What Next For Urban Communities? Planning For Climate Change

For the third in his series of?key takeaways from the Landmark Chambers Land Use Conference, our senior planner, Aaron Henecke discusses Planning for Climate Change…

“In one of two ‘breakout’ sessions, where attendees could participate in in-depth discussions, the headline topic was ‘Planning for Climate Change’. Chaired by David Forsdick KC and Andrew Byass, this examined how the courts, councils and construction industry are tackling climate change.

“With regards to the courts, a “hands-off” approach has generally been taken when it comes to challenges brought against climate-related planning policies and decisions, both at National and Local levels. Perhaps rightfully so, the courts have avoided involving themselves in matters of political and economic judgment, and have set a high bar for claimants for judicial review to demonstrate?“that a decision was irrational, absent bad faith or manifest absurdity”?(Sullivan J in?R (Wandsworth Borough Council) v SST?[2006] 1 EGLR 91).

“However, in recent years claimants have begun challenging planning decisions on the basis that climate change considerations were “obviously material” to the decision-making process. Examples of considerations which claimants have sought to hold decision-makers accountable for have included the Paris Agreement, Net Zero targets and carbon budgets under the Climate Change Act 2008. However, the weight such considerations can be given in the planning balance varies depending on whether specific statutes say regard?must?be had (expressly or impliedly),?may?be had or?must not?be had.

“Of course, even then things are not always so clear and often the weight attributed to climate change considerations ends up being a matter of judgment for the decision-maker. Indeed, the Court of Appeal’s decision in?Finch v Surrey County Council?from February this year confirmed this point, whilst also leaving the door open for those seeking to challenge the ‘downstream’ environmental and climate impacts of developments. Could one conceivably challenge a permission for a car manufacturer on the basis that the Council failed to consider the carbon emissions associated with the long-term use of the vehicles it produced?

“At a local level, over 300 Councils have now issued Climate Emergency Declarations (CEDs) but what does this mean for planning? The prevailing thought has been that CEDs are little more than executive plans or strategies with no bite; but as the climate crisis becomes more acute and CEDs become more detailed, we may begin to see planning officers refuse applications which fail to consider the Council’s CED Plan.

“Planning policies are equally responding in kind, with the London Plan (2021) leading the way on climate change policy. We are now seeing Local Plans adopted across the UK with policies related to minimising greenhouse gas emissions and achieving net zero carbon, and with an emphasis on retrofitting. As a result, validation requirements for Whole Life-Cycle Carbon Assessments and Circular Economy Statements are now commonplace in London. This is in addition to those policies related to green infrastructure, sustainable transport, electric vehicle charging, overheating and renewable energy requirements which have been around for a number of years.

“Altogether, this means architects, developers and contractors must be thinking about how they can address climate impacts – and the increasingly difficult targets associated with them – at the start of the development and design process. If you would like to discuss how climate change considerations might impact your development, contact me on?[email protected].”