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Meeting Lofty Aspirations? English National Planning Policy, International Law, and Climate Change

In: Climate Law
Author:
Alistair Mills Dias College Assistant Professor in Law, Magdalene College, Cambridge, UK

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Abstract

The National Planning Policy Framework (nppf) is the primary expression of central government planning policy for England. Given the importance of the planning system for a transition to a more sustainable future, including seeking to reduce and avoid greenhouse gas emissions, the nppf is a highly significant document. The nppf refers to the ideas of sustainable development and intergenerational equity, important in international environmental law. However, intergenerational equity has scarcely featured in the many legal challenges regarding the interpretation of the nppf. Having considered the extent to which the nppf achieves the aspirations set out in the instruments to which it refers, this article suggests potential changes to policy so as to provide greater support to the aim of reducing greenhouse gas emissions.

1 Introduction

Planning permission is required for the ‘development’ of land in England. The idea of development in English planning law and policy essentially means to make significant changes in the physical environment (often known as ‘operational development’), or a material change in use of the land.1 In England, planning permission is generally obtained via individual applications for proposals, rather than on a generic or zoning basis.2 Decisions as to whether to grant planning permission for proposed development are therefore highly significant for the United Kingdom’s ability to combat climate change.3 Public bodies making such decisions are left a wide scope of judgement by the statutory regime.4 In exercising this planning judgement, planning policy plays a significant role.5 Sometimes known as the ‘planning balance’, or ‘planning judgement’, the law contemplates that a decision-maker in the planning context will have to weigh up various factors in order to decide whether a proposal will be permitted. The law provides only a modest level of control over this balancing exercise. Parliament entrusted the decision-making power to local councils, Planning Inspectors, and the Secretary of State, and the courts seek to keep interference with such decisions to a minimum. However, planning policies will influence decisions as to whether to grant planning permission.

Formal policy documents influence the way in which planning judgement, or the planning balance, is exercised. The National Planning Policy Framework (nppf) is the primary expression of central government planning policy for England. The nppf, the most recent version of which was published by the Ministry for Housing, Communities and Local Government in 2021, states that ‘The purpose of the planning system is to contribute to the achievement of sustainable development’, and sets out a ‘presumption in favour of sustainable development’.6 It includes policy on climate change,7 although it does not expressly mention meeting net zero.8 The nppf refers to the definition of sustainable development in Resolution 42/187 of the UN General Assembly,9 and to the 17 Global Goals for Sustainable Development in Transforming Our World.10 However, the current form of planning policy in the nppf allows the negative factor of greenhouse gas emissions from proposals to be outweighed by the benefits arising from the development. This is unsurprising given the role of planning judgement in the United Kingdom’s domestic planning system, but there are suitable ways in which the nppf could be tightened so as to provide more appropriate weight to reducing greenhouse gas emissions and better reflect the international instruments to which it refers. The idea of planning judgement is examined in more detail in Section 3, below. In short, it is established that the courts are to take a light-touch approach to the review of discretion, evaluative judgements, or the balancing of competing interests in the planning context.

This article starts by considering international environmental law on sustainable development, before explaining the role of judgement in the UK domestic planning system and the significance of national policy. I then set out some key elements of the nppf as it relates to the climate, before suggesting some changes.

2 The International Law of Sustainable Development, the Principle of Intergenerational Equity, and Climate Change

The idea of intergenerational equity is that the needs of both present and future generations must be balanced in an equitable manner. Whilst there is some question as to whether intergenerational equity is a part of sustainable development, or merely resembles it,11 there is substantial scholarly opinion suggesting or assuming the former view,12 and that is the approach taken in this article.

A detailed examination of international law on sustainable development is beyond the scope of this article.13 By way of a thumbnail sketch focusing on the idea of sustainable development, the starting point of modern international environmental law can be seen as the 1972 Stockholm Conference.14 This gave rise to the Declaration of the United Nations Conference on the Human Environment.15 Principle 2 states that ‘The natural resources of the earth … must be safeguarded for the benefit of present and future generations’. Dupuy and Viñuales indicate that this is an early formulation of the principle of intergenerational equity.16 However, Molinari has noted that there is no express indication in Stockholm Declaration of a conflict between the needs of the present and those of the future, and there is no mention of approaching current needs and future needs ‘equitably’.17

The year 1987 saw the publication of the Report of the World Commission on Environment and Development: Our Common Future. In Chapter 2, the Report states: ‘Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.’18 The UN General Assembly, in Resolution 42/187, endorsed Our Common Future, adopted the meaning of sustainable development in the Report, and expressly endorsed the idea of intergenerational equity.19 A similar idea appears as Principle 3 of the Rio Declaration on Environment and Development from 1992.20 Whilst the debate at the time of the Rio Conference was primarily about the competing interests of development and the environment, Principle 3 has come to be understood more as addressing tensions between the interests of the present and the future.21 The Johannesburg Declaration on Sustainable Development, adopted at the World Summit on Sustainable Development in 2002, identified three ‘pillars of sustainable development’, being ‘economic development, social development and environmental protection’.22 This characterization has gained traction as a way of considering sustainable development, and appears in English planning policy, discussed further below. As Dupuy and Viñuales have noted, the Rio Summit in 2012 made social and economic development the most important element of sustainable development,23 referring to the eradication of poverty as ‘the greatest global challenge … and an indispensable requirement for sustainable development’.24 The focus of sustainable development at the 2012 Summit was anthropocentric, with The Future We Want stating that ‘sustainable development must be inclusive and people-centred’.25 The three pillars were restated in 2015 in the opening declaration of Transforming Our World, which states: ‘We are committed to achieving sustainable development in its three dimensions – economic, social and environmental – in a balanced and integrated manner.’26 The ending of poverty was placed as the first of the Sustainable Development Goals (sdgs).

Some scholars draw a distinction between ‘strong’ and ‘weak’ conceptions of sustainable development. One explanation is that strong forms emphasize the irreplaceability of natural assets, whereas weak forms stress that the loss of some assets may be offset against the gain in other resources.27 A slightly different explanation is that weak forms permit any environmental harm to be balanced against economic considerations, whereas strong forms would introduce hard limits on permissible environmental impacts.28 The prevailing position appears to be the weak one, with limited weight being given to the needs of future generations. The idea of future generations’ interests being protected in international law has been described as ‘largely symbolic’.29 In terms of intergenerational equity,30 there is a potential tension between this objective and that of intragenerational equity.31

The significance of climate change as a critical aspect of sustainable development will be obvious to readers of this journal. It is the most significant current environmental threat affecting the world as a whole.32 sdg 13 is to ‘Take urgent action to combat climate change and its impacts’. It has been remarked that ‘There can be no sustainable development for future generations if the worst-case scenarios for climate change are not averted’.33 This is correct and, as such, this article focuses on the environmental aspect of sustainable development through the lens of climate change.34 Before turning to that in detail, it is necessary to consider the workings of the English planning system.

3 The UK Planning System: Dependent on Judgement, Informed by Policy

Most of planning control in England is governed by the Town and Country Planning Act 1990 (tcpa).35 In brief summary, planning permission is required for ‘development’, as defined by s. 55 of the tcpa. Decisions as to whether to grant planning permission are generally made by the local planning authority for the area (the local council). Applicants for permission have a right of appeal to the Secretary of State if their application is rejected.36

When determining a planning application, the decision-maker must make its decision in accordance with the statutory development plan, unless material considerations indicate otherwise.37 Read in isolation, this statutory formulation risks downplaying the important role of national planning policy. National planning policy has two main roles. It has an important role in decision-taking. National planning policy is capable of constituting a material consideration in a planning application.38 A decision-maker may therefore decide, on the basis of national planning policy, that it should depart from the outcome which the statutory development plan itself would indicate. Or, if there are material considerations other than national planning policy which may indicate that the decision should be other than that which would be suggested by the development plan, national planning policy may support the development plan approach.

The second role for national planning policy is in plan-making. Prior to their adoption by a local planning authority, local plans are examined by an Examining Inspector appointed by the Secretary of State.39 In the course of examination, a draft plan must meet two requirements: legal compliance and soundness.40 The legal requirements include s. 19(1A) of the Planning and Compulsory Purchase Act 2004 (pcpa), namely that local plans must ‘include policies designed to secure that the development and use of land in the local planning authority’s area contribute to the mitigation of, and adaptation to, climate change’. The test for soundness is set out, not in legislation, but in para. 35 of the nppf, the primary expression of national planning policy. This test includes a requirement of consistency with national planning policy.41 It is notable that consistency with national policy is for the purpose of ‘enabling the delivery of sustainable development’.42

As such, this dual role of national policy provides input both before and after adoption of the statutory development plan. The development plan policy must be consistent with national planning policy in order to be adopted, and if the statutory development plan becomes inconsistent with national planning policy (for instance, due to a change in the latter), this is capable of constituting a material consideration capable of justifying departure from the development plan. Given the potential for the planning system to contribute – positively or negatively – to the goals of reducing greenhouse gas emissions, national planning policy is worth the attention of climate law scholars.

The idea of ‘planning balance’, or ‘planning judgement’, is important in the English system. The policies in a development plan may be in tension with each other, pulling in different directions.43 For instance, a development plan might support the construction of new houses but seek to avoid construction on greenfield sites. A decision-maker will need to determine whether a proposal complies with the development plan, taken as a whole.44 This will involve the balancing of different considerations, although this is not a mathematical exercise.45 The courts have approached planning legislation and policy with an emphasis on preserving the judgement of the decision-maker.46 A policy may suggest weight to be given to considerations, or how they are to be balanced.47 If there is no indication in policy as to how the balance should be struck, the balance is generally a matter of planning judgement. However, even if policy does instruct a decision-maker as to how to balance factors, it is open to a decision-maker to depart from the policy. The House of Lords held that, whilst legislation requires priority to be given to the development plan, it ‘still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker’.48

A good demonstration of the working of the current system is provided by the decision of the Scottish Court of Session in North Lowther Energy Initiative Ltd v. Scottish Ministers.49 An energy company applied under s. 36 of the UK Electricity Act 1989 for permission to construct a new wind farm.50 This proposal for renewable-energy development would have a positive impact in terms of combatting climate change. However, it was argued that the wind farm would have an adverse landscape and visual impact.51 The Scottish Ministers agreed with the recommendation of the Reporter52 to refuse consent,53 finding that the proposal ‘would give rise to unacceptable significant adverse landscape and visual impacts as well as adversely impact on the historic setting of Wanlockhead’.54

The Reporter noted that both the Scottish Ministers and Dumfries and Galloway Council (within whose administrative area the application lay) had declared a climate emergency.55 However, these declarations were not ‘embedded in policy’, and so were given limited weight.56 The Reporter also noted that meeting net zero by 2045 (the target in Scotland) would constitute a substantial challenge, which offshore wind would assist in meeting.57 The Reporter found that ‘contributions towards reducing greenhouse gas emissions and [tackling] climate change are very important considerations in the determination of a wind farm application’.58 He nevertheless said ‘there is (at present) no policy direction that proposals which aid the reduction in greenhouse gas emissions and help tackle climate change should be given disproportionate weight in decision-making to the extent that other considerations should be set-aside or disregarded’.59 He noted that climate change aspects of a development had to be balanced with other planning considerations, and it had to be considered ‘whether a proposal is the right development in the right place weighing the costs and benefits over the longer term’.60 The Reporter found significant effects on the visual environment.61 These impacts were included in the decision that the negative impacts of the development outweighed the benefits, such that consent should be refused. The Court held that the consideration which the Reporter had given to climate change impacts was legally flawless.62 The balance of considerations was a matter of judgement, and there was ‘nothing in any of the policies or legislation that states that renewable energy or climate change issues should be the sole or determining factor’. It was lawful to give greater weight to the landscape and visual issues.63

This is the orthodox approach to a situation in which judgement has to be exercised, weighing up a number of factors. It is a useful demonstration of a number of important points. First, the fact that public authorities express their concern through a ‘climate emergency’ does not mean that climate change factors will be given overriding significance in decision-making processes.64 Second, policy content is highly significant to the way in which such decisions will be made, for the fact that a point is not reflected in policy may be relevant to the weight given to it. Third, the intensity of the court’s review of such decisions is light-touch, being based on administrative law principles.65

The fact that the North Lowther Energy Initiative case was made in the Scottish jurisdiction, and made under an application for consent under the UK Electricity Act 1989, does not prevent this being a clear demonstration of a lawful approach to balancing the climate change impacts of a particular development proposal. Judges do not intervene just because they consider that climate change impacts have been given insufficient weight. In an English planning case challenging refusal of permission for a wind turbine, North Cote Farms Ltd v. Secretary of State for Communities and Local Government, the judge stated that ‘The assessment of facts and weighing of considerations is in the hands of the Inspector alone and the Court has no power to intervene; matters of planning judgement are entirely for the Inspector’.66 The Inspector had held that, whilst the turbine would produce renewable energy, it would cause some harm (less than substantial harm) to heritage assets, and the benefits of the proposal did not outweigh the harm.67 The challenge to the Inspector’s decision was dismissed. So long as the weight given to climate change factors is not unreasonable (unreasonableness, or irrationality, constituting a high threshold in English administrative law), a court will not interfere.

Section 1 of the UK Climate Change Act 2008 was amended following the Paris Agreement to introduce the target of net zero carbon emissions by 2050.68 However, the Act does not impose an express duty upon local planning authorities in their decision-making functions.69 The approach to climate change in planning policy is therefore crucial in order to influence decisions regarding the built environment.

4 The National Planning Policy Framework: Planning for Sustainable Development?

The nppf states that ‘The purpose of the planning system is to contribute to the achievement of sustainable development’,70 before saying:

At a very high level, the objective of sustainable development can be summarised as meeting the needs of the present without compromising the ability of future generations to meet their own needs.[71] At a similarly high level, members of the United Nations – including the United Kingdom – have agreed to pursue the 17 Global Goals for Sustainable Development in the period to 2030. These address social progress, economic well-being and environmental protection.[72]

It has been argued that the definition of sustainable development in Our Common Future (adopted in UN Resolution 42/187) ‘begs elaboration’73 and ‘requires further elaboration’.74 It has been suggested that, in the international context, the concept of sustainable development has been kept deliberately vague.75 Sustainable development has been described as ‘more a slogan than anything else’.76

The nppf sets out three ‘objectives’ for the planning system: economic, social, and environmental.77 These are the same as the ‘pillars’ featuring in the Johannesburg Declaration and the ‘dimensions’ set out in Transforming Our World. The nppf goes on to say that the objectives ‘should be delivered through the preparation and implementation of plans and the application of policies in [the nppf]; they are not criteria against which every decision can or should be judged’.78 It is therefore to the policies of the nppf itself that one should look to see how the UK Government considers that sustainable development should be achieved through the planning system. Indeed, Collins J. has stated that ‘What is sustainable development requires over 300 paragraphs of the nppf to determine, but there it is’.79 The plethora of considerations to be balanced under the approach in the nppf shows that it adopts a ‘weak’ conception of sustainable development.

Notwithstanding the references to UN Resolution 42/187 and to Transforming Our World, these sources have played little part in the considerable volume of litigation80 on the nppf;81 and despite the recognition of the principle of intergenerational equity in the summary of sustainable development in the nppf, a leading student text in environmental law states that the principle has ‘no identifiable role in … UK law to date’.82 Given that the nppf purports to explain what sustainable development – as defined in UN Resolution 42/187 – means for the planning system, the courts should not use the Resolution to determine that sustainable development means something else in the nppf.

There has been only one reported case in which a claimant has attempted to rely on the Resolution’s definition of sustainable development.83 In the Scrivens case, the (unrepresented) claimant sought to challenge two decisions by Planning Inspectors. He argued that, in order to constitute sustainable development, a proposal must meet the requirement of ‘autarky’ – being self-sufficient in terms of energy, water, or anything else needed in the twenty-first century. He devised a prescriptive approach to sustainability in the planning context. The claimant argued that, once he had showed that his proposals complied with this prescriptive approach, permission should have been granted, and the Planning Inspectors therefore erred in law in refusing to do so. The claimant’s challenge was rejected in the High Court. Collins J. refrained from providing a comprehensive definition of sustainable development.84 He held that there were other considerations which were to be taken into account when determining whether the dwellings should be permitted, including the design and the suitability of the location for the proposed development. Future generations could be harmed by development which has a negative impact on the countryside, and so the energy credentials of the proposed development were not the only factors to be considered. Ultimately, Planning Inspectors are entitled to exercise their judgement.

The result in the Scrivens case is unsurprising, given the emphasis that English courts place upon the planning judgement of decision-makers. Further, the claimant was relying on a ‘strong’ conception of sustainable development, whereas Collins J. implicitly found that the nppf follows a ‘weak’ conception.85 Scrivens is clearly correctly decided as a matter of domestic law. Parliament has given the task of determining planning applications to the local planning authority, or to a Planning Inspector on appeal (with the possibility that the appeal be ‘recovered’86 for the Secretary of State’s own determination). There is sense to have decisions requiring the balancing of incommensurable values to be taken by an official who is democratically accountable, rather than by a court. However, as planning decisions are guided by policy, the content of that policy is highly significant.

4.1 The Content of the nppf

Having considered the international environmental law of intergenerational equity, does the nppf reflect the definition in UN Resolution 42/187 to which it refers? At para. 11, the nppf contains the presumption in favour of sustainable development. This is a highly significant element of the Framework.87 The plan-making and decision-taking functions of the nppf, mentioned above, are separated out in para. 11. The element regarding plan-taking includes that plans should seek to ‘meet the development needs’ of the area, as well as mitigating climate change. The decision-taking element specifies two consequences. The first is that ‘development proposals that accord with an up-to-date development plan’ should be approved ‘without delay’. The second consequence (in para. 11(d)) applies in circumstances ‘where there are no development plan policies, or the policies which are most important for determining the application are out-of-date’. In such a situation, planning permission should be granted unless one of two exceptions applies. The first is that the application of certain policies protecting specific sites, assets or designations, set out in footnote 7 to the Framework, ‘provides a clear reason for refusing the development proposed’. The second, at para. 11(d)(ii), is known as the ‘tilted balance’, and applies where ‘any adverse impacts of [granting permission] would significantly and demonstrably outweigh the benefits, when assessed against the policies in [the nppf] taken as a whole’. There is no express consideration of climate impacts in the decision-taking element.

The presumption in favour of sustainable development is not entirely silent on climate change. Mitigation of climate change is one of the goals of the plan-making process. Because the starting point is that development should be in line with the development plan, requiring plans to mitigate climate change should mean that development proposals also seek to achieve this objective. However, what if there is no up-to-date development plan? None of the policies specified in footnote 7 of the nppf specifically concern climate change. Instead, they concern the impacts on particular areas, sites, or assets (such as heritage assets). Therefore, where an application is considered under para. 11(d) of the nppf, climate change would prevent development from taking place only where it contributes to the higher threshold in the tilted balance being reached in para. 11(d)(ii).

In litigation concerning the nppf in its original (2012) formulation, there was some debate as to whether there was an independent test to the effect that development had to be sustainable, in order to take the benefit of the presumption in favour of sustainable development. In early cases, there was a suggestion that the presumption in favour of sustainable development applied only to development that was independently found to be sustainable.88 This position was ultimately rejected by the courts. In Trustees of the Barker Mill Estate v. Test Valley bc,89 Holgate J. drew a distinction between a general definition of sustainable development and a presumption in favour of sustainable development. He held that the latter is conclusively found in what is now para. 11 of the nppf. Lang J., who had been an early proponent of the idea of separate consideration of a presumption in favour of sustainable development, came to accept that this was not the ‘current prevailing interpretation’ of the policy.90 The idea that there was only one presumption in favour of sustainable development, to be found in the current para. 11, was accepted by the Court of Appeal in East Staffordshire bc.91

As such, there is no requirement for a decision-maker independently to consider the approach to sustainability in UN Resolution 42/187 or Transforming Our World, before considering that the presumption in favour of sustainable development in the nppf could apply. This may be thought not to be a problem, if the remainder of the nppf provides sufficient means of ensuring that such goals and aims are met.

There is, however, a more fundamental question, which is whether a ‘weak’ approach to sustainable development, which permits any planning consideration to be balanced against climate change factors, is truly consistent with the definition in UN Resolution 42/187. Bell and colleagues have emphasized that the word used in the Report of the World Commission is ‘needs’, and they point out that ‘Needs are distinguishable from preferences’.92 There is clearly a ‘need’ to limit and mitigate the effects of climate change. By contrast, it is questionable whether, considering the approach in North Lowther Energy Initiative, avoiding landscape and visual impact is a ‘need’. As such, if the planning system is truly seeking sustainable development as defined in the Resolution, how could a contribution to combatting climate change ever be outweighed by landscape considerations? The answer may be that the nppf refers to the Resolution’s definition as a summary of ‘the objective of sustainable development’, ‘At a very high level’.93 Further, the same paragraph of the nppf mentions the 17 Global Goals in Transforming Our World, already recognized as emphasizing the social and economic aspects of sustainable development.

Another difficulty with the use of the international concept of sustainable development in the nppf is that, when there is reference in the nppf to ‘development’, this has been taken to mean development as defined in s. 55 of the tcpa.94 In order to promote the goals of sustainable development, in the sense meant in international instruments, awareness of and interest in international law on this topic may be important.95 There is no specific reference to the Paris Agreement in the nppf. The Agreement is so far yet to have an impact on the interpretation of the nppf.96

4.2 Specific Consideration of Climate Change in the nppf

There are a number of references to climate issues in the nppf, outside of the presumption in favour of sustainable development.97 Strategic policies in local plans are required to make sufficient provision for ‘planning measures to address climate change mitigation and adaptation’.98 It is noted that access to high-quality open spaces can help address climate change.99 In a similar vein, the nppf states that trees ‘can help mitigate and adapt to climate change’.100

Section 14 of the nppf is entitled ‘Meeting the challenge of climate change, flooding and coastal change’. Much of the policy contained in this section concerns planning to ensure that the effect of climate change impacts is mitigated, rather than seeking to prevent or reduce climate change. However, there is support for a transition to a low-carbon future101 and reducing greenhouse gas emissions.102 The nppf sets out policy aimed to ‘help increase the use and supply of renewable and low carbon energy and heat’.103 National policy provides support for small-scale renewable and low-carbon energy projects.104 When considering individual development proposals for renewable and low-carbon development, para. 158 states that local planning authorities should not require the need for low-carbon or renewable energy to be demonstrated, and that ‘even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions’.

Whilst this policy does seem promising, as it considers the need to avoid and limit climate change, there are respects in which the nppf is not so supportive. Footnote 54 to para. 158(b) makes clear that onshore wind-turbine development should be refused unless, first, the proposal is for development within a specific area demarcated for that purpose in the development plan; second, the proposal has the backing of the local community; and, third, the negative impacts have been fully addressed following consultation. The introduction of a restrictive policy regarding onshore wind, and the removal of related financial subsidies, have been considered in research by Rebecca Windemer.105 She found a striking reduction in the maximum installed capacity of permitted onshore wind development, with the figure for the period 2016-2021 being only 2.6% of that for the period 2009-2014. Consistently with the thrust of Windemer’s findings, the UK’s Growth Plan observed that ‘no new substantive onshore wind farm has received planning consent since 2015’.106

National planning policy provides very high levels of protection to the Green Belt, a spatial designation which relates to the openness of land rather than any particular environmental interest. Most types of development in the Green Belt are deemed to be inappropriate development, including ‘elements of many renewable energy projects’.107 Inappropriate development in the Green Belt should be permitted only in very special circumstances.108 While the fact that a development proposal is for a renewable-energy project does not prevent it from being inappropriate development in the Green Belt, nor does it automatically mean that very special circumstances will be demonstrated, ‘very special circumstances may include the wider environmental benefits associated with increased production of energy from renewable sources’.109

By contrast with protection of the Green Belt, nppf policy does not mandate how much weight greenhouse gas emissions should carry in determining whether to grant planning permission. In R (Goesa Ltd) v. Eastleigh bc, the High Court considered a challenge to a decision to proposed development of Southampton Airport, including the extension of the runway. Holgate J. noted that there was no guidance as to how to gauge the significance of the impact of the anticipated greenhouse gas emissions – what the claimant referred to as the ‘affordability’ of such emissions in comparison to national budgets or targets.110 The decision-maker’s approach of considering the anticipated emissions as a percentage of a national budget or target was lawful:

On the basis of current policy and law it is permissible for a planning authority to look at the scale of the ghg emissions relative to a national target and to reach a judgment, which may inevitably be of a generalised nature, about the likelihood of the proposal harming the achievement of that target. There was nothing unlawful about the inevitably broad judgment reached in the present case.

There was a wide margin of appreciation for how a decision-maker exercised its judgement in this context of scientific predictions.111 The Council had given ‘significant weight’ to the climate impact of the proposal,112 but nevertheless considered that permission should be granted. This decision was lawful.

Planning permission can be granted on an outline basis, subject to a condition that certain points of detail are addressed for subsequent consideration as ‘reserved matters’,113 namely access, appearance, landscaping, layout, and scale.114 The High Court considered a challenge to an outline planning permission for residential-led development in R (Hewitt) v. Oldham mbc.115 One of the grounds of challenge was that the local planning authority had failed to consider material policy in the nppf. The Council submitted that the climate change aspects of the proposal could be considered under a reserved-matters application.116 Knowles J. held that the nppf permitted aspects of a proposed development concerning energy supply and consumption to be considered at the appropriate point,117 which meant that it did not have to be determined at the point of considering the outline planning permission but could be left to the determination of reserved matters. Whilst this reasoning has some force, there is a risk that it may lead to climate considerations being watered down. Once outline permission has been granted, it is not possible for a council to depart from what has been permitted: ‘the outline permission sets the perimeters or framework for the consent which is being granted and following which reserved matters are then submitted’.118 As such, if considering how much a proposal would contribute to increasing climate change is left to the stage of reserved matters, there is a risk that the die is already cast: it will not be possible to go back on the principle of a proposal which could be said to risk unacceptable climate harm.119

5 Potential Changes to the nppf

5.1 Changes Being Considered to the nppf

The UK Government has consulted on potential amendments to the nppf, and, at the time of writing, was considering the responses to the consultation.120 Most of the potential amendments are not expressly about climate matters121 but relate to issues including beauty and housebuilding rates. There is, however, an emphasis on repowering, maintenance, and life-extension of renewable-energy sites. There is, perhaps, a slight softening of policy restrictions on onshore wind development. Rather than requiring that planning impacts identified by the local community must be ‘fully addressed’, they would have only to be satisfactorily addressed; rather than requiring the community’s backing, it would be enough to show ‘community support’. Given the impacts of the current policy identified by Windemer, this would be a beneficial change in terms of increasing the amount of renewable-energy development permitted.

The consultation version of the nppf would however preserve the current formulation of the tilted balance in relation to decision-taking, and would maintain the tilted balance in its existing form. As will be explained below, amended wording would better reflect the definition of sustainable development in UN Resolution 42/187. My view is that the Government should take on these changes as part of the wider review of the nppf proposed for 2023.122

5.2 Legislation as an Answer?

At the time of writing, the Levelling Up and Regeneration Bill was going through the UK Parliament. One backbencher-amendment to the Bill proposed in the House of Lords would make climate change a mandatory consideration in decisions made under the tcpa and require that special regard is had ‘to the objective of achieving the mitigation of, and adaptation to, climate change’.123 The language of ‘special regard’, echoing that in the Planning (Listed Buildings and Conservation Areas) Act 1990, has been interpreted as indicating that a decision-maker must give ‘considerable importance and weight’ to a factor.124

The Government has not supported this proposed amendment, and it does not feature in the post-Committee draft of the Bill.125 Instead, the Government relies on existing and proposed legislative requirements regarding the content of local plans,126 as well as the content of the nppf and future amendments to the nppf.127 The Independent Review of Net Zero likewise recommends amendments to the nppf.128

5.3 Amendments to the nppf

In the view of some scholars, it would be inconsistent with the definition of sustainable development in UN Resolution 42/187 to permit any material planning consideration to be balanced against the need to avoid or reduce greenhouse gas emissions. On this approach, only something which relates to the ‘needs’ of current or future generations could be balanced against the ‘need’ to combat climate change. This would provide a greater level of legal control over decision-making, and would likely reduce greenhouse gas emissions. However, it would constitute a sea-change in the approach to planning policy or law.

A second, demanding, possible change to planning policy is the ‘net zero test’ recommended in Independent Review of Net Zero, namely that (in due course) all developments be required to be ‘net zero compliant’.129 This would doubtless be a positive step in terms of attempting to reduce or avoid climate change. However, the Review appears to contemplate that such a change may be some way off. In any event, given the role of judgement in the planning system, it may well be that, if net zero compliance were included in the nppf, it would not be expressed as an absolute prohibition. Even if it were, the decision-maker may be able lawfully to depart from it.

The approach of redefining the concept of need, or introducing a ‘net zero’ test, are likely too ambitious to be adopted at this stage. There are more modest, and more achievable, changes which could be made to the nppf. However, these are steps along the journey of giving increasing importance to greenhouse gas emissions in development proposals. Even if these proposals were to be adopted, this would not necessarily mean that all decisions would be optimized to reduce greenhouse gas emissions: it would likely be open to a decision-maker to grant permission if it considered that this was what the planning balance required. Ultimately, the best solution in terms of limiting greenhouse gas emissions is likely to be a legislative one (although not one which appears politically acceptable at present).

The nppf should include a number of new duties. First, there should be an obligation to consider climate change in any planning application. Second, policy should set particular weight (that of ‘considerable importance and weight’) to be given to the need to avoid or reduce greenhouse gas emissions in decision-making. Third, para. 11 of the nppf should be amended so as to increase the significance of greenhouse gas emissions in circumstances where there is no up-to-date development plan. Fourth, the nppf should indicate that development-plan policies should give greater weight to the need to avoid and reduce greenhouse gas emissions.

Samuel Ruiz-Tagle has pointed out that there is no paragraph of the nppf that requires climate change to be considered in every planning application.130 Many, although not all, local authorities have an overarching objective concerning climate change.131 It would be a positive step were national planning policy to require climate change to be considered in decision-taking, as not all local authorities do consider greenhouse gas emissions as a material consideration, even to some extent.132

As to weight, climate change considerations should be given considerable importance and weight in planning applications, as was essentially suggested by amendments to the Levelling Up and Regeneration Bill recommended by Ruiz-Tagle. Furthermore, the nppf should contain a declaration of a climate emergency, so as to avoid the problem in the North Lowther Energy Initiative case, namely that, where such declarations do not feature in policy, decision-makers may give them little weight.

The fact that the tilted balance applies does not mean that planning permission will necessarily be granted, or that an appeal will certainly be allowed. Nevertheless, if a decision-maker adopts the tilted balance, this provides support for permission being granted. The nppf suggests in those circumstances that policies in the development plan which suggest that permission should be refused should be given less weight than would otherwise be the case.133

The presumption in favour of sustainable development needs to be amended in order better to reflect the idea of sustainable development as set out in UN Resolution 42/187 and the 17 Global Goals for Sustainable Development. The policies in nppf footnote 7 concerning the tilted balance do not include the prevention of climate change. To this end, paragraph 11(d) of the nppf could be amended to include unacceptable consequences for greenhouse gas emissions as a specific reason why permission could be refused, rather than having to rely on the tilted balance. This is not to say that the consideration of sustainability, even taking into account the meaning of intergenerational equity, requires development permission always to be refused. Failing to build enough homes and infrastructure for present and future generations would be contrary to the definition of sustainability in UN Resolution 42/187. sdg 11 is to ‘Make cities and human settlements inclusive, safe, resilient and sustainable’. Paragraph 11.1 of Transforming Our World provides: ‘By 2030, ensure access for all to adequate, safe and affordable housing and basic services and upgrade slums.’ There is widespread (albeit not unanimous) belief that there is a housing crisis in the United Kingdom, in addition to the global climate crisis. The Secretary of State for Levelling Up, Housing and Communities has stated that ‘we have an urgent need in this country to build more homes so that everyone – whether they aspire to home ownership or not – can have a high-quality, affordable place to live’.134

The proposed change to the nppf would not suggest that any emission of greenhouse gases would require that planning permission be refused. It would not prevent the decision-maker from exercising its planning judgement as thought to be appropriate on the facts of a particular case. It would, however, put issues of climate change front and centre in controversial applications where adequate guidance is not provided by the development plan. It would provide a reason for permission to be refused under the tilted balance where the proposal would have unacceptable impacts in terms of greenhouse gas emissions. Examples of unacceptable impacts may include materially prejudicing the United Kingdom’s ability to meet targets in a carbon budget, where there is a viable alternative that would lead to lower greenhouse gas emissions and where the entailed greenhouse gas emissions would be disproportionate to any benefit which would be obtained in planning terms.

The changes which have been recommended so far to the nppf relate to the decision-making function of planning authorities. A further change which could be made would be in relation to plan-making functions. At present, nppf para. 153 encourages plans to ‘take a proactive approach to mitigating … climate change’. The requirements of s. 14 of the nppf regarding climate change are considerably less forceful than those regarding the protection of the Green Belt,135 statutory listed buildings and conservation areas,136 and veteran trees.137 These considerations may well be very important. However, it is striking that they have a higher level of protection than the climate, in circumstances where climate change poses an existential threat to our way of life. One possible amendment to the nppf would be that, in plan-making, local planning authorities should seek to reduce greenhouse gas emissions and harmful climate emissions from proposed development as much as practicable, unless very special circumstances can be demonstrated. In terms of decision-taking, the weight to be given to the harmful effects of greenhouse gas emissions could be increased, as could the positive weight to be given to the benefits of renewable-energy development.

6 Conclusion

English national planning policy, expressed in the nppf, does not currently live up to the definition of sustainable development in the international instruments to which it refers. The sdgs in Transforming Our World include ‘integrat[ing] climate change measures into national policies, strategies and planning’. The fight against climate change requires robust decision-making and action, from the international level down to local decision-making. The English planning system, in emphasizing the role of judgement for the decision-maker and considering each application on its merits, requires a considerable policy steer in order that planning decision-makers are giving climate issues the weight they deserve. At present, the nppf is not performing as potent a role as it could in ensuring that the planning system is doing all it can to meet the needs of the future through combatting climate change, as the concept of sustainable development requires.

Acknowledgements

I am grateful to participants at the Climate Regime and Public International Law PhD/Early Career Researcher Workshop, held at the Lauterpacht Centre for International Law in December 2022, for comments and discussion of a paper on which this article is based. I am particularly grateful to Jacqueline Peel, Margaret Young, Markus Gehring, Samuel Ruiz-Tagle, and Alexander Zahar for their comments. This article contains public-sector information licensed under the UK Open Government Licence v3.0.

1

UK Town and Country Planning Act 1990, s. 57.

2

Planning permission has been granted for certain types of development, known as ‘permitted development’, under the Town and Country Planning (General Permitted Development) (England) Order 2015. However, major changes including the construction of new dwelling-houses would generally require planning permission. In the summer of 2020, the Government proposed changing to a more zoning-based system: <www.gov.uk/government/consultations/planning-for-the-future>. This proposal has not been adopted.

3

Data released for cop 27 indicate that ‘buildings represented around 37 per cent of global CO2 emissions in 2021’: UN Environment Programme, 2022 Global Status Report for Buildings and Construction: Towards a Zero-Emission, Efficient and Resilient Buildings and Construction Sector, Nairobi, <https://globalabc.org/our-work/tracking-progress-global-status-report>, xvi.

4

Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 wlr 759, 777, 780.

5

See Alistair Mills, ‘The Interpretation of Planning Policy: The Role of the Court’, 34(3) Journal of Environmental Law 419 (2022).

6

Ministry for Housing, Communities and Local Government, National Planning Policy Framework, July 2021, paras. 7, 10-11.

7

Ibid., especially Section 14.

8

This is noted in Felicia Rankl, Abigail Collins, Roger Tyers, and Dominic Carver, The Role of Local Government in Delivering Net Zero, House of Commons Library, 2 June 2023, Number cdp-2023-0122, 11.

9

UN General Assembly Resolution 42/187, Report of the World Commission on Environment and Development, A/42/49 (1987).

10

UN General Assembly Resolution 70/1, Transforming Our World: The 2030 Agenda for Sustainable Development, A/70/L.1 (2015).

11

Claire Molinari, ‘Principle 3: From a Right to Development to Intergenerational Equity’, in The Rio Declaration on Environmental and Development: A Commentary, edited by Jorge E. Viñuales (Oxford: Oxford University Press, 2015), 154-5.

12

Philippe Sands and Jacqueline Peel, with Adriana Fabra and Ruth MacKenzie, Principles of International Environmental Law, 4th ed. (Cambridge: Cambridge University Press, 2018), 218; Philippe Sands, ‘Environmental Protection in the Twenty-first Century: Sustainable Development and International Law’, in Richard L. Revesz, Philippe Sands, and Richard B. Stewart, Environmental Law, the Economy, and Sustainable Development (Cambridge: Cambridge University Press, 2000), 374; and Alan Boyle and Catherine Redgwell, Birnie, Boyle, and Redgwell’s International Law and the Environment, 4th ed. (Oxford: Oxford University Press, 2021), 122.

13

For a useful guide, see Pierre-Marie Dupuy and Jorge E. Viñuales, International Environmental Law, 2nd ed. (Cambridge University Press: 2018), from which many of the sources in this section are drawn. See also Peter H. Sand, ‘Origin and History’, in Lavanya Rajamani and Jacqueline Peel (eds), The Oxford Handbook of International Environmental Law, 2nd ed. (Oxford: Oxford University Press, 2021).

14

Dupuy and Viñuales, supra note 13, 9.

15

Declaration of the United Nations Conference on the Human Environment, Stockholm, UN Doc. a/conf 48/14/Rev.1 (1972).

16

Dupuy and Viñuales, supra note 13, 9.

17

Molinari, supra note 11, 140.

18

Report of the World Commission on Environment and Development: Our Common Future, 10 March 1987. This definition was adopted in Marie-Claire Cordonier-Segger and Ashfaq Khalfan, Sustainable Development Law (Oxford: Oxford University Press, 2004), 2.

19

UN Resolution 42/187, supra note 9, para. 4.

20

Rio Declaration on Environment and Development, UN Doc. a/conf.151/26 (1992), <www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151_26_Vol.I_Declaration.pdf>. For commentary, see Viñuales, supra note 11.

21

Molinari, supra note 11, 143-4.

22

Report of World Summit on Sustainable Development in Johannesburg, Resolution 1, Annex, Johannesburg Declaration on Sustainable Development, UN Doc. a/conf.199/20 (2002), para. 5.

23

Dupuy and Viñuales, supra note 13, 22-3.

24

UN General Assembly Resolution 66/288, The Future We Want: Outcome Document of the United Nations Conference on Sustainable Development, Rio+20, a/res/66/288 (2012), para. 2.

25

Ibid., para. 31.

26

Transforming Our World, supra note 10, Declaration, para. 2.

27

Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes, Environmental Law, 9th ed. (Oxford: Oxford University Press, 2017), 62-63.

28

Explained in Michael Jacobs, ‘Sustainable Development as a Contested Concept’, in Fairness and Futurity: Essays on Environmental Sustainability and Social Justice, edited by Andrew Dobson (Oxford: Oxford University Press, 1999), 31-2.

29

Isabelle Michallet, ‘Equity and the Interests of Future Generations’, in Ludwig Krämer and Emanuela Orlando (eds) Principles of Environmental Law (Cheltenham: Edward Elgar, 2018), 152.

30

See Werner Scholtz, ‘Equity’, in Rajamani and Peel, supra note 13.

31

See Virginie Barral, ‘The Principle of Sustainable Development’, in Krämer and Orlando, supra note 29, 108.

32

As to climate change and international environmental law, see Lavanya Rajamani and Jacob D. Werksman, ‘Climate Change’, in Rajamani and Peel, supra note 13, especially 502-10.

33

Marie-Claire Cordonier-Segger, ‘Intergenerational Justice in the Paris Agreement on Climate Change’, in Marie-Claire Cordonier-Segger, Marcel Szabó, and Alexandra R. Harrington (eds), Intergenerational Justice in Sustainable Development Treaty Implementation: Advancing Future Generations Rights Through National Institutions (Cambridge, UK: Cambridge University Press, 2021), 752.

34

And especially on seeking to reduce or prevent climate change, although adapting to climate change is also highly important: Lisa Grow Sun and Brandon Curtis, ‘Urban Planning and Climate Change’, in David A. Farber and Marjan Peeters (eds), Climate Change Law (Cheltenham: Edward Elgar, 2016).

35

‘Nationally Significant Infrastructure Projects’ are governed by the UK Planning Act 2008.

36

Usually determined by a Planning Inspector.

37

tcpa s. 70(2); Planning and Compulsory Purchase Act 2004 (pcpa), s. 38(6).

38

R (Lochailort Investments Ltd) v. Mendip DC [2020] ewca Civ 1259, [2021] 2 p&cr 9, para. 33.

39

pcpa, s. 20.

40

pcpa, s. 20(5).

41

Although this does not mean that every policy of the plan being examined has to be consistent with every paragraph of the nppf: R (Plant) v. London Borough of Lambeth [2022] ewhc 3079 (Admin), para. 67.

42

nppf para. 35(d).

43

R v. Rochdale mbc, ex p. Milne (No. 2) [2001] Env lr 22.

44

R (Corbett) v. Cornwall Council [2020] ewca Civ 508, [2020] jpl 1277.

45

East Staffordshire bc v. Secretary of State for Communities and Local Government [2017] ewca Civ 893, [2018] ptsr 88, para. 50.

46

Ibid.

47

E.g. nppf paras 199-202 regarding loss of, or harm to, designated heritage assets.

48

City of Edinburgh Council v. Secretary of State for Scotland [1997] 1 wlr 1447, 1458. This decision concerned a Scottish provision equivalent to s. 38(6) of the pcpa.

49

[2021] csoh 104, 2021 slt 1541.

50

Consent for a new electricity-generating station under s. 36 may be accompanied by a deemed grant of planning permission for the proposal. In Scotland, the provision is s. 57 of the Town and Country Planning (Scotland) Act 1997. The equivalent provision in England is s. 90 of the tcpa.

51

For the contribution of law in regulating wind-farm applications, see Elizabeth Fisher, ‘Law and Energy Transitions: Wind Turbines and Planning Law in the UK’, 38(3) Oxford Journal of Legal Studies 528 (2018).

52

A civil servant appointed to deal with planning matters in Scotland; the equivalent of a Planning Inspector in England.

53

[2021] csoh 104, 2021 slt 1541, para. 6.

54

Scottish Ministers’ Decision Letter, quoted in judgment, para. 5.

55

Reporter’s report, para 2.68, cited in judgment, para. 48.

56

Ibid.

57

Reporter’s report, para 2.70, cited in judgment, para. 48.

58

Reporter’s report, para 2.71, cited in judgment, para. 48.

59

Ibid.

60

Ibid.

61

Reporter’s report, para 6.3 cited in judgment, para. 7.

62

Supra note 53, para. 50.

63

Ibid., para. 51.

64

A climate emergency has been declared by a high proportion of UK local authorities: Association for Public Sector Excellence, Rising to the Climate Change Challenge: The Role of Housing and Planning Within Local Authorities (May 2022), 3.2.

65

See Joanna Bell and Elizabeth Fisher, ‘The Heathrow Case in the Supreme Court: Climate Change Legislation and Administrative Adjudication’, 86(1) Modern Law Review 226 (2022). For an overview of the role of climate change in English administrate law, see Nick Scott, ‘Administrative Law and Climate Change’, <https://climatehughes.org/law-and-climate-atlas/administrative-law-and-climate-change/>.

66

[2015] ewhc 292 (Admin), para. 7.

67

Inspector’s decision, paras. 40 and 42; quoted in judgment, para. 33.

68

Climate Change Act 2008 (2050 Target Amendment) Order 2019.

69

See e.g. Bristol Airport Action Network Co-Ordinating Committee v. Secretary of State for Levelling Up, Housing and Communities [2023] ewhc 171 (Admin).

70

nppf, para. 7.

71

Footnote 4 in original: ‘Resolution 42/187 of the United Nations General Assembly.’

72

Footnote 5 in original: ‘Transforming our World: the 2030 Agenda for Sustainable Development.’

73

Boyle and Redgwell, supra note 12, 121.

74

Bell et al., supra note 27, 58.

75

Jorge E. Viñuales, ‘Sustainable Development’, in Rajamani and Peel, supra note 13, 285.

76

Ludwig Krämer, ‘Time to Think: Sustainable Development, Future Generations and the Individual’, in Cordonier-Segger et al., supra note 33, 212.

77

nppf, para. 8. Paragraph 8(c) further explains the environmental objective as including ‘mitigating and adapting to climate change, including moving to a low carbon economy’.

78

nppf, para. 9.

79

Holiday Extras Ltd v. Crawley bc [2016] ewhc 3247 (Admin), [2017] Env lr 27, at [29]. Collins J. was speaking about the original (2012) version of the nppf; the current version has 223 paragraphs (including the first Annex).

80

As to that litigation, see Alistair Mills, Interpreting the nppf: The New National Planning Policy Framework (Bath Publishing: 2018).

81

It has been suggested that the role of judges in making intergenerational equity a reality will be significant: Michallet, supra note 29, 157.

82

Elizabeth Fisher, Bettina Lange, and Eloise Scotford, Environmental Law: Text, Cases, and Materials (Oxford: Oxford University Press, 2019), 223. Viñuales has suggested that, on the international plane, the concept of sustainable development itself does not yet have a decision-making function, but is capable of influencing policy or interpretation: supra note 75, 293-99.

83

Scrivens v. Secretary of State for Communities and Local Government [2013] ewhc 3549 (Admin), [2014] jpl 521.

84

Ibid., para. 15.

85

In Cheshire East bc v. Secretary of State for Communities and Local Government [2016] ewhc 571 (Admin), [2016] ptsr 1052, Jay J. stressed, at para. 10, that the idea of sustainable development in the nppf involves a balance, which is struck in the terms of what is now para. 11 of the nppf, addressed below.

86

The Secretary of State has the power to determine appeals himself or herself, rather than them being determined by a Planning Inspector: Town and Country Planning Act 1990, schedule 6, para. 3. Such appeals are known as ‘recovered’ appeals: <www.gov.uk/government/collections/planning-applications-called-in-decisions-and-recovered-appeals>.

87

For commentary, see Mills, supra note 80, 37-47.

88

William Davis Ltd v. Secretary of State for Communities and Local Government [2013] ewhc 3058 (Admin) (Lang J.); Dartford bc v. Secretary of State for Communities and Local Government [2014] ewhc 2636 (Admin), [2015] 1 p&cr 2, para. 54 (Patterson J.); Cheshire East bc v. Secretary of State for Communities and Local Government [2015] ewhc 410 (Admin), para. 21 (Lang J.).

89

[2016] ewhc 3028 (Admin), [2017] ptsr 408, para. 126.

90

Keith Langmead Ltd v. Secretary of State for Communities and Local Government [2017] ewhc 788 (Admin), [2017] jpl 1031, para. 34.

91

Supra, note 45, para. 35.

92

Bell et al., supra note 27, 63.

93

nppf, para. 7.

94

Fordent Holdings Ltd v. Secretary of State for Communities and Local Government [2013] ewhc 2844 (Admin); [2013] 2 p&cr 12, paras 17-18.

95

See C. G. Weeramantry, ‘Achieving Sustainable Justice Through International Law’, in Marie-Claire Cordonier-Segger and C. G. Weeramantry (eds), Sustainable Development Principles in the Decisions of International Courts and Tribunals 1992-2012 (London: Routledge, 2017), 124.

96

For the limited role of the Paris Agreement in domestic planning litigation, see e.g. Bristol Airport Action Network Co-Ordinating Committee v. Secretary of State for Levelling Up, Housing and Communities [2023] ewhc 171 (Admin).

97

Samuel Ruiz-Tagle has argued that ‘climate change constitutes an overarching planning policy objective in the nppf’: Written Evidence on the Levelling Up and Regeneration Bill, House of Commons – Committee Stage’, para. 7, <https://bills.parliament.uk/publications/47951/documents/2318>.

98

nppf, para. 20(d).

99

Ibid., para. 98.

100

Ibid., para. 131.

101

Ibid., para. 152.

102

Ibid., para. 154(b).

103

Ibid., para. 155.

104

Ibid., para. 156.

105

Rebecca Windemer, ‘The Impacts of the 2015 Onshore Wind Policy Change For Local Planning Authorities in England: Preliminary Survey Results’, <https://uwe-repository.worktribe.com/output/9206381>.

106

UK Treasury, The Growth Plan 2022, September 2022, para. 3.34 (footnote omitted).

107

nppf, para. 151.

108

Ibid., para. 147. This is a very high threshold, higher even than a test of ‘exceptional circumstances’: R (Luton bc) v. Central Bedfordshire Council [2015] ewca Civ 537, [2015] 2 p&cr 19, para. 54; Compton Parish Council v. Guildford bc [2019] ewhc 3242 (Admin), [2020] jpl 661, para. 70.

109

nppf, para. 151.

110

[2022] ewhc 1221 (Admin), [2022] ptsr 1473, para. 122.

111

Ibid., para. 125, Holgate J. referring to R (Mott) v. Environment Agency [2016] ewca Civ 564, [2016] 1 wlr 4338.

112

Goesa Ltd, supra note 110, at para. 112.

113

Town and Country Planning (Development Management Procedure) (England) Order 2015, arts 5-6.

114

Ibid., art 2(1).

115

[2020] ewhc 3405 (Admin).

116

Ibid., para. 150.

117

Ibid., para. 237.

118

R (Village Concerns) v. Wealden DC [2022] ewhc 2039 (Admin), para. 44.

119

In the absence of the revocation of permission under s. 97 of the tpca. Such orders are very rare, for reasons including that the local planning authority can take into account the fact that it would have to pay compensation: tcpa s. 107; and Health and Safety Executive v. Wolverhampton cc [2012] uksc 34, [2012] 1 wlr 2264.

121

Although the Government did suggest that it wished to build on existing proposals ‘to make sure that protecting and improving the environment and tackling climate change are central considerations in planning’: ibid., 7.3 (cited in Rankl et al., supra note 8, 12).

123

Levelling-up and Regeneration Bill, Sixth Marshalled List of Amendments to be Moved in Committee of the Whole House, <https://bills.parliament.uk/publications/50358documents/3153>, amendment 271. Samuel Ruiz-Tagle had suggested the ‘special regard’ approach: Written Evidence on the Levelling Up and Regeneration Bill, para. 23, <https://bills.parliament.uk/publications/47951/documents/2318>.

124

East Northamptonshire DC v. Secretary of State for Communities and Local Government [2014] ewca Civ 137, [2015] 1 wlr 45.

125

‘Levelling-up and Regeneration Bill’, as amended in Committee, 23 May 2023, <https://publications.parliament.uk/pa/bills/lbill/58-03/142/5803142.pdf>.

126

In terms of existing legislation, s. 19(1A) of the pcpa requires local plans ‘to secure that the development and use of land in the local planning authority’s area contribute to the mitigation of, and adaptation to, climate change’.

127

Hansard, House of Lords, Vol. 828, 22 March 2023, Baroness Scott of Bybrook. The use of review of the nppf as a response to climate change was suggested in the Government’s 2021 Net Zero Strategy: Build Back Greener, ch. 4.iv, para. 19, and ch. 4.v, para. 31.

128

Rt Hon Chris Skidmore MP, Mission Zero: Independent Review of Net Zero, 190.

129

Ibid., para. 819 (cited in Rankl et al., supra note 8, 12).

130

Samuel Ruiz-Tagle, ‘Written Evidence Submitted to the House of Lords Built Environment Committee Inquiry into the Impact of Environmental Regulations on Development’, March 2023, para. 7(d).

131

Association for Public Sector Excellence, supra note 64, 3.3.

132

Ibid., 57-8. This is despite the fact that the UK High Court has held that the impact of development on a renewable-energy system is a consideration which must be taken into account due to the impact on climate change: R (McLennan) v. Medway Council [2019] ewhc 1738 (Admin), [2019] ptsr 2025, paras 37 and 45.

133

Although policies in the development plan can still be considered in the tilted balance: Gladman Developments Ltd v. Secretary of State for Housing, Communities and Local Government [2021] ewca Civ 104, [2021] ptsr 1450.

134

Press Release, ‘Communities put at heart of planning system and government strengthens Levelling Up and Regeneration Bill’, Department for Levelling Up, Housing and Communities and The Rt Hon Michael Gove MP, 5 December 2022, <www.gov.uk/government/news/communities-put-at-heart-of-planning-system-as-government-strengthens-levelling-up-and-regeneration-bill>.

135

nppf, Section 13.

136

Ibid., paras 199-202.

137

Ibid., para. 180(c).

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