“Special regard” to Net Zero in planning decisions: House of Lords amendment to the Levelling-up and Regeneration Bill

13 Sep 2023

Cornerstone Climate

By Harriet Townsend and Verity Bell 

On 4 September 2023, the House of Lords voted narrowly (182 votes to 172) in favour of Amendment 191 to the Levelling-up and Regeneration Bill (the “LURB”). This amendment would place new duties on the Secretary of State (as well as relevant planning authorities) to have “special regard” to “the mitigation of, and adaption to climate change” in making a wide array of planning decisions, including preparing national planning policy, making a planning decision arising from an application for planning permission, and approving a development order.

The amendment defines “the mitigation of climate change” as including the achievement of:

  1.  Net Zero by 2050, as defined in section 1 of the Climate Change Act 2008;
  2.  the carbon budgets made pursuant to section 4 of the Climate Change Act 2008; and
  3.  the environmental targets under sections 1 to 3 of the Environment Act 2021 where applicable to the mitigation of climate change, so ensuring that specific (“special”) regard is had to those matters.

Similarly, the “adaptation to climate change” includes:

  • The mitigation of the risks identified in the latest climate change risk assessment conducted pursuant to section 56 of the Climate Change Act 2008; and
  • The achievement of the objectives in the latest flood and coastal erosion risk management strategy made pursuant to section 7 of the Flood and Coastal Water Management Act 2010.

If Amendment 191 survives the return of the LURB to the House of Commons and becomes law, the impact of proposed national policy or of a particular proposed development on the ability of the Secretary of State to meet their legal obligation to meet Net Zero by 2050 (and the carbon budgets) will hold far greater prominence in the planning balance, and will be subject to a legal obligation as to weight comparable to that for designated heritage assets.

Moving the amendment in the House of Lords, cross-bench peer Lord Ravensdale said that the existing duty (set out in s19(1A) of the Planning and Compulsory Purchase Act 2004) – that local development plan documents should “contribute to the mitigation of, and adaption to, climate change” – was insufficient for several reasons.

First, he said that it applies only to local plans and other strategies, but not to individual planning decisions nor policies such as the new national development management policies proposed in the Bill. Second, the existing duty does not refer specifically to statutory climate change and environmental targets binding on the Secretary of State. Putting it more simply than he did, the s19(1A) duty covers only one element of the planning system, and is woolly.

Finally, Lord Ravensdale said that the current system:

means that climate is included along with many other material considerations to be weighed up by the decision-maker, and it is for them to decide the importance to be given to climate change in a particular decision. [The] amendment provides for a statutory duty that would make clear that climate change should be a material consideration with planning weight in the decision-making process – that is the crucial point”.

Not just regard, but special regard: What does it mean to have “special regard” to climate change considerations in planning decision-making?

Having “special regard” to a particular consideration is not a novel concept in planning law. A different context in which planning law imposes a duty on a planning decision-maker to have “special regard” is the statutory duty to have “special regard” to the desirability of preserving a listed building and any features of historic interest under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Courts have interpreted “special regard” as giving “considerable importance and weight” to the desirability of preservation: The Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303; R (on the application of Austin) v Wiltshire Council [2017] EWHC 38 (Admin) at [42].

However, in the listed buildings context a decision-maker applying this statutory duty in practice will do so in conjunction with overlapping local and national policies protecting heritage assets (e.g. giving “great weight” to the conservation of heritage assets – NPPF (2023) at paragraph 199). An important consequence of this overlapping policy context is that a decision-maker can comply with the statutory duty to give “special regard” simply by applying local and national policy.

In contrast to the protection afforded to listed buildings, no equivalent policy status is afforded to the statutory climate targets contained in the Climate Change Act 2008. The revised NPPF published on 5 September 2023 makes reference only to the Climate Change Act 2008 in the context of local plan-making in paragraph 153. This could change, of course, and we will read with added interest the Government’s response to the CCC’s Progress report, due in October.

Further, while the duty to have “special regard” under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 obviously only applies to planning decisions involving listed buildings, the application of the amendment is far wider, applying to all eligible planning decision-making.

How does the duty contained in the amendment compare to the recommendations of the Climate Change Committee?

The key difference between the amendment proposed and the call for “radical reform to support Net Zero”  by the Climate Change Committee in its most recent Progress Report to Parliament published in June  is the primacy of statutory climate targets contained in the Climate Change Act 2008.

As noted in the summary of the Climate Change Committee’s 2023 Progress Report to Parliament published by Cornerstone Climate on 13 July 2023, the Climate Change Committee recommended “an overarching requirement that all planning decisions must be taken giving full regard to the imperative of Net Zero” and that review of the NPPF must ensure that “Net Zero and adaptation outcomes are consistently prioritised through the planning system, making clear that these should work in conjunction with, rather than being overridden by, other outcomes such as development viability”.

One reading of the Climate Change Committee’s recommendation is that the statutory obligations under the Climate Change Act 2008 should take precedence over other material considerations, rather than simply being weighed in the balance with those material considerations – the idea that “other outcomes” are to “work in conjunction with” the statutory climate targets arguably constructs a hierarchy of considerations.

In contrast, the language of the amendment – having “special regard” – would go to the particular weight afforded to the achievement of statutory climate targets. Giving a material consideration “special regard” does not necessarily mean that the consideration cannot ever be overridden by competing material considerations which run contrary to statutory climate targets: a decision maker is simply required to give it considerable importance and weight in the planning balance.

However, it should be noted that Lord Deben, former Chairman of the Climate Change Committee, spoke in favour of the amendment in the House of Lords, describing it as “vital” to the delivery of the Government’s ambitious climate targets.

Potential legal challenges

It is of course possible that, should the amendment become law after the LURB returns to the House of Commons, the scope of the duty to have “special regard” would become the subject of legal challenge. It was on this ground that the Conservative Peer, Lord Howe, resisted the amendment, saying It is for this reason that we have committed instead to go further through national planning policy”. Bearing in mind the narrow majority by which the amendment passed, there is every chance that it does not make it through the Commons. Lord Howe’s contribution also suggests there may be further revisions to the NPPF later this autumn.

But assuming that Amendment 191 makes it into the LURA (as the LURB will no doubt be styled in due course), we suggest it is likely to raise the following interesting questions of law:

  • Does the duty to have “special regard” compel planning decision-makers to require further information about the impact of proposed development on the statutory climate change targets
  • Will the duty change what is “obviously material” to a planning decision?
  • How should planning decision-makers apply the duty where the short or longer term climate impact of a particular development is uncertain and/or simply cannot be known?
  • How does the duty to have “special regard” interact with other material considerations to which a planning decision-maker is obliged to give enhanced or particular weight, such as a tilted housing supply balance?
  • What are the legal implications of the fact that the new duty does not (at least not as presently drafted) apply to Local Plan making decisions?

We end with a statement of the obvious, that planning and environmental lawyers would be well-advised to follow the progress of this amendment through Parliament closely, given the potentially far-reaching effects of its passage into law.

  • Harriet Townsend and Verity Bell are both members of Cornerstone Climate, our centre of excellence for climate litigation and advice. Both of them will be speaking at Cornerstone’s Planning Day 2023 taking place on 6 November 2023.