Climate Change and Net Zero – The implications of the Heathrow judicial reviews on infrastructure and other development.

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Climate Change and Net Zero – The implications of the Heathrow judicial reviews on infrastructure and other development.

Published 12 March 2020

Heathrow Airport is the single largest source of CO2 emissions in the UK (currently accounting for 7% of total emissions). Homes – both new and existing – account for 20% of emissions.

On 27 February 2020, the Court of Appeal held that Airports National Policy Statement (“ANPS”) was unlawful and shall have no effect until the Secretary of State for Transport carries out a review under s.6-9 Planning Act, so as to take into account the Paris Agreement on climate change. This means that there is no policy support for expansion of capacity at Heathrow, or other airports in the south-east, such as Gatwick which is seeking to make the best use of their existing assets.

Whilst Heathrow Airport Limited and Arora have submitted applications to the Supreme Court for permission to appeal against the Court of Appeal’s judgment, it is significant that the Department for Transport is not doing so.

By way of background, the Paris Agreement’s central aim is to keep a global temperature rise this century well below 2c above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5c. Boris Johnson, as Foreign Secretary, ratified the Paris Agreement on behalf of the government in November 2016.

The Climate Change Act 2008, as amended in June 2019, stipulates that the UK must cut its carbon and greenhouse gas emissions by 100% by 2050 (“Net-Zero”). The Net- Zero target at the time the ANPS was designated in June 2018 was to reduce greenhouse gas emissions by 80%.

As of February 2020, 65% of the UK’s local authorities and 8 combined authorities/city regions have declared a climate emergency. Many have set 2030 as a target date for reducing carbon emissions to zero, 20 years ahead of the Government’s 2050 target.

In light of the above, the government, local authorities, members of the public, developers and funders are all grappling with what this actually means in practice.

Campaigners have already started proceedings against the government arguing that the Energy National Policy Statements are out of date and should reviewed in light of the Paris Agreement and Net-Zero target. This is in addition to the current judicial review of the Govt’s decision to grant consent for four new gas fired turbines at Drax and Chris Packham challenging the decision to proceed with HS2 on the same basis. It can only be a matter of time before the Networks NPS (which covers the need for road and rail infrastructure) is also challenged or schemes seeking consent are faced with objections and challenges.

Even where developers have a plan to deal with carbon it does not guarantee consent will be granted. For example, Bristol Airport’s proposals to expand was refused consent, against officers’ recommendations on environmental grounds despite having a plan to carbon neutral growth by 2025.

Greenhouse gasses are a material consideration in the planning process but there has some debate as to the weight that should be attached to this consideration particularly where there are other regulatory regimes dealing with emissions, or where they are of short or medium term significance. How greenhouse gasses are now assessed for a particular development along with cumulative impacts for is uncertain and potentially costly. Consideration will need to be given as to what should be assessed and where the line should be drawn for cumulative impacts.

Whilst there are local authority action plans on Net Zero and guidance on planning and climate change published by the RTPI and TCPA, the NPPF (published in February 2019) does not have specific polices relating to Net-Zero, the Paris Agreement or climate emergencies. In the absence of clear and up to date guidance at a national or local government level large scale development or small scale development with a significant carbon impacts is at risk of refusal and/or legal challenge.

Accordingly, for significant development such as garden villages, logistics operations and tall buildings or other new settlements we recommend that an assessment of the greenhouse gas emissions take place during the preparation of the planning application and a Net Zero plan is developed having regard to the local authority’s development plan, action plan and/or aspirations. It will then be possible to address the issue from a factual basis and reduce the risk of delay, uncertainty and challenge. Net Zero will also need to be considered in the context of sustainability, biodiversity net gain, food risk and air quality.

Whilst some developers may regard this approach as unnecessary, until it’s a requirement, the Net Zero target is not going away and will become an increasing important consideration for occupiers/users/funders in addition to local and national government. We have a strong track record in advising on Net Zero on wider range of development and can advise on strategies for navigating the consenting maze.


Christopher Stanwell

Christopher Stanwell

London - Walbrook

+44 (0)20 7894 6269

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