Planning matters

This is the second in Lichfields’ series of blogs examining the climate emergency in planning, following on from ‘Planning for climate change: Is London leading the way?’. The Committee on Climate Change’s (‘CCC’) report ‘Progress Report to Parliament’, published last month, identified investment in low-carbon and climate-resilient infrastructure to be a key measure that is vital to achieving the UK’s climate targets in the short and long term. But what is it? The OECD[1] states that climate resilient infrastructure is planned, designed, built and operated in a way that anticipates, prepares for and adapts to changing climate conditions. Why do we need to climate-proof infrastructure? The World Economic Forum[2] has claimed that investment is vital to future proofing our communities for the decades ahead. By investing heavily in climate resilient infrastructure right now and adapting our transport networks, housing and businesses, we will be better set to counteract flooding, heatwaves, drought, cyclones, wildfires, and other extreme climate events. Infrastructure networks are already affected by the physical impacts of climate variability and change. For example, OECD modelling of the potential impacts of a major flood in Paris found that 30% to 55% of the direct flood damages would be suffered by the infrastructure sector, while 35% to 85% of business losses were caused by disruption to the transportation and electricity supply and not by the flood itself. This is particularly relatable to the logistics sector, which is arguably one of the most susceptible industries to the increasingly tangible effects of climate change. Extreme weather events, such as winter storms and floods, can disrupt and influence supply chains globally – particularly in the UK where a downturn in the weather conditions can wreak havoc on transport systems. However, this industry is also a major contributor to climate change. Transport is embedded in the door-to-door supply chains, and in the CCC’s Progress to Parliament Report, it revealed that surface transport is now the highest emitting sector in the UK. However, these key infrastructure networks will also play an essential role in building resilience to climate impacts in the future. What infrastructure do we need to invest in? Examples of climate resilient infrastructure that are key to reaching the UK’s climate change goals are explored below. 1.  Carbon capture and storage (‘CCS’) infrastructure: CCS encompasses technologies for capturing carbon dioxide that would otherwise be emitted to the atmosphere, transporting and storing it deep underground in geological formations where it will be permanently contained. This storage requires pipelines to transport the CO2 to the storage destinations. The CCC estimates that up to 175 million tonnes of CO2 – around half the UK’s 2019 emissions – will need to be captured annually by 2050 to reach the goal of net zero greenhouse gas emissions.  We are already seeing progress in this industry globally, for instance, energy giants Equinor, Shell and Total have signed off on a plan to build what would be the world’s first carbon capture and storage network in Norway. The project will be developed in stages, with phase one developing the infrastructure to transport, inject and store up to 1.5 million tonnes of CO2per year in the seafloor thousands of metres (2,700 metres to be precise) below sea level. However, this infrastructure is currently very expensive and cost reductions are necessary to be able to deploy CCS cost effectively in the UK[3]. 2.  Low-carbon hydrogen: As an alternative to fossil fuels, hydrogen production has the potential to contribute to decarbonisation in the UK. Hydrogen is a low-zero carbon, energy dense fuel that can be stored and transported over long distances. Climate experts therefore agree it is likely to be crucial for decarbonising the UK’s heavy road transport and manufacturing industries, which can’t get enough power from electricity alone. It could also prove crucial for cutting carbon emissions from home heating, by replacing natural gas in the gas grid. Currently the vast majority of hydrogen is produced using natural gas, which can only be made low-carbon by bolting on CO2 capture technology. Hydrogen can also be produced using renewable electricity via a process known as electrolysis. Earlier this year, the Government announced a low carbon funding package, where £70 million will fund two of Europe’s first-ever large scale, low carbon hydrogen production plants - the first on the banks of the Mersey, the second planned for near Aberdeen. 3.  Zero Carbon Freight: As discussed above, surface transport is now the highest emitter in the UK, and the logistics sector contributes significantly to this. The CCC makes recommendations within its recent report for the Government to implement a strategy to transition to zero-carbon freight (potentially through use of hydrogen), including stronger purchase incentives, schemes to reduce HGV and van use in urban areas (e.g. e-cargo bikes and use of urban consolidation centres), infrastructure plans and clean air zones. London is leading the way in the journey to zero carbon transport – with Sadiq Khan announcing on Friday plans for London’s entire tube network to be powered by renewable electricity by 2030. How will climate resilient infrastructure be achieved? As would be expected, this area of addressing the climate emergency is mostly dependent on coordination at a Government level. The CCC places a lot of emphasis on the measures and investment plans that will be implemented through the National Infrastructure Strategy that is due to be published later this year – following a delay announced in March 2020. It is suggested that all new infrastructure investments should assess and plan for the impacts of climate change. The private sector also has a role in supporting this action, through financing research and initiatives. Lastly, planning is a key driver in the delivery of climate resilient infrastructure. Well-aligned national and local planning frameworks are vital to guiding progress in support of climate resilient infrastructure. This is already being recognised, for example, this week, Defra published its ‘Flood and coastal erosion risk management policy statement’, setting out the Government’s policy on flood and coastal erosion risk management in the face of climate change. This document states that the government will "ensure that planning policy is being appropriately applied and effectively implemented on a consistent basis across the country”. Lichfields is well suited to help respond to the climate change emergency in planning, and across a range of specialities – our next blog in the series looks at how aviation is responding to the climate emergency. Contact us for further information. [1] Policy perspectives: Climate resilient infrastructure[2] Why it's time to invest in climate resilient infrastructure[3] UK carbon capture and storage government funding and support  

The Court of Appeal has quashed a planning permission granted by Shropshire Council in 2017 for an intensive poultry farming facility near Bridgnorth in Shropshire. The fundamental question of the appeal was whether the LPA, when considering the application, failed to properly consider the likely effects of odour and dust arising from manure disposal. Reviewing this judgement has highlighted the consequences of approving an application which relies on an inadequate environmental statement (ES); and has also clarified the relationship of environmental permits to Environmental Impact Assessment (EIA) planning applications. Context of the case On 1 September 2017, Shropshire Council granted permission for the erection of four poultry buildings at Footbridge Farm. The owner, also the applicant, intends to use the buildings for intensive rearing of poultry. The facility would operate on a 48-day cycle, rearing 210,000 chicks for 38 days and then cleaning the buildings to prepare for the next cycle. Roughly 1,575,000 broiler chickens would be reared over a year. This would produce approximately 2,322 tonnes of manure, which would be disposed of on the applicant’s fields, and any surplus would be spread on third party owned fields near to residential areas. The appellant is a local resident, Ms Squire, who lives about 300 metres from land on which manure might be spread. On granting planning permission, the Council concluded that the technical assessments submitted within the ES ‘are generally satisfactory’, and that ‘adverse impacts on local amenity can be satisfactorily safeguarded’. Additionally, the environmental permit issued and regulated by the Environment Agency (EA) would provide another level of control sufficient to address dust and odour issues. Following the High Court’s dismissal of the appellant’s claim for Judicial Review of the Council’s decision, Ms Squire appealed against the Judge’s decision on two grounds: The Judge was wrong to conclude that the environmental permit issued under Reg.13 of the Environmental Permitting Regulations would control the management of manure outside the site to which the permit is related; and The Judge was wrong to consider the development’s likely environmental effects had been assessed adequately and lawfully in accordance with the EIA legislation. Broiler chickens - source: Wikimedia Commons Summary of the judgement The Court of Appeal first addressed the interpretation and scope of the Environmental Permit, which would be a requirement for an operation of this scale. It held that there was no misunderstanding of the permit’s control, which clearly included removal of manure from the site and the EA would enforce this. The officers had simply misunderstood the role of a future ‘manure management plan’ (MMP) that was referenced in the EAs consultation advice letter as though it were an assessment to reduce the risk of pollution from manure disposal. MMPs are a requirement under the Environmental Permit Regulations (not under the site-specific permit) and must also comply with the statutory Code of Good Agricultural Practice. However, the EA had made clear in its letter that the MMP would only relate to the applicant’s land and would not control any issues arising from activities outside of the permit boundary (drawn around the chicken sheds only). More importantly, the MMP specifically relates to risks of polluting surface or groundwater – not odour and dust. Therefore, it cannot be assumed that in enforcing the site’s permit, the EA will provide additional control contributing to minimising effects of odour and dust outside the permit area. Manure spreading at a Welsh farm - source: Wikimedia Commons In relation to the soundness of the EIA, the Court considered that impacts on neighbouring properties, generated by odour and dust from manure disposal activities were indirect impacts of the proposed development therefore must be assessed through the EIA. However, the ES did not identify the third-party land on which the 1,500 tonnes of manure was going to be spread each year, nor did it attempt to provide a meaningful assessment of the likely polluting effects the manure spreading – either on the applicant’s land or any other land. The Court held that the requirement of an MMP to be produced in the future, was not a substitute for the lack of assessment in the ES, and therefore, the ES was deficient and not compliant with the EIA Regulations. The appeal was allowed, on both grounds. Lessons learned from this case Although the case’s poultry context may not be relatable to many, this decision is a reminder of the importance of ensuring that all EIAs clearly identify and fully assess all impacts of a development - direct and indirect. As the PPG states, mitigation measures are designed to limit or remove any effects of a development, consequently an ES cannot rely on mitigation to mitigate an effect that hasn’t been identified within the assessment. Furthermore, care must be taken to understand the scope, role and effect of any regulatory process, such as environmental permitting, that is considered within an ES. For instance, considering whether a permit can be relied upon as adequate mitigation, and whether mitigation is required beyond the regulatory boundary of such a permit. The appeal could perhaps also result in more thorough scrutinisation of generalised commitments which have become commonplace within ESs for similar developments, such as compliance with the Code of Good Agricultural Practice, or the fact that the process of manure spreading, as intended in this application, is common practice in farming of this intensity. Overall, we now know not to get over EGGcited when chickens are involved, as you should never hurry EIAs concerning slurry!