The New NPPF: Climate Change a Material Consideration in Decision-Taking and Plan-Making
Cornerstone Climate, Planning and Environment, Public Law and Judicial Review
By Estelle Dehon KC
The December 2024 updated National Planning Policy Framework (NPPF) contains significant amendments concerning climate change, which make explicit that climate adaptation and mitigation are now central to the preparation of planning applications and to decision-taking. This, however, sits uneasily alongside some of the changes concerning low carbon and renewable energy and the lack of amendment concerning fossil fuel development.
Background
The consultation draft of the NPPF did not propose substantial amendments to the key paragraphs dealing with climate change. It is understood that this in and of itself was a cause of comment in the consultation responses, many of which proposed amendments aimed at addressing climate change. This dovetails with the Government’s own assessment of policies needed to avoid significant future costs to the economy: the UK Climate Change Risk Assessment 2022 (presented to Parliament pursuant to the Climate Change Act 2008) concluded: “The evidence shows that we must do more to build climate change into any decisions that have long-term effects, such as in new housing or infrastructure, to avoid often costly remedial actions in the future.”
Climate Change and the Transition to Net Zero: amended para 161 and new para 163
Paragraph 161 (previous 157) now explicitly refers to the transition “to net zero by 2050” – the first time the NPPF has done so, despite the net zero obligation having been required in section 1 of the Climate Change Act 2008 since 2019. It requires the “planning system” to “support” that transition, and adds to the requirements of which “full account” need to be taken, now referring to “all climate impacts” and adding overheating, water scarcity and storm risk to the existing flood risk and coastal change.
In relation to plan making, a proactive approach to mitigating and adapting to climate change was already required in previous paragraph 158, now 162. Two amendments were made. Drought has been added to the list of matters which must explicitly be taken into account. Importantly, the link is made between health and climate change by requiring policies to support “appropriate measures to ensure future health and resilience of communities…to climate change” (added words underlined).
The big amendment is new paragraph 163, which provides:
“The need to mitigate and adapt to climate change should also be considered in preparing and assessing planning applications, taking into account the full range of potential climate change impacts.”
The use of the phrase “preparing and assessing” makes clear that, in the first instance, those bringing forward planning applications are required to provide information and evidence concerning the climate impacts of the proposed development and measures taken to adapt to climate change. This is considered further below, but reference to “the full range of potential climate impacts” means that such information and evidence would include:
- Whole-life carbon assessments, which provide information and evidence about both operational carbon emissions (those concerning the energy needed to heat, cool and/or power a project) and embodied carbon emissions (those arising from the production of the materials that will be used throughout its lifecycle and those produced in any demolition and construction);
- Energy efficiency measures, such as space heating demand; energy use intensity and renewable energy generation (example specifications here); and
- Scope 3 emissions of the project, both upstream and downstream.
The paragraph 163 obligation then shifts to local planning authorities to take this information into account in their decision-making, against the background of the need to support the transition to net zero by 2050 and to shape places in ways that contribute to radical reductions in greenhouse gas emissions (paragraph 161).
Paragraph 163 in fact builds on the position which has been clarified in case law: that climate change is a consideration in decision-taking which is so obviously material that failure to give it direct consideration would be irrational:
- R(McLennan) v Medway Council [2019] PTSR 2025, where Mr Justice Lane held that mitigation of climate change is a legitimate planning consideration and that “given what is now said at national level about climate change” it would be irrational for the authority not to have regard to the impact of the proposed development on a renewable energy system;
- R(Hewitt) v Oldham MBC [2020] EWHC 3405 (Admin), which referred to McLennan and all three parties (the local group, the LPA and the developer) accepted that the mitigation of climate change is a material planning consideration in the determination of planning applications, by virtue of paragraphs 148, 153 and 154 of the NPPF;
- R (Frack Free Balcombe Residents Association) v SSLUHC [2023] EWHC 2548 (Admin) at §65, where Mrs Justice Lieven held that climate change “is likely to be a material consideration in every planning decision given the policy context as well as the much wider issues”.
This is against the background of the courts having:
- recognised that there is a climate emergency: Marks & Spencer Plc v SSLUHC [2024] EWHC 452 (Admin), [2024] JPL 1114 at §121 (“Marks & Spencers”);
- described the “very great importance” and “significance” of climate change, “with its consequences for human and other life on this planet”: BAAN v SSLUHC [2023] EWHC 171 (Admin), [2023] PTSR 853 at §§1 and 258;
- accepted that the impact of global heating is “potentially catastrophic”: R (Spurrier) v Secretary of State for Transport [2019] EWHC 1070 (Admin), [2020] PTSR 240 at §560, per the Divisional Court;
- recognised that the “issue of climate change is a matter of profound national and international importance of great concern to the public—and, indeed, to the Government of the United Kingdom”: R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214, [2020] PTSR 1446 at §277.
The Supreme Court in R (Finch) v Surrey County Council [2024] UKSC 20, [2024] PTSR 988 (“Finch”) at §141 recorded that, in adopting the Paris Agreement on 12 December 2015, “most of the nations of the world have acknowledged that climate change represents ‘an urgent and potentially irreversible threat to human societies and the planet’ (Preamble to the decision to adopt the agreement) and have agreed on the goal of ‘holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels’: article 2(1)(a).”
Renewable and low carbon energy development
The final update to the NPPF has rowed back from the consultation version and, arguably, from the 2023 NPPF (apart from in relation to onshore wind). The consultation version of the NPPF would have required LPAs to “support planning applications for all forms of renewable and low carbon energy”. Former paragraph 163(b) required LPAs to “approve the application if its impacts are (or can be made) acceptable”. The final 2024 update omits the mooted general support for renewable and low carbon energy and removes the previous requirement to approve in former paragraph 163(b).
Instead, paragraph 168(a) introduces a requirement to “give significant weight to the benefits associated with renewable and low carbon energy generation and the proposal’s contribution to a net zero future” when determining planning applications for “all forms of renewable and low carbon energy developments and their associated infrastructure” (new words underlined). The requirement not to demonstrate the overall need for renewable and low carbon energy is retained, as is a slightly amended requirement to “recognise that even small-scale and community-led projects provide a valuable contribution to [significant] cutting greenhouse gas emissions”.
The vexed former footnote 57, by which the de facto moratorium on onshore wind was achieved, has been removed wholesale, as has previous footnote 58, excepting applications for repowers and life-extension of wind turbines, has been removed.
The requirement in former paragraph 163(b) for applications for commercial scale projects outside of areas identified as suitable for renewable and low carbon energy (once so identified) to “demonstrate that the proposed location meets the criteria used in identifying suitable areas” has been retained in new paragraph 169. Surprisingly, the consultation draft bolstering of the requirement for plans to identify suitable areas for renewable and low carbon energy sources was not taken forward, so paragraph 165(b) still simply requires that plans should “consider” such identification.
Paragraph 160 repeats former paragraph 156 on “elements of many renewable energy projects” comprising inappropriate development in the green belt and the clarification that the “wider environmental benefits associated with increased production of energy from renewable sources” can constitute very special circumstances.
Paragraph 168(c) arguably gives greater support to applications for the repowering and life-extension of existing renewable sites by retaining the requirement to give significant weight to the benefits of utilising an established site and removing the qualification that they be approved “if its impacts are (or can be made) acceptable”.
Finally, it is notable that paragraph 86(a) requires planning policies to “out a clear economic vision and strategy which positively and proactively encourages sustainable economic growth” in, inter alia, “clean energy industries” – defined as those producing “low-carbon products” in Invest 2035: The UK’s Modern Industrial Strategy. It is assumed that “clean energy industries” includes renewables.
Energy Efficiency; Operational and Embodied Carbon
In order to meet the UK’s legally binding carbon targets, there will need to be a momentous shift in our efforts to reduce the carbon emissions of the built environment. Embodied carbon makes up 20% of UK built environment emissions. 50% of new buildings will need to meet Net Zero by 2030, and 90% of existing buildings will need to be retrofitted by 2040.
The updated NPPF does not specifically refer to operational and embodied carbon. Suggestions to amend former paragraph 157 to address embodied carbon by including the presumption against demolition read into the policy by the Secretary of State in the Marks & Spencers case were not taken up. However, the requirement in paragraph 163 for the need to mitigate “the full range of potential climate impacts” (emphasis added) to be considered in “preparing and assessing” planning applications can only mean that both operational and embodied carbon should be considered. As set out above, this means that for many developments, a Whole Carbon Lifecycle Assessment will be required.
It is likely that this will also be reflected in local plans, as it informs the paragraph 164(b) requirement for new development to be planned for in ways that help to reduce greenhouse gas emissions through “design”: a key element of whole life carbon assessment is that both embodied and operational carbon are considered early in the design process.
Finally, subtle additional encouragement is given in paragraph 125(e) to the need for planning policies and decisions to support opportunities to use the airspace above existing residential and commercial premises for new homes – which ties into supporting reuse and extension of buildings rather than demolition. Previous constraints around mansard roofs in former paragraph 124(e) have been removed, as has the requirement for upward extension to be “consistent with the prevailing height” of neighbouring properties – the requirement is for consistency with “the prevailing form of neighbouring properties and the overall street scene”.
Climate resilience
A new element has been added to the duty to co-operate in paragraph 24: recognition that effective strategic planning across LPA boundaries “will play a vital role in how sustainable growth is delivered, by addressing key spatial issues including…climate resilience.”
Paragraph 164 retains the requirement that new development should be planned for in ways that “avoid increased vulnerability to the range of impacts arising from climate change”, including through adaptation measures where development is brought forward in areas which are vulnerable – it is notable that the implicit assumption that such development can still successfully be brought forward is maintained, despite the concerns of the Climate Change Committee that adaptation of towns and cities to climate change, and of buildings in general, is concerning and generally poor.
Paragraph 136 retains the recognition that trees “make an important contribution to the character and quality of urban environments, and can also help mitigate and adapt to climate change”, requiring planning policies and decisions to “ensure that new streets are tree-lined, that opportunities are taken to incorporate trees elsewhere in developments (such as parks and community orchards), that appropriate measures are in place to secure the long-term maintenance of newly-planted trees, and that existing trees are retained wherever possible.”
Paragraph 172 retains the requirement for all plans to apply a sequential, risk-based approach to flood risk and the location of new development, “taking into account all sources of flood risk and the current and future impacts of climate change”. The application of the sequential risk-based approach is fleshed out in new paragraphs 173-177.
The new definition of “sustainable drainage system” requires such systems to account for the predicated impacts of climate change. Paragraph 182 increases the policy reach for requiring sustainable drainage systems from “major developments” (former paragraph 175) to all applications “which could affect drainage on or around the site”. The specific requirements for providing sustainable drainage systems as part of proposals for major developments are also retained.
Fossil Fuel Development
The Climate Change Committee confirmed in its 2023 Progress Report to Parliament that the expansion of fossil fuel production in the UK is not in line with net zero. The UN Production Gap Report 2023 found that the government’s plan to produce 110% more fossil fuels in 2030 than is consistent with even a 50-50 chance of limiting warming to 1.5°C. The United Kingdom is one of 19 countries whose contributions to global coal, oil and gas government plans and projections pathways has increased. In Finch, the Supreme Court referred to both the 2023 and the 2019 Production Gap Report, with the latter evidencing that leaving oil in the ground in one place would lead to a reduction of 0.6 to 0.6 barrels consumed globally over the longer term (§§1-2).
As a result, consultation responses had called for coal, oil and gas to be treated the same as peat: former paragraph 216(a) excluded peat extraction from the requirement for planning policy to identify new sites or extensions to existing sites former paragraph 217(d) required planning permission not to be granted for such sites. Alternatively the had called for a presumption against new oil and gas development. These suggestions were not taken up. Apart from picking up the name change of “Areas of Outstanding Natural Beauty” to “National Landscapes”, no changes were made to Chapter 17 on Facilitating the sustainable use of minerals or paragraphs 228-230 on oil, gas and coal exploration and extraction.
Videos
Find below some free climate training sessions hosted in May 2024 as part of Cornerstone Climate Month.
Climate Change as a Material Consideration: Dead Letter or Burning Issue?
In this presentation, Cornerstone Climate members explore the relevance of climate change to decision-making in planning law. They will cover a range of topics including: requirements of the NPPF and other Government policy statements; the evolving legal position according to the English courts; recent appeal decisions in which inspectors have had to confront this thorny but significant issue. With Ryan Kohli, Alex Williams and Rowan Clapp. Download slides
Policy-making: How to Plan for Net Zero
The recent Salt Cross Garden Village judicial review found that an Inspectors’ Report watering down the net zero policies in a draft Area Action Plan was unlawful. Josef Cannon KC, Ruchi Parekh and Jack Barber analyse the decision, both as to its interesting procedural aspects but also as a jumping-off point to consider how we can plan for a net-zero future, exploring the kinds of policies that might be appropriate for inclusion in development plan documents. Download slides
The Energy Transition (1): Renewables
A key aspect of addressing climate change is decarbonising the system of energy production. This session introduces the energy transition, will ask what counts as a renewable technology and will provide an overview of the legal and regulatory issues in the UK around rolling out the technology. It covers: wind (onshore and offshore, fixed and floating); solar (ground and building mounted); tidal (stream and barrage); geothermal; and the contested renewables – nuclear and biomass. With: Estelle Dehon KC, Ryan Kohli and Olivia Davies. Download slides
Power to the People: Getting renewable energy from source to user
This session with Asitha Ranatunga, Jonathan Clay and Michael Bedford KC explores developments in the UK’s energy infrastructure with a focus on the National Grid’s pioneering efforts. Discover the current progress of the ‘Holistic Network Design’ and what the future holds beyond 2030. Dive into the critical topics of offshore transmission networks, including comprehensive reviews and route planning, alongside the newly updated suite of Energy National Policy Statements. Download Slides
Access all the recordings from Cornerstone Climate Month here.
