Category: Opinions | October 05, 2023
In its October 2021 Net Zero Strategy, the Government said that “devolved and local government play an essential role in meeting national net zero ambitions” because it “is best placed to integrate activity on the ground” and to inspire “action by, local businesses, communities, and civil society”. The Climate Change Committee (CCC), the National Audit Office, and the Levelling Up, Housing and Communities (LUHC) Select Committee have also said local authorities would have a “critical” role to play in delivering net zero.
But what is the reality when it comes to the legal approach in plan-making as well as decision-making by local planning authorities? Both are part of the legislative architecture of planning.
Part 1: Plan-making
We all know that the existing statutory framework centres on plan-making as the primary mechanism to tackle climate change in the planning context. Local planning authorities have a statutory obligation to prepare and publish local policies addressing climate change mitigation and climate change adaptation, and those policies will then be taken into account in the determination of planning applications. The outputs from the Climate Change Act 2008 (e.g. statutory target of reducing carbon dioxide emissions to at least 100% below 1990 levels by 2050) provide an evidence base that can be used in identifying priorities for action and appropriate adaptation measures, as well as a carbon reduction budget which is directly relevant to planning.
Local planning authorities are bound by the legal duty set out in section 19(1A) of the Planning and Compulsory Purchase Act 2004, as amended by the Planning Act 2008, to ensure that, taken as whole, plan policy contributes to the mitigation of, and adaptation to, climate change. This powerful outcome-focused duty on local planning clearly signals the priority to be given to climate change in plan-making. The Levelling-up and Regeneration Bill also reaffirms the role of local plans in climate mitigation and adaptation but also introduces requirements to address climate in the preparation of joint spatial development strategies, minerals and waste plans, supplementary plans, and neighbourhood development plans. The best way to introduce new effective policies on climate change is to embed them throughout the local development plan.
In addition to local plans, climate change constitutes an overarching planning policy objective in the NPPF, and also represents an important factor to be observed in the preparation of National Policy Statements.
However, what is happening in practice? Many local plans are out of date. Even those currently being updated will take years before they are finalised. Many local planning authorities also lack funding so there are not enough planning officers to undertake the tasks. There is also lack of skills and capacity in local government to tackle climate change. Overall, structural weaknesses have significantly undermined the effectiveness of the planning system: there has been a lack of political drive and the loss of in-house skills resulting from local government austerity. This all hinders the efficacy of the plan-making process.
Local planning authorities can still strengthen their response to climate change mitigation and adaptation even if a full review of the local development plan is not scheduled or feasible. The Town and Country Planning Association and the Royal Institute of Chartered Surveyors in their January 2023 publication “The Climate Crisis – A Guide for Local Authorities on Planning for Climate Change” suggested four options for action: (1) produce design codes; (2) conduct a partial review of the local development plan; (3) produce supplementary planning guidance; and (4) carry out enforcement through development management. Nonetheless, this all still requires funding and staff capacity and is not quick.
So what else can local planning authorities do, given that reliance on plan-making might not necessarily be the best course of action to take to tackle climate change speedily and deliver legally binding climate targets in the short term?
Part 2: Decision-making
One possible solution is to empower decision-makers to consider climate change adaptation and mitigation, as well as climate and nature targets, in individual planning decisions. There is no express statutory duty for decision-makers to assess the climate-related effects of individual planning applications.
The need for a statutory duty for local authorities to consider climate change and net zero was highlighted in the report of the Independent Review of Net Zero (January 2023), led by the Rt Hon Chris Skidmore MP. The main difference between an approach that focuses on plan-making and an approach that centres on decision-taking is related to the pace with which the proposed changes can take place in practice. Amendments have been made by the House of Lords to The Levelling-up and Regeneration Bill to ameliorate the gap in the legal framework. The Bill with the amendments will now go to the House of Commons for consideration 17 October 2023. The primary purpose of the amendments is to direct a decision-maker’s attention to two specific factors in the determination of individual applications: (1) the climate implications of the development proposal; and (2) how the proposed development contributes to a pathway towards the delivery of net zero. As the Centre for Climate Engagement at Hughes Hall at the University of Cambridge stead (July 2023): “An amendment requiring climate change considerations and climate targets to be addressed in individual planning decisions may have immediate effect on planning applications across England after Royal Assent. This will not resolve the problem of administrative capacity currently affecting local planning authorities, but it will accelerate the way climate change considerations are taken into account in the assessment of individual development proposals. Likewise, this is not to suggest that the current emphasis on plan-making should be abandoned altogether, but rather that it should be complemented by extending current requirements for climate change adaptation and mitigation, as well as net zero, to the determination of individual planning applications.”
We already know that planning decision-makers must make planning decisions in accordance with the development plan, “unless other material considerations indicate otherwise”. Material considerations are generally divided into those which the decision-maker may take into account (potentially relevant) and those which the decision-maker must take into account (necessarily relevant) - the latter when the decision-maker is expressly or impliedly required by the legislation, or by policy, to take a specific consideration into account and/or when on the facts of the case, the matter is so "obviously material" that it would be irrational not to consider it. Weight has to be attached to material considerations that are found to be relevant as then the decision-maker proceeds to strike a ‘planning balance’ concluding whether planning permission should be granted or refused. When climate change implications are found to be a material consideration, planning authorities can give little, moderate, or significant weight to it, depending on particular circumstances. The case-law in this area has been developing, especially post 2008 when the Climate Change Act 2008 came into force, and even though the scope for claiming climate change it is not necessarily material consideration in an appropriate case seems limited, what weight is attached and how the balancing exercise is undertaken makes interesting reading. We have seen other public interests weigh against the UK's climate goals e.g. when ClientEarth filed an action challenging the UK government's decision to approve a natural gas plant. This is where The Levelling-up and Regeneration Bill could assist, as the proposals go further as planning authorities would be expected to give ‘special regard’ to the objective of climate change.
This would mean planning authorities would be obliged to attach great weight to the objective of climate change. The weight to be attached to this consideration would be prescribed by Parliament rather than being determined by the decision-maker. We already have this when assessing development proposals concerning listed buildings. Under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, local planning authorities are under a duty to give ‘special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses’. This directs decision-makers to issues that are regarded as particularly important.
Conclusion
Local-plan making offers the opportunity to set and implement the long-term strategic vision necessary to deal with climate change; nothing should be planned without having successfully demonstrated that it is fit to take its place in a net-zero emissions future. There is more that can be done, though, through clarity and certainty regarding the role and importance of climate change considerations in the planning decision-making process.
