Climate change as a material consideration for refusing planning permission

An interesting case for those with an eye to the relationship between climate change and planning is currently progressing through the High Court.

Climate change has been rumbling around the peripheries of planning decisions as a ‘material consideration’ for some time. Anyone familiar with renewable energy development (and in particular wind turbines) will be aware of the huge amount of climate-related policy submitted with these applications as a reason for why planning permission should be granted. However, this case is of interest as one of the first occasions where climate change is argued as a reason for refusing planning permission.

ClientEarth (a charity that specialises in legal activism in the field of climate change and the environment) has launched a judicial review challenge in the High Court against the Secretary of State’s decision to approve an application for Drax to install four new gas turbines at its plant in Selby, North Yorkshire.

In the original planning application Drax stated that its proposal for four combined cycle gas turbines was justified as a replacement for its existing two coal-fired units, ahead of the government’s proposed coal phase-out in 2025. However, at the subsequent hearing, ClientEarth warned that the combination of the project’s scale, emissions intensity and operating life represented a significant threat to the UK’s carbon targets. According to the ClientEarth press release (30 January 2020), once fully operational, based on the allocation to the power sector envisaged in the government’s Clean Growth Strategy (16 million tonnes (Mt) of carbon dioxide per year in 2028) the proposed development’s emissions of up to 12 Mt of CO2 per year would represent approximately three-quarters of the emissions for the entire UK power sector. As such, it was argued that the approval would undermine the UK’s legally binding target (under the Climate Change Act 2008) to achieve net zero carbon by 2050. The group also argued that the new gas turbines are inconsistent with the government’s Clean Growth Strategy 2017.

It is significant to note that the Planning Inspectorate was supportive of ClientEarth’s position. In its recommendation to the Secretary of State, the Planning Inspectorate found that:

[T]he operating life of the Proposed Development presents a significant risk of high carbon lock-in after the planning horizon of 2025 identified in the NPS EN-1. In addition, the possibility and cost of early decommissioning has not been accounted for by the Applicant, in line with policy objectives of affordability and decarbonisation.”

According to the ClientEarth press release, this represents the first time that the Inspectorate has recommended a major project be refused permission on the basis of its future climate impact.

If favourable to ClientEarth, the outcome of this High Court case could have significant ramifications for those major proposals directly contributing to climate change (e.g. through fossil fuel burning). However, the extent of any impact should be balanced against the fact that this represented an extreme example. In an assessment commissioned by ClientEarth) the project would create 400% more greenhouse gas emissions than in the scenario where the plant is not built. Whether such an approach could be successfully extended to infrastructure with a less direct climate impact (e.g. airports and roads) is certainly less clear. We will publish the outcome of the case in due course.

Posted on: 08/03/2020

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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