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Environment Act gains Royal Assent

Environment Act gains Royal Assent

Jennie Baker 11 Nov 2021
The Environment Act received Royal Assent on 9 November 2021, albeit very few provisions are yet in force. The provisions of particular interest to planning are as follows: Environmental targets for air quality, water, biodiversity, resource efficiency and waste reduction and soil health and quality. A 'policy statement on environmental principles' explaining how the environmental principles should be interpreted and proportionately applied by Ministers of the Crown (in England) when making policy (except policies for defence, national security and taxation), to which those Ministers must have regard. The establishment of the Office for Environmental Protection, which describes its duty as to "protect and improve the environment by holding government and public authorities to account". Provisions relating to water and waste, which will have particular impacts on those sectors and consequential impacts on their planning. Biodiversity net gain becoming (in due course) a condition of planning permission and a requirement for nationally significant infrastructure projects. And related to this, a system of purchasing biodiversity credits in order that developments can meet the biodiversity net gain objective. Local nature recovery strategies covering the whole of England, with boundaries to be determined by the Environment Secretary. Species conservation strategies and protected site strategies. A power for the Secretary of State for the Environment, Food and Rural Affairs to amend general duties within the Habitats Regulations. The environmental targets will be set by regulations, which will specify the standard to be achieved and the date by which it is to be achieved. DEFRA has consulted on the draft policy statement on environmental principles “which sets out how those five internationally recognised environmental principles should be interpreted and proportionately applied” and a response is now overdue. Office for Environmental Protection In England, sections 22 to 43 and Schedule 1 of the Act make provisions in relation to the Office for Environmental Protection (OEP). Sections 22-24 and Schedule 1, which relate to the establishment of the OEP, came into force on 17 November 2021. However, the OEP has been operating on an interim basis for some time and will continue to do so until its full legal powers are obtained by Regulations, in due course. The OEP anticipates being fully operational from January 2022.  With regard to the OEP's enforcement function and planning, Lord Goldsmith explained to the Lords during a debate on Commons Reasons and Amendments to the then Bill: “The OEP may pursue cases for enforcement action only if it considers that the conduct in question would constitute a “serious” failure to comply with environmental law. Clause 23(7) states that the OEP must have regard, among other things, “to the particular importance of prioritising cases that it considers have or may have national implications”. While the OEP will have discretion to interpret these criteria, setting out its approach in its enforcement policy, it follows in the Government’s view that cases which only have a local concern—for example, the majority of individual planning and environmental permitting decisions—are unlikely to have sufficiently broad or widespread impact to be prioritised. The OEP could pursue such cases if it considers them indicative of a broader or more systemic issue or failure, or if especially serious harm has resulted, or may result, from the potential failure. The OEP, for example, could consider this in relation to the destruction of a nationally important population of a rare and protected species, but this should not be the norm”. Biodiversity net gain There has been much coverage of the requirement for 10% biodiversity net gain. This will be introduced when a standard condition in Schedule 14 of the Act (not yet in force) is inserted into the Town and Country Planning Act 1990, within what will be Schedule 7A. The standard condition says that all planning permissions, except those granted by Order, emergency Crown development or other types of development as defined in Regulations, may not be begun unless a biodiversity gain plan has been submitted to, and approved by, the planning authority. The planning authority must approve the biodiversity gain plan if, among other things, it is satisfied that the pre and post development biodiversity values are as stated and that the biodiversity net gain objective is met. Biodiversity value will be calculated by using a metric produced and published by the SoS, which may be revised. Schedule 7A will say that the biodiversity gain objective is met if the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least the relevant percentage. The relevant percentage is 10%, but this can be amended by Regulations. Schedule 15 of the Act (also not yet in force), will make amendments to the Planning Act 2008, to mandate for respective biodiversity net gain requirements for Nationally Significant Infrastructure Projects. In terms of timescales for the introduction of a legal requirement for biodiversity net gain, a written question from Conservative MP Bim Afolami asked about “the potential merits of a pilot scheme to consider the impact of biodiversity net gain in 2022 and 2023 before its full implementation in 2024”. The Environment Minister, Rebecca Pow MP replied with reference to current policies and discussions with the development sector saying: “Some aspects of the biodiversity net gain policy were tested, and evaluated, as part of the biodiversity offsetting pilots which took place from 2012 to 2014. We will shortly be consulting formally on more details of biodiversity net gain’s implementation and will consider which components of the approach might benefit from pre-commencement testing as part of this”. For an overview of biodiversity net gain in current national policy and in forthcoming legislation see Simon Ricketts' blog “Ecology By Numbers: Biodiversity Net Gain In The Environment Bill”. A useful emerging resource is the Planning Advisory Service's page on biodiversity net gain. Policy before law For biodiversity net gain and indeed other planning-related provisions that can be adopted into policy, we are likely to see local policies come forward in advance of national requirements. Where there are no local policies, local planning authorities may consider some emerging national policy and law as a material planning consideration, where the approach or direction of travel is clear. For example, short-lived additions to the Bill made via an amendment in the Lords included an enforcement power to control the felling of trees in England and a new requirement that the Government implements an enhanced protection standard for ancient woodland in England. These proposed provisions were rejected by the House of Commons, but only after the Environment Minister, Rebecca Pow MP, announced: “We will undertake a review of the national planning policy framework to ensure that it is being correctly implemented in the case of ancient and veteran trees and ancient woodland. Should the review conclude that implementation can be improved, we will look to strengthen the guidance to local authorities to ensure their understanding of the protections provided to ancient woodland. Secondly, I am pleased to announce that we will consult on strengthening the wording of the national planning policy framework to better ensure the strongest protection of ancient woodland, while recognising the complex delivery challenges for major infrastructure. Finally, we will amend the Town and Country Planning (Consultation) (England) Direction 2021 alongside these reforms to require local planning authorities to consult the Secretary of State for Levelling Up, Housing and Communities if they are minded to grant planning permission for developments affecting ancient woodland”. In the debate that followed, clarification was sought (by John Redwood MP) as to whether this amendment to policy would mean “[…] another HS2-type assault on ancient woodland would not be allowed, whereas the last one was?” The Environment Minister replied: “What it will mean is that, yes, there will be much more credence given to the value of ancient woodland. At the moment, ancient woodland does not necessarily win, because one can have the infrastructure, or whatever it is, if one can demonstrate that there are wholly exceptional reasons for getting rid of the ancient woodland. This approach will really strengthen the position: it is a really big commitment to ancient woodland, which is like our rainforest. We have to do something about it—and we are, which I hope will be welcomed”. It appears that the intention is that all or part of the proposed clause on an enhanced protection standard for ancient woodland will be incorporated into national policy. We may not know whether the buffer zones will be in the policy to be consulted on, until the consultation emerges. Local planning authorities with ancient woodland may respond in different ways, but some may consider the policy intent above to be considered a material planning consideration, from now on. Parallel publication: Net Zero Strategy With regard Net Zero, the Department for Business, Energy & Industrial Strategy published "Net Zero Strategy: Build Back Greener" (NZS), on 19 October. Recent Lichfields research "Time to panic? Planning and the climate emergency" discusses the need for the development sector to take a decisive and proactive approach to Net Zero. The NZS will need to be followed up with changes to national planning policy, which the Government says it will do. The extent to which policies derived from the Environment Act will be included in a revised NPPF and whether Net Zero objectives will truly embedded into policy remains to be seen. The NZS acknowledges the potential challenges in ensuring that policies are complimentary rather than contradictory: "Delivery of net zero policies and proposals will need to consider the UK’s other legally binding environmental commitments (for example, new legally binding targets stemming from the Environment Bill), and any trade-offs against these acknowledged and mitigated through careful planning policies and actions can be designed that deliver multiple outcomes in support of the UK’s net zero and 25 Year Environment Plan ambitions.For instance, the planting of broadleaf trees and restoration of peatland or grassland can deliver carbon sequestration as well as environmental benefits including improved biodiversity and water quality, if done in the right way. Conversely, certain interventions such as planting of maize for biomass or food may risk soil health and water quality. It will be important to assess the wider impacts of proposed net zero actions and seek synergies with environmental ambitions wherever possible, so that the twin challenges of biodiversity loss and climate change are tackled in an efficient way". The Environment Act 2021 The Environment Act 2021 (Commencement No. 1) Regulations 2021

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Planning for climate change: Is London STILL leading the way?
Last year Lichfields published a series of blogs examining various climate change issues. The first in this series explored London’s response to date on the climate change crisis and reviewed the recent findings of the CCC’s 2020 report to parliament. Almost one year on, climate change continues to be at the forefront of both public and government consciousness. This blog provides an update on London’s progress in achieving its Net Zero Target, in the context of a newly adopted London Plan and recovery from the Covid-19 pandemic. Before the pandemic, the need to tackle the climate crisis was a policy priority both in London and across the UK[1]. However, the economic and social context for climate action has changed in importance in the past year and it is recognised that pursuit of low-carbon can support economic recovery. From this, policy proposals and funding packages are now being framed as a means to create jobs, promote a “green recovery” from Covid-19 and help the UK meet its revised 5-yearly carbon budgets and achieve its net-zero emissions target. Over the past few months a number of key events have taken place including the Leaders Summit on Climate (22nd and 23rd April) and the 2021 G7 Summit (11th – 13th June) paving the way for vital UN climate talks at the COP26 summit, hosted by the UK in November 2021. Hosting these talks is a major responsibility and gives the UK more influence on the climate commitments of other countries. The power of our example is crucial and the Prime Minister has announced radical new climate change commitments that will set the UK on course to cut carbon emissions by 78% by 2035 and will require more electric cars, low-carbon heating and renewable electricity. The need to make progress was given emphasis by the recent publication of the IPCC Report[2]. The government is under pressure to back up this ambitious new target with investment and robust policies and to put the foundations in place for reaching Net Zero. It is doing so in the face of some domestic political challenge over the costs this might incur on poorer households and for managing public spending[3], and criticisms over the geo-political management of the issue in the run up to COP26[4]. Latest policy response In the last year, several key policy documents have emerged at the National level, including the Planning for the Future White Paper (August 2020) and the Ten Point Plan for a Green Industrial Revolution (November 2020). The latter sets out the Prime Minister’s ambitious plan for a ‘green industrial revolution’ and covers clean energy, transport, nature and innovative technologies, with the headline-grabbing announcement of a ban on new petrol and diesel cars from 2030. Whilst many welcomed the plan’s ambition and the Government’s recognition that tangible action is required to meet society’s Net Zero aspirations, the RTPI stressed that “only by investing in local authority planning teams would a localised framework be established to ensure investment is properly integrated into the built and natural environment”. This was recognised to some extent in the White Paper, which cited planning as having a central role in addressing climate change. However, its proposals did not require local plans to pursue carbon emission reductions in line with the Net Zero target under the Climate Change Act, nor did it address how national and local climate targets will inform the new local plans and planning decisions under the new system. In an effort to attempt to strengthen climate change considerations in local plans, the revised NPPF (2021) includes a change to the wording of the “presumption in favour of sustainable development” for plan making, and now requires plans to “mitigate climate change and adapt to its effects” (para. 11a). Whilst this might beef up the NPPF’s climate change policies, key conclusions from our previous blog were that the Net Zero Target is only achievable if it is embedded and integrated across all levels of policy and investment. There is still some way to go in ensuring that national policy is supporting and enabling local authorities to align their local development plans with national objectives. Recent policy proposals have demonstrated a centralisation of planning policy consideration on topics that affect the climate, which disempowers the ability to consider those issues at the local level. What’s going on in London? The pandemic has impacted London significantly, with the widespread (if temporary) emptying of offices prompting new commuting behaviours and changes to lifestyle. Headlines last year showed a dramatic fall in carbon emissions during lockdown – demonstrating that it is possible to reduce emissions in a short period of time. However, these reductions are largely linked with the slowing of the economy. In response to the pandemic, The GLA has produced a London Recovery Programme[5] which intends to ‘tackle the climate and ecological emergencies and improve air quality by doubling the size of London’s green economy by 2030 - accelerating job creation for all.’ Sadiq Khan has also spoken about the possibility of a Green New Deal for the city that will ‘increase access to green spaces, support active travel and zero emission fleets to eradicate air pollution, help adapt to climate change and deliver better health.’ These strategies are supported by the London Plan which was published on 2 March 2021.[6] Key headlines from the plan, relating to climate change, include the redefinition of zero carbon, requiring new buildings to meet at least 35% reduction of carbon on site with at least 10% (housing) and 15% (non-housing) from energy efficiency (paras. 9.2.5-9.2.7). This demonstrates how reducing energy requirements could be achieved through good design. The plan also introduces the regulation of embodied carbon levels in proposed buildings, requiring all major developments to be Net Zero Carbon by 2030. Its welcome policies mean all new developments must “calculate whole lifecycle carbon emissions through a nationally recognised assessment and demonstrate actions taken to reduce them” (Policy SI 2, Part F). In the context of the now adopted London Plan, the response of Boroughs (in terms of climate emergency declarations and the target dates for reaching net zero emissions) has varied (as shown below). London headline figures 29/33 (88%) London Boroughs have declared a climate emergency. 24/29 (82% of those that have declared) have set targets to become carbon neutral earlier than the UK/London Plan target. Only 2 boroughs have allowed themselves until 2050 to reach carbon neutral. The boroughs that haven’t declared a climate emergency are all outer London boroughs. Whilst most London Boroughs have now made significant commitments to net-zero carbon, it is not yet clear how the reduction targets are to be implemented. We are beginning to see London Boroughs advancing beyond these first steps of recognising the climate crisis by developing strategies to reduce emissions and create on the ground change. LB Greenwich has consulted on its Greenwich Carbon Neutral Plan (2020) which includes the principle of reducing emissions from new buildings, by committing to “strengthen the Local Plan by 2021 to deliver zero carbon development – through adopting a tiered carbon off-set price via SPD; increasing planning officer capacity to negotiate higher sustainable standards in new development; and evaluating options for a Local Plan review”. Similarly, LB Merton’s Climate Strategy and Action Plan (2020) links to the existing Strategic Objectives and Core Strategy planning policies of the Local Plan which features climate and carbon policy requirements, but also identifies the need to draft Local Plan policies in line with the London Plan: including net-zero carbon development for new buildings and reducing embodied carbon. Whilst London Boroughs do appear to be progressing their Climate Strategies/policies, there is still a long way to go and it will need a continuing commitment and development of expertise at city and borough level. The presence of the Mayor of London as a regional planning authority as part of a compact-city approach to strategic planning means that London, unlike anywhere else in the UK, has its own regional plan and the opportunity to develop robust planning policies, setting strong standards to inform and guide the policy approaches of the 33 London Boroughs. But is it the case that London is leading the way, or are local authorities elsewhere in the UK making significant progress without the backing of an additional tier of governance? Our forthcoming research on the UK-wide response of local authorities to climate change will explore place-based responses to the Climate Emergency across the UK. [1] As evidenced by the introduction of the Committee on Climate Change (‘CCC’) (2008), the UK’s commitment to the UN Paris Agreement and the legislation of a Net Zero emissions target of 2050[2] The report and its background appendices is available here: https://www.ipcc.ch/report/sixth-assessment-report-working-group-i/[3] The Office for Budget Responsibility estimated the total cost to the UK of reaching net zero by 2050 could reach £1.4trillion. The National Infrastructure Commission says the poorest tenth of households will pay an extra £80 a year in bills by 2050, the richest tenth an extra £400. HM Treasury is reviewing the costs of the overall programme.[4] https://www.politico.eu/article/boris-johnson-climate-problem-conservative-government-cop26/[5] https://www.london.gov.uk/sites/default/files/recovery_programme_overview.pdf[6] https://www.london.gov.uk/sites/default/files/the_london_plan_2021.pdfImage credit: @Aquobex via Twitter  

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