Planning Law and Climate Change

Contents

    You are viewing part of the Law and Climate Atlas


    The United Kingdom’s planning systems, which govern the use and development of land across the country, are closely linked to climate change. It is important to note that planning is a devolved matter in the UK, i.e. England, Wales, Scotland, and Northern Ireland have different planning laws and systems, hence this consideration focuses mainly on English planning law. Planning law requires all types of operations or works falling within the broad definition of ‘development’ to obtain planning permission.[1] Buildings and land use change are a large source of emissions, and decarbonising these sectors has become a key policy ambition in the UK. Developing the industries and technologies to drive net zero, including renewable energy infrastructure, also requires planning permission. Legislation in the UK now requires consideration of climate change in multiple parts of the planning system, including in creating local planning policies and National Policy Statements. Climate change may also be a consideration in individual planning decisions, but this is not required by legislation. Planning law cases have been brought on grounds related to climate change, though struggle to compel the government to take specific action, given the limited ability for courts to review substantive decisions.

    The government’s National Policy Planning Framework (NPPF) states that the planning system’s key purpose is to contribute to the achievement of sustainable development,[2] which includes tackling the climate crisis. Chapter 14 of the NPPF asserts that the planning system could lead to ‘radical reductions in greenhouse gas emissions,’ and the framework further states that plans should be proactive in mitigating and adapting to climate change in accordance with the Climate Change Act 2008.

    Of course, sustainable development also includes creating healthy economic and social conditions. Though these ambitions can be largely complementary to the net zero transition, there may be trade-offs. Other planning considerations, such as heritage requirements, may represent acute barriers to climate action in the planning system. Decision makers at multiple levels of government may balance these factors – both when setting national, regional and local plans, and when deciding on individual planning decisions.

    Local Plan Policies

    Section 19(1A) of the Planning and Compulsory Purchase Act 2004 requires development plans to contain policies designed to ensure that the use of land in the local planning authority’s area contributes to mitigating and adapting to climate change. There must be a robust assessment of the potential for local policy to achieve emissions reductions over the plan period. It must also include a local target in accordance with that potential and an assessment of proposed policies’ consistency with that target; along with a monitoring framework to track the performance of policies. Although there is no statutory requirement to consider net zero targets in local plans, there are examples of plans that do consider such targets, including Reading Local Plan, which sets out a number of measures that take into account the effects of climate change and how the UK’s net zero target may be realized more locally. The Levelling up and Regeneration Act 2023 implemented similar obligations for spatial development strategies, neighbourhood development plans, minerals and waste plans, and supplementary plans. However, due to practical and administrative difficulties, the Climate Change Committee has suggested that most local plans do not adequately address climate change.

    National Planning Policy

    On a national scale, major developments are regulated by the Planning Act 2008. Part 2 of the Planning Act 2008 contains the procedure for the enactment of national policy statements (NPS), which set out policy frameworks regulating the assessment of applications for development consent orders (DCOs) to develop nationally significant infrastructure projects (NSIPs). Section 5(8) of the Planning Act 2008 requires that “Government policy relating to the mitigation of, and adaptation to, climate change” be considered in the NPS. Section 10(2) requires that the Secretary of State when exercising functions under sections 5 and 6 of the Planning Act 2008 “do so with the objective of contributing to the achievement of sustainable development.” Section 10(3) provides that for the purposes of subsection (2), the Secretary of State must (in particular) have regard to the desirability of – (a) mitigating, and adapting to, climate change…”. These provisions have been tested in court.

    NSPs were an important factor in R (on the application of Friends of the Earth Ltd and others) (Respondents) v Heathrow Airport Ltd (Appellant),[3] which concerned the expansion of Heathrow airport. Given the greenhouse gas emissions caused by aviation, claimants questioned whether the government had properly considered the environmental impact of a new runway. The legal argument hinged on multiple grounds, one key question was whether the Secretary of State had accounted for ‘government policy’ relating to climate change as described in Section 5(8) of the Planning Act. The court held that this phrase should be construed narrowly, meaning that Paris Agreement targets were not ‘government policy’ under the Act. Obligations under the Climate Change Act 2008, however, were deemed to be government policy. In giving reasons for their NSPs, the government must therefore explain how its decision aligns with the Climate Change Act but not with the Paris Agreement itself. Although the Court of Appeals held in favour of the claimants, the Supreme Court ultimately determined that the Secretary of State had considered sustainable development and did not need to consider post-2050 emissions, reversing the decision.

    The Heathrow case demonstrates decision makers’ discretion when deciding how to address the climate crisis through NSIPs. This aligns with other cases explored in the administrative law section of this resource that show that accounting for climate change is now an important obligation in many public decisions, but that there is limited scope to substantively review these decisions. Given climate change has impacted national planning systems through the Climate Change Act, amendments to this Act or any new overarching legislation will further implicate decisions related to NSIPs.

    In addition, the Levelling-up and Regeneration Act 2023, which received royal assent in October 2023, also contains important provisions regarding climate change. Specifically, section 94 of the 2023 Act introduces a new section 38ZA in the Planning and Compulsory Purchase Act 2004, which gives the Secretary of State power to designate ‘national development management policies’ (NDMPs). Relatedly, the same provision creates a duty requiring the Secretary of State to consider climate change mitigation and adaptation when preparing and modifying the NDMPs. Although these provisions are not yet in force,[4] the important point is that the new NDMPs will have to be taken into account in individual planning decisions, as explained below.

    Decision-making

    As most planning decisions are taken at a local level, local authorities play an important role in addressing climate change through the planning system. However, unlike obligations relevant to plan-making, legislation does not require that individual decision makers consider climate change. A number of cases have considered whether climate change is a material consideration to planning decisions. R (McLennan) v Medway Council[5] concerned the rejection of planning permission because of the effect an extension would have on the light reaching a neighbour’s solar panels. The court considered that the mitigation of climate change is a legitimate planning consideration. Despite this decision, there is still a lack of clarity regarding whether climate change is a necessarily relevant material consideration, in which case decision makers must consider it in relevant cases, or a potentially relevant material consideration, in which case decision makers would not err by considering its impacts. In cases concerning the refusal to grant planning permission for a coal mine[6] and a power station,[7] courts have acknowledged the significance of climate change impacts and appear to indicate that they may be necessarily material considerations. Given these trends, the scope to argue that climate change is not a necessarily material consideration may now be limited.[8] 

    Relatedly, as explained above, the Levelling-up and Regeneration Act 2023 imposes an obligation on the Secretary of State to consider climate change mitigation and adaptation when preparing and modifying NDMPs. This will affect the way the planning system tackles climate change because these new NDMPs will have to be considered in individual decision-making. Section 93 of the 2023 Act introduces a new section 38(5B) in the Planning and Compulsory Purchase Act 2004, establishing that planning decisions must be made in accordance with the development plan and any NDMPs taken together, unless material considerations strongly indicate otherwise.

    Given administrative difficulties in preparing local plans outlined above, individual planning decision makers play an important role in addressing climate change through planning. One proposed way of ensuring this is to legislate that decision makers must consider climate change, which is not without precedent given the law’s treatment of factors including heritage. Rising house prices have fuelled support for broader planning system reform, including calls to significantly increase the planning system’s efficiency. These reforms may have co-benefits for climate policy by facilitating quicker deployment of sustainable infrastructure, but may also have trade-offs if they more easily allow energy-inefficient or emissive developments.

    The UK’s built environment is a significant source of greenhouse gas emissions. Although broader measures such as decarbonising electricity supply have helped reduce emissions from buildings, emissions reductions will need to accelerate to meet the UK’s net zero goals. The planning system has an important role to play in ensuring that the UK’s land and buildings are in line with climate objectives. Systemic changes outlined above can embed climate considerations within the planning system across the board and accelerate many specific actions required to combat climate change, some outlined below.

    New buildings

    The net zero transition will involve both retrofitting existing buildings to minimise their impact on the climate, and also ensuring that new builds are low carbon. To meet the UK government’s goal of decarbonising buildings by 47-62% by 2035, new buildings in the UK will need to be built to a different standard than those built in the past. The government has aimed to address this by amending its Building Regulations. These amendments require that new homes produce 30% fewer greenhouse gas emissions, with some local authorities having crafted their own targets and guidelines that go beyond national regulations. More broadly, the fact that climate change may be a relevant consideration in planning decisions may make it easier for climate-related developments, such as renewable energy infrastructure, to obtain planning permission.

    Energy Infrastructure

    Retrofitting existing buildings by improving their energy performance and reducing carbon emissions is a crucial infrastructure challenge for the UK. Various government decisions and pieces of legislation enable the planning system to help achieve this. The UK’s Clean Growth Strategy details objectives to have all domestic houses brought up to EPC Band C by 2035 and non-domestic buildings to achieve EPC Band B by 2030. Prime Minister, Rishi Sunak, announced the scrapping of plans for legislation on these objectives in September 2023, as well as the disbanding of the Energy Efficiency Taskforce, which was set up to help speed up home insulation and boiler upgrades. Currently, local authorities have the power to intervene to improve household carbon emissions of at most 10 percent of existing homes.  

    There are several pieces of legislation which local authorities could use to promote net zero-compliant homes, including the Home (Fitness for Human Habitation) Act 2018, and Decent Homes Standard 2000. However, barriers to these legislative instruments include the onus being on tenants to identify problems to the local authority and outdated data. The Home Energy Conservation Act 1995 requires local authorities in England to submit reports annually to the Secretary of State setting out the measures they have adopted to improve the energy efficiency of residential accommodation within their area, across all tenures. However, there are no obligations to take action and no feedback from central government. The Government has also funded retrofitting, for example through the Social Housing Decarbonisation Fund, Home Upgrade Grant, and Public Sector Decarbonisation Scheme.[9]

    Biodiversity

    The Environment Act 2021 introduced a 10% “biodiversity net gain” condition for grant of planning permission for 30 years with associated powers for new conservation covenants.[10] This will likely be realised through measures such as Sustainable Urban Drainage Systems and the creation of green infrastructure.[11] Other measures introduced by the Act, which enhance the ability of planning law to achieve net zero, include the creation of Local Nature Recovery Strategies. These are a system of spatial plans which will drive development towards habitat and biodiversity creation and away from valuable habitats. This could in turn help to achieve net zero given the links between the climate and biodiversity crises.

    Energy infrastructure

    Local planning authorities are the principal decision makers for the majority of planning decisions excluding the very large or very small. They therefore have the power to use their planning policy and powers to support and consent to renewable energy generation, and in doing so, assist in driving net zero.[12] This may involve balancing low carbon energy deployment against other objectives. For example, Cornwall Council’s Local Plan prioritises renewable energy over policies to protect landscape character and environment.

    The Energy White Paper, published in December 2020, recognises the role of local authorities in delivering low carbon buildings and heat networks by incorporating technology ambitions within their wider statutory framework on housing, waste and planning.  Local Planning authorities have several key powers under planning law which can assist in driving the net zero transition, by allowing LPAs to promote energy from renewable and low carbon sources.[13] These include the ability to set energy standards for developments[14] and prepare local development plans to support decarbonization.[15] There is also evidence of local councils utilising powers under the Town and Country Planning Act[16] to permit development on district heating schemes, as evidenced in the Local Development Order for Leeds District Heating Network, which looks to maximise CO2 emissions reduction opportunities through low carbon heat networking.[17]  


    [1] Town and Country Planning Act 1990, Section 55.

    [2] See NPPF 2021, paragraph 7.

    [3] [2020] UKSC 52.

    [4] These provisions will come into force on such day as the Secretary of State may by regulations appoint, see Levelling-up and Regeneration Act 2023, s.255(3).

    [5] [2019] EWHC 1738

    [6] HJ Banks & Company Ltd v Secretary of State for Housing, Communities and Local Government [2018] EWHC 3141 (Admin).

    [7] R (ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy and Drax Power Ltd. [2021] EWCA Civ 43.

    [8] Landmark chambers, ‘Climate Change as a Material Consideration’ https://www.landmarkchambers.co.uk/wp-content/uploads/2019/11/Climate-change-as-a-ground-of-challenge-in-planning-cases.pdf.

    [9] Department for Energy Security and Net Zero, £1.8 billion awarded to boost energy efficiency and cut emissions of homes and public buildings across England, 22 March 2023. https://www.gov.uk/government/news/18-billion-awarded-to-boost-energy-efficiency-and-cut-emissions-of-homes-and-public-buildings-across-england.

    [10] Michael Coxall and Kirsty Souter, ‘Environmental law and practice in the UK’ (November 2021) Practical Law available at < https://uk.practicallaw.thomsonreuters.com/6-503-1654?transitionType=Default&contextData=(sc.Default)> accessed 12 August 2022.

    [11] Cook  https://www.pbctoday.co.uk/news/planning-construction-news/sustainable-development-planning-legislation/107350/.

    [12] Powershift report.

    [13] Powershift report.

    [14] Planning and Energy Act 2008.

    [15] Planning and Compulsory Purchases Act 2004.

    [16] Town and Country Planning Act 1990.

    [17] Local Development Order (LDO 3) – Leeds District Heating Network.