October – November climate roundup : LURB Committee Stage highlights, a refusal, and a consent

Posted by: Noémi Byrd

Our two most recent blogs discussed one of the main barriers to successful public law climate litigation in the United Kingdom: the disconnect between statutory carbon reduction targets, and strategic Government policies – especially the NPPF. With COP27 in the news, the contrast between international aspirations and domestic realities is more than usually evident.

The recent 26th and 27th sittings of the Levelling-up and Regeneration Bill Committee received close to zero media attention. It is all very interesting reading for planners. Of note on climate change in particular are several potentially high-impact new clauses, each – unsurprisingly – voted down. ‘Minimum Carbon Compliance Standards for New Homes’ (63), proposed by Tim Farron MP, would bring forward to 2023 the date for compliance with the Government’s Future Homes Standard. It would also give local authorities the option of imposing higher standards:

“Most local authorities, certainly ours in Cumbria, are determined to ensure that new builds are built with zero-carbon specification, yet they are not allowed to. If they seek to enforce zero-carbon homes when it comes to insultation, heat pumps, solar panels or a variety of other mechanisms that will ensure there is literally a zero carbon footprint from that property, the developers can object if they think they will incur an unreasonable expense, and the council or planning authority are powerless to do anything about it. It is incredibly frustrating”.

The ministerial response was, in essence, that the transition to net zero will take time – and we have another 28 years.

A new clause effecting the removal of restrictions on onshore wind projects (currently in footnote 54 to the NPPF) within 12 months of Royal Assent was also proposed – but withdrawn against the backdrop of assurances from the minister that the Government’s position on this recently announced policy would be clarified soon.

The most significant new clause, also proposed by Tim Farron MP, entitled ‘Duty with regard to Climate Change’ (73) explicitly imposes a duty on planning decision-makers to achieve the mitigation of and adaptation to climate change, as defined by the net zero target duty and the carbon budgets in the CCA 2008. A provision along these lines has been called for by the Climate Change Committee in its most recent Reports to Parliament. Despite the existing “plethora of duties, requirements and powers”, said Mr Farron, “the planning system regularly throws up decisions that are seemingly incompatible with the need to make rapid progress toward net zero emissions by mid-century”. A similarly worded clause in the final version of the Bill (which, given the Government’s stance, seems unlikely) would herald a radical change from current provisions requiring no more than that planning decisions “contribute to” unquantified climate change mitigation.

The NPPF climate change provisions did however play a supporting role last week in an Inspector’s reasons to dismiss an appeal against refusal of planning permission for 146 residential units in Bristol (APP/Z0116/W/21/3283037). One key issue in the appeal was whether the proposed development would accord with policies for sustainable energy use. The Inspector found failure to accord with a Core Strategy policy, which expects development proposals to provide sufficient renewable energy generation to reduce carbon emissions from residual energy use in buildings by at least 20%. The Core Strategy also expects heating and cooling systems to have been selected according to a ‘heat hierarchy’, with the policy’s supporting text emphasising that the lowest carbon solution feasible for the development should be achieved. The Inspector observed that these requirements “accord [ed] with the provisions of the Framework which states that plans should take a proactive approach to mitigating and adapting to climate change and that development should be planned for in ways that can help to reduce greenhouse gas emissions”. A development plan with clear targets and specific requirements is a powerful climate mitigation tool.

In contrast, key National Policy Statements remain vague on climate expectations. The Secretary of State decided last month to grant consent for works to the A47/A11 Thickthorn Junction in Norfolk, in accordance with the provisions of the National Policy Statement for National Networks (“NPSNN”). That policy was made 2014, well before the net zero target duty came into force and is currently under review. On the issue of carbon emissions, the Secretary of State considered that “as set out in NPSNN paragraph 5.18, it is necessary to continue to evaluate whether (amongst other things) the increase in carbon emissions resulting from the Proposed Development would be so significant that it would have a material impact on the ability of Government to meet its carbon reduction target”. The NPSNN provides no explicit guidance as to how that evaluation should be carried out.

The Secretary of State observed that “there is no single or agreed approach to assessing the cumulative impacts of carbon emissions as there are a number of ways such an assessment can acceptably be undertaken” and agreed that “assessing a scheme against the national carbon budgets is an acceptable cumulative benchmark for the assessment for EIA purposes with regard to both construction and operation”. Given the very small percentage contribution to budgeted emissions (0.0015% of the total emissions in any five year carbon budget period) the Secretary of State concluded that consent should be granted. What amounts to a “material impact” was of course a matter of judgement for him, as was the method of assessment … and so the rationality quagmire we discussed last month awaits anyone minded to challenge the grant of consent. Until sectoral emissions policies and their projected impact on economy-wide budgets are clarified, and a consistent method of assessment adopted, the cumulative impact of insignificant projects is likely to remain unclear – and a key point of contention for Interested Parties.

Out next blog will look at the potential impact of COP27 outcomes on decision-making in this jurisdiction.

If you have any comments or suggestions or if you would like to subscribe to the mailing list for our Environmental Law News Updates please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk