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Less Than Net Zero: climate change as a material consideration in planning decision taking

16.04.2021

In her speech at the 25th UN Climate Change Conference of Parties (COP25), Greta Thunberg criticised states ‘committed’ to net-zero-by-2050 of failing to include air travel, shipping and imports in their emissions calculations. “Our house is on fire,” she exclaimed, calling members of the public to expect urgent action from senior politicians in the face of climate emergency. At present, they were misleading not leading: making bold policy commitments without follow up.

 

Boris Johnson then heralded 2020 as the “defining year of climate action” in announcing the forthcoming COP26 to be held in Glasgow this November. Yet despite the Prime Minister’s commitment to reducing emissions by 68% by 2030, and the obligation imposed by the Climate Change Act 2008 (as amended) to reduce greenhouse gas emissions by 100% as against 1990 levels by 2050, a recent report by the Public Accounts Committee (‘Achieving Net Zero’) has damningly found that the government “lacks a plan for how it will achieve net zero.”

 

It seems therefore that the UK has some way to go in translating its high-level policy commitment to reducing emissions into practice. Indeed, the report looks forward to government’s promised “plethora of strategies” on how it will reduce carbon emissions across different sectors to clarify matters. With those policies (hopefully) forthcoming, it seems a good time to take stock of how climate change is addressed in the planning system at present, and what the future holds for emissions in planning decision taking.

 

Thus far, plan making has been the main route for responding to the challenge of climate change. Whilst the NPPF confirms that the “planning system should support the transition to a low carbon future in a changing climate,” (§148) that change is put into practice largely by imposing requirements for plan making and policy: it is plans which are to “take a proactive approach to mitigating and adapting to climate change” (§149, §20(d)) and plans which should “help to reduce greenhouse gas emissions” and increased vulnerability to impacts arising from climate change (§150) (see also s.19(1A) of the Planning and Compulsory Purchase Act 2004).

 

Yet the NPPF contains no specific paragraph (cf. §149-152 and §153-154) which stresses the importance of proactively mitigating/adapting climate change and reducing climate emissions at the decision taking stage, save for the overall environmental objective (§8(c)) which places mitigating/adapting to climate change as an overarching objective for the planning system. The question therefore arises: what is the current status of climate change and emissions targets in actually determining planning applications?

 

In our previous issue, James Findlay QC explained that omission of material consideration would only be fatal to the grant of permission if the decision maker was expressly or impliedly required to take the matter into account (per Samuel Smith Old Brewery (Tadcaster) & others v North Yorkshire County Council [2020] UKSC 3). In certain circumstances on the facts of a case, it will be obvious that climate change matters are central, but given the Prime Minister’s rhetoric about the importance of addressing climate change, and the statutory commitment to net zero, is climate change a consideration which a decision maker must always have (some) regard to if she/he is to produce a lawful decision?

 

Early cases on the matter had suggested that consideration of the global climate effects of a development were predominantly policy considerations for government, rather than for an LPA (see, for example, (R(Stop Bristol Airport Expansion) v N. Somerset District Council [2011] EWHC 3356 at [14]: “the officers’ report was that the global effect was not for the Committee […] it was correct to advise the Committee that it should approach the matter in that way”). Subsequent infrastructure projects have, however, confirmed the government’s own appreciation that the net zero target should be a significant material consideration even when a National Policy Statement provides a basis for decision making (R(ClientEarth) v SoSBEIS and Drax [2021] EWCA Civ 43 at [41]). Similarly, in R(oao Plan B Earth v Secretary of State for Transport [2020] EWCA Civ 214 at [237-8] the Court found the Paris Agreement to be a mandatory material consideration (although on appeal the Supreme Court ([2020] UKSC 52 at [125]) did not express a view on that particular conclusion, having decided that the Paris Agreement had been taken into account).

 

The court came close to confirming that the mandatory consideration of climate change and emissions at the plan making stage should also apply to the decision taking stage in R(McLennan) v Medway Council [2019] EWHC 1738 (see also the summary by Robin Green here). At [36] Lane J found that the broad consideration of climate impacts within s.19(1A) PCPA 2004 and the NPPF “cannot mean their message vanishes at the very point where consideration has to be given to a specific proposal” because that approach “would render the provisions a dead letter.”

 

There are, therefore, encouraging signs that climate change should be considered a mandatory material consideration even if that is not yet an established principle of law. The recent ‘Achieving Net Zero’ report appears to further endorse that approach.

 

The report confirms that the planning system will be a key contributor to achieving net zero, acknowledging that local authorities will play a “major role” in the challenge, including their “planning capabilities […] which would be very important.” Tellingly, the report also urges the government to justify how the decision of the Secretary of State not to intervene over the grant of planning permission to a coal mine in Cumbria is “consistent with its trajectory to net zero.” Coupled with the report’s emphasis on the need to translate policy commitment into practice that is a clear indication that net zero should be a central consideration in planning decision taking. Indeed, the report elsewhere criticises HM Treasury for failing to clarify how it will ensure net zero is given “adequate weight in the assessment of government policies and projects” and the government is encouraged to “build net zero into the structures and processes that govern departmental spending and prioritisation.” It would be remarkable if the government were required to give sufficient weight to climate change in its own spending considerations, but climate change was not a matter which an LPA were obliged to give some weight in decision taking.

 

Drawing the above together: i.) the government is being encouraged to explain how high-level policy commitments to climate targets will be actioned in practice (and to actually action them); ii.) the planning system is confirmed to be key in meeting net zero; iii.) whilst the NPPF has largely approached this by imposing mandatory climate change considerations at the plan making stage, iv.) the courts have recognised the increased importance of climate change and climate targets in decision taking; v.) the report generally emphasises the need for all government departments to consider the impact of net zero when bringing forward their own projects, and v.) the report expressly requires climate impacts of decision taking to be explained (albeit in the context of the Secretary of State’s decision not to intervene in a particular case). Much like the apparent distance between policy and practice, it follows that the case for viewing climate change as a mandatory material consideration (in the Samuel Smith sense) continues to grow.