Damned if you do: How can councils make planning decisions in a climate emergency?

The lack of clear guidance was highlighted last week when councils 160km from one another made contrastingly different decisions on proposals for very similar schemes.

Within hours of one another, Stockport Council ditched plans for a £500M bypass, describing it as “an old world solution”. Meanwhile, in Lincolnshire, the county council gave the green light for a £212M bypass despite funding and environmental concerns.

Both decision were met with anger. In Stockport, opposition councillors labelled the ruling as “very frustrating”. Meanwhile in Lincoln, environmentalists continue to campaign for a rethink. For the councils it is a clear case of: damned if you do, damned if you don’t.

And it is a similar story up and down the country. In Herefordshire, the council is attempting to wean itself off road building after a change of administration led to two major schemes being scrapped last year. However, in neighbouring Shropshire the council is pressing ahead with its plans for a North West Relief Road despite pleas from the Environment Agency and local campaign groups objecting to it.

In Wales, meanwhile, the Welsh Government made the major decision to halt the procurement of new roads and road widening projects in June 2021 pending a review of their environmental impact.

Consequently, planning decisions taken by local councils are increasingly being called-in by central government to have the final say. Proposed expansions at Leeds Bradford and Luton airports and the controversial Cumbrian coal mine are just three recent examples where the local council’s planning process was deemed inadequate. In each case, the respective secretary of state has called-in the decision due to environmental concerns and considerations. Which begs the question: Why aren’t councils given clearer guidelines when it comes to assessing planning applications during a climate emergency?

While most local authorities across the UK have made bold climate emergency declarations, many are failing to implement that into their decision making process. A review carried out by the Environmental Law Foundation (ELF) recently concluded that, out of the 376 local authorities which they reviewed, 79% had made such a declaration.

However, ELF also concluded that, in many instances, “the action does not match the rhetoric” and that “there needs to be a step change in the way in which these declarations are treated within […] decision-making processes” by local authorities if they are to be anything other than “worthless political statements”.

Transport Action Network founder Chris Todd told NCE that change must “start at the top” with a major overhaul of the National Policy Statements (NPSs) that undermine decision on major infrastructure projects.

The DfT's transport decarbonisation plan commits the government to reviewing the National Networks Policy Statement (NNPS), which effectively underpins road investment and planning policy within the UK. Shapps has confirmed that the review will not be concluded until Spring 2023, meaning road schemes earmarked for construction before then will continue as planned. Planning officials have been instructed to use the existing policy statement as guidance when examining planning applications during the next two years.

The current NNPS was written up in 2014 before the government's legal commitment to net zero was announced, and before the publication of the government's 10 Point Plan for a Green Industrial Revolution, its Sixth Carbon Budget and the transport decarbonisation plan. The Transport Action Network therefore claims that it is “unacceptable” to keep it in use for the next two years.

“While local councils do not need to refer to an NPS when making their decisions, often the NPS sets the tone for smaller projects and planning decisions,” Todd said. “At the moment we are in a period where planning decisions are being made with out of date guidelines.

"But it is not just for government to sort out. Councils can do more to research. It is not good enough to declare a climate emergency and then carry on as if nothing has changed.”

He added: “Recent decisions show that while some councils now ‘get it’, others still have a long way to go.”

Likewise, a recent blog post by planning and development consultancy Litchfields adds that “declaring a climate emergency and setting a net zero target is only the first step” and that “local authorities have very different approaches to implementation of these reduction targets”.

“Some authorities are focusing on how the Council itself can achieve carbon neutrality in its day to day operations; whilst others have begun to roll the declaration out into their wider services – including planning,” the Litchfields post adds.

Like Todd, many believe that climate change should be considered a mandatory material consideration even if that is not yet an established principle of law. But even if, and when, it becomes law, Litchfields argues that it could still be open to interpretation.

“The challenge in drafting policy of this nature is embedding flexibility that accommodates the likely emergence of new technology to address climate change; and future and ongoing changes in international/national law and policy. Policy wording which encourages applicants to demonstrate that they have ‘addressed climate change’ as part of development proposals allows this level of flexibility. However it does not provide absolute clarity on how individual schemes can ensure that they have met requirements; and may not therefore go as far as is needed to effect real change towards the [net zero] agenda.”

However, could councils be held to account legally for failing to follow through on their climate declarations? In a seperate blog post, Francis Taylor Building environmental lawyer Richard Honey said that local authorities could technically be held to account for failing to make good on their promises but were likely to escape any formal punishment due to the ambiguity of most declarations.

“Local authorities have rushed to make declarations declaring a climate emergency but the status of such declarations in decision-making has yet to be tested by any legal challenge,” Honey writes. “The general position will be that declarations of climate emergency will not have legal teeth. Declarations are inherently vague and aspirational calls for action which are unlikely to give rise to public law consequences.”

And it is not just an issue for local authorities. Major road schemes tabled in England by National Highways have also been hit with planning delays due environmental concerns. The latest planning delay was announced just four days into 2022, with transport secretary Grant Shapps putting off his decision on the proposed A1 upgrade between Morpeth and Ellingham in Northumberland. It is the latest in a long line of planning delays from the transport secretary.

In the week before Christmas, Shapps deferred his decision on the planned M25 upgrade at Junction 28. In October last year he delayed his decision for the third time on the proposed £100M to £250M upgrade of an interchange where the M25 meets the A3 in Surrey. In the same month he pushed back the decision on the proposed M54 to M6 link road to April. In addition, decisions on planning applications relating to the A303 Sparkford, Amesbury dual carriageways and the A63 improvement scheme were also delayed.

The official reasons for the delays are often cited as for “further consideration of environmental matters”.

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