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Key judgments and decisions
R (on the application of Sahota) v Herefordshire Council [2022] EWCA Civ 1640
The appellant had challenged the decision of a planning committee that no Habitats Regulation Assessment was required for the erection of a cattle shed near to the River Wye. The local authority ecologist had advised that the proposed development would have no effect on the River Wye Special Area of Conservation and consequently an HRA was not required. The planning committee had relied on his conclusion. The primary question for the Court was whether the committee had been materially misled. There was also a subsidiary point on the admissibility of “ex post facto” evidence, since HHJ Worster, sitting as a Judge of the High Court, had admitted a witness statement from the local authority ecologist, explaining his advice to the committee.
The judgment of the Court of Appeal offered a reminder of the wide discretion afforded to judges when deciding on the admissibility of “ex post facto” evidence in judicial review proceedings. The Court held that, provided that evidence which post-dates the decision under challenge does not directly contradict contemporaneous evidence and its admission would not be otherwise irrational on Wednesbury grounds, judges may exercise their discretion as to whether to admit it.
On the substantive issue of whether a Habitats Regulation Assessment was required under the Conservation of Habitats and Species Regulations 2017 reg.63, the Court unanimously dismissed the appeal, and restated the principle that whether a proposed project will adversely affect the integrity of a European protected site is a matter of planning judgement for the relevant authority, not a matter for the courts.
The Claimant brought a planning statutory review challenge against the decision of a panel of three inspectors to allow an appeal by Bristol Airport Ltd and grant permission for the expansion of the airport. There were six grounds of challenge, all but one of which related to the compatibility of the decision with local and national policies and national statutory obligations concerning the mitigation of climate change. In short, the Claimant submitted that the Secretary of State, through his inspectors, had erred in:
- his interpretation of relevant local plan policies;
- holding that the admitted increase in CO2 emissions was not a matter for local decision-making;
- finding that under the National Planning Policy Framework (NPPF) para.188 it was required to assume that the Secretary of State would comply with his legal duty to meet carbon budgets under the Climate Change Act 2008 and that that assumption was irrebuttable;
- discounting the impact on the local carbon budget;
- omitting to consider non-CO2 emissions from aviation in the Environmental Impact Assessment;
- misinterpreting the law regarding special areas of conservation.
Mr Justice Lane dismissed the challenge on all six grounds. Applying the principals set out in R. (on the application of Goesa Ltd) v Eastleigh BC [2022] EWHC 1221 (Admin), [2022] P.T.S.R. 1473, he held that the Inspectors’ interpretation of the relevant local plan policies was reasonable, that they were entitled to conclude that local and national policy indicated that aviation emissions should be dealt with at a national level, and that there was sufficient scientific uncertainty about the calculation of non-CO2 emissions that their exclusion from the EIA was neither irrational nor unusual.
The closing paragraph of the judgment draws attention to one of the central tensions at the heart of so much recent UK climate change litigation, namely the difficulty of particularising national obligations around emissions reduction:
“By way of postscript, I should make clear that nothing in this judgment is to be taken as contradicting what is said in its opening paragraph, regarding the significance of climate change and GHGs. As will by now be apparent, the main issue in this case is not whether emissions from any additional aircraft using Bristol Airport should be ignored. Plainly, they should not. Rather, it is about how and by whom those emissions should be addressed” [258].
R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council [2023] EWCA Civ 101
The Court of Appeal overturned the decision of the High Court on the rationality of a decision by a local planning authority to grant permission for a road bridge which was part of a wider residential development for which planning permission had not yet been sought.
When making their decision, the planning committee had taken into consideration the benefits that potential future residential development would bring when assessing the application for the road bridge, but had disregarded that residential development’s possible harms. The Court held that this approach was irrational. While the decision-maker and the judge in the court below were entitled to take into account the benefits of future schemes which would be contingent upon the road bridge, they could not rationally do so without considering any concomitant harms.
Further, the planning authority had erred in automatically treating the bridge as a standalone project and disregarding the potential impact of the wider development when deciding whether an Environmental Impact Assessment should be carried out. The Court affirmed a preliminary view taken by the Court of Appeal in R (Larkfleet) v South Kesteven District Council [2015] EWCA Civ 887, [2016] Env LR 4, that what counts as a single project is a matter of fact and degree for the decision maker, but held that in the present case, the Council never even considered the question of whether the bridge should be considered part of a wider project for EIA screening purposes, and its approach was therefore unlawful [83].
This appeal arose after a split decision in the High Court last year over the legality of the decision of the Secretary of State for International Trade and the Chancellor of the Exchequer to approve an investment by the Export Credits Guarantee Department (UKEF) in a liquefied natural gas (LNG) project in Mozambique. The Claimant ran two grounds in the High Court, both centred around the compatibility of the decision with the UK’s commitments under the Paris Agreement.
This judgment from the Court of Appeal is an important one in terms of the applicable standard of review in relation to the impact of unincorporated treaty obligations on government decision making. The Court held that it was neither unlawful not irrational for UKEF to have concluded that funding the LNG project was compatible with the UK’s obligations in relation to emissions reduction and climate change mitigation under the Paris Agreement. Questions on the interpretation of an unincorporated treaty were for the executive to determine. Provided that decision-makers adopted a “tenable” view on the meaning of unincorporated international law, it was not for domestic courts to determine whether their interpretation was correct.
Cumbria Coal Mine decision – On 7 December 2022, Secretary of State for Levelling-Up, Housing and Communities, Michael Gove, made the decision to approve a controversial proposal for a deep coalmine near Whitehaven in Cumbria. More that a year after the conclusion of the inquiry, Mr Gove accepted the Inspector’s recommendation that the proposal be approved, and the developer’s case that this would be the world’s first ‘net zero coal mine’. Environmental organisations Friends of the Earth and South Lakes Action on Climate Change have already lodged legal challenges against the decision.
First Environmental Targets published pursuant to the Environment Act – On 16 December 2022 DEFRA published the first environmental targets pursuant to the Environment Act 2021. The department had previously received criticism from the new environmental regulator the Office for Environmental Protection for missing the statutory deadline for the publication of the targets, which was 31 October 2022. Michael Feeney has summarised the impact of the targets in a post for the Environmental Law Blog.
Welsh Roads Review – After a review which began in June 2021, all but 15 out of 59 planned road-building schemes in Wales have been scaled back or shelved after failing to meet new climate change targets. The Welsh Government published its response to the Roads Review panel’s final report on 14 February, announcing that it agreed with the core principles underpinning the report and would seek to shift overall investment in transport towards more sustainable alternatives.
Key consultations
Levelling-up and Regeneration Bill: reforms to national planning policy (closes 2 March 2023) – The Department for Levelling-Up, Housing and Communities are consulting on a wide range of proposed changes to the National Planning Policy Framework, published in December 2022. Some relate directly to environmental issues, while others concern housing supply policies but will have potentially significant indirect environmental effects. Some of the key proposed changes include:
- Stronger Green Belt protections in terms of plan making.
- The removal of the requirement for LPAs to continuously demonstrate a five-year housing land supply, provided their strategic policies are less than five years old, and the removal of the requirement to demonstrate a ‘buffer’ above the five-year housing land supply.
- Changes to the tests of soundness for plan-making, to remove the ‘justified’ test and amend the ‘positively prepared’ test with the effect that LPAs will only be required to meet objectively assessed needs ‘so far as possible’.
- Confirmation that the standard methodology is an advisory starting point for establishing a housing requirement and that the methodology incorporates an uplift for the top 20 cities/urban centres. This uplift should be accommodated within urban centres, with a footnote prioritising brownfield sites.
- Confirmation that past oversupply may be deducted from future housing requirement figures in a new plan.
- Greater protections for neighbourhood plans against the operation of the tilted balance.
- Increased support for onshore wind turbines, subject to ‘community support’.
- The attribution of greater weight to energy efficiency improvements in existing buildings.
Improving boiler standards and efficiency (closes 21 March 2023) – The Department for Business, Energy, and Industrial Strategy are seeking views on a range of proposals to improve boiler standards and efficiency, including:
- proposals to improve boiler and heating system efficiency through improvements to minimum standards
- proposals to mandate that from 2026 all newly-installed gas boilers are ‘hydrogen-ready’
- the potential role of gas boiler-electric heat pump hybrids in heat decarbonisation in the 2020s and 2030s
Upcoming Events
What’s stopping construction from becoming more resource efficient?
Join Green Alliance as they present their research for the Circular Economy Task Force, which has identified how to put the UK’s building industry on a greener, more sustainable path. Come and hear the responses to these findings from a panel of experts from academia, the government and industry.
The panel will be followed by a Q&A session and a drinks reception.
Panellists
- Heather Plumpton, policy analyst, Green Alliance
- Danielle Densley Tingley, senior lecturer, University of Sheffield
- Rachel Hoolahan, architect and sustainability co-ordinator, Oorms
- Tessa Devreese, project manager, CIRCuIT programme, ReLondon
Register for the event here.
When: 18:00 – 20:00, 8 March, 2023
Where: Building Centre, 26 Store Street, London, WC1E 7BT
Junior UKELA seminar and drinks reception 13 March
If the brief summary of the proposed planning reforms above piqued your interest, why not join Junior UKEKA for a seminar on National Planning Policy Reform: Implications for the Environment. This hybrid event will be held in person in London and online.
Come along to hear from a fabulous range of speakers from No5, Landmark Chambers and Town Legal and find out what the proposed NPPF revisions mean for the environment – from offshore wind and carbon assessments in the climate change sphere, to new approaches to solving the biodiversity crisis.
Following the presentations, there will be an opportunity for refreshments and networking for those attending in person, with light nibbles, drinks, and a trip for those who are keen to a local bar. We are delighted to offer some “ethically sourced eco-friendly” prosecco and non-alcoholic sparkling wines from Sea Change.
The Seminar will also provide an opportunity for the presentation of the UKELA Mooting cup to this year’s winners.
Speakers:
- Howard Leithead, No5 Chambers
- Isabella Buono, Landmark Chambers
- Chaired by Juliet Munn, Town Legal
Find out more and register here.
When: 18:00 – 19:30 on 13/03/2023
Where: No 5 Chambers 5th Floor, 7 Savoy Ct London, WC2R 0EX
