on-shore wind policy position – still restrictive, the killer restriction being, by way of footnote 54 of the NPPF, that “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.”

Not at all easy – and fracking is way less popular than on-shore wind. Indeed, there was a fascinating Survation survey last week Polling in every constituency in Britain shows strong support for building wind farms to drive down consumer bills. 34% supported gas from onshore fracking while 45% opposed.

Who knows, perhaps we will see a return to the idea of a “shale wealth fund” for the benefit of local communities that I have just remembered that I was writing about in my 8 August 2016 blog post Back Yard Back Handers?

So is this all largely about anti-woke political positioning – and, as with the decision not to impose any further windfall tax on them, about signalling to energy companies that the UK is still open for (fossil fuel) business?

In the words of our fictional Prime Minister Francis Urquhart: “You might very well think that; I couldn’t possibly comment.”

Simon Ricketts, 10 September 2022

Personal views, et cetera

NB For up to the minute policy commentary on fracking issues I do recommend the Drill or Drop website.

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!

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