The Planning Brief | Autumn

Infrastructure Consenting – PA 2008

R (on the application of Dr Andrew Boswell) v Secretary of State for Energy Security and Net Zero [2024] EWHC 2128 (Admin)

The High Court dismissed an application for judicial review of the Secretary of State’s decision to grant a development consent order for the Net Zero Teesside Carbon Capture Use and Storage project (“the Project”), confirming that challenges to those decisions can only proceed on points of law.  View document

The Claimant in this case argued that the Secretary of State’s reasons for granting development consent lacked sound reasoning and misinterpreted the law. The Claimant argued that the Secretary of State relied on the Institute of Environmental Management and Assessment ("IEMA") Guidance which  indicated significant adverse effects of Green House Gas emissions, therefore the Secretary of State’s reasons for concluding that the Project would help deliver net zero were inadequate. 

The High Court found that the Secretary of State’s decision letter was clear and relied on relevant policy. Justice Lieven found that the Secretary of State’s reasoning and conclusions made sense if she was assessing significance on the simple basis of EN-1 and EN-2, and through the clear approach that 20 million tonnes of CO2 was a very large quantum of greenhouse gas emissions. Her reasons also made sense if they were read in such a way that she was applying the more absolute analysis at the Environmental Impact Assessment (EIA) stage, and then weighing that against the broader policy context of transition to net zero at the substantive stage. The purpose of EIA was to improve environmental decision making, not create an obstacle course for it. 

Justice Lieven found that the Claimant had deliberately ignored the national policy position on the net zero trajectory and the need for both Carbon Capture Storage (CCS) and Carbon Capture Storage and Utilisation (CCSU) in making their arguments.

Once again, the courts have emphasised that challenges to decisions of this nature must be founded on points of law – any attempt to collaterally challenge underlying policy will not succeed.

However, the Court of Appeal has accepted the Claimant’s application to appeal the High Court’s decision.

The appeal is due to be heard in March 2025. If the Court of Appeal finds merit in Dr Boswell’s arguments, it could overturn the High Court’s decision which may lead to the revocation of the project’s approval. 

The Court of Appeal decision is expected to have a significant impact on the interpretation of the National Policy Statement for Energy (EN-1). 

• the repurposing of a former China clay pit and use of adjacent land at Trelavour Downs, Cornwall, for operation as a lithium mine, processing and refining facility to produce battery grade lithium hydroxide for the UK battery manufacturing industry
• transport infrastructure to convey materials and utilities between the Trelavour pit and a processing facility approximately 500 metres away 

The Secretary of State  concluded that the project by itself is of national significance for the following reasons: 

• it would be likely to have significant economic impact and drive growth in the economy
• it will impact on an area wider than a single local authority area
• it is for the extraction of a strategically important industrial mineral
• it would benefit from the application being determined through a single, unified consenting process provided by the Planning Act and removing the need to apply and the uncertainty of applying for separate powers and consents

The project is the first of its type to be brought within the NSIP regime will be important in securing a domestic lithium supply to support the UK’s transition to renewable energy and will also help to create employment opportunities locally. It may also help to pave the way for future lithium mining projects which will help to meet the UK’s growing needs.

Planning Policy

National Planning Policy Framework Consultation closed on 24 September

The Government’s consultation on its proposed reforms to the NPPF closed on 24 September 2024. View document

The consultation (which affects England only) included questions relating to the assessment of housing need and delivery of affordable housing, as well as the proposed concept of the “grey belt,” principles relating to the use of brownfield and green belt land, and how green energy development can be supported. Some of the key changes include:

• Green belt land: the Green Belt policy as a whole is being reviewed as the Government notes both the importance of this land, but also the potential that it holds – as such, neither the general extent nor the purpose is being altered. Noting that brownfield land should be looked to first, it is proposed that where a local planning authority is unable to meet housing, commercial or other needs, it should undertake a Green Belt review to release poor quality grey belt land from the Green Belt. There will also be ‘golden rules’ for land released from the Green Belt to protect land where necessary and consideration will be given to the function of the Green Belt as a whole. 
• Grey belt land: a brand new definition of ‘Grey Belt’ land is proposed to be inserted into the NPPF, which reads: “For the purposes of Plan-making and decision-making, grey belt is defined as land in the Green Belt comprising Previously Developed Land and any other parcels and/or areas of Green Belt land that make a limited contribution to the five Green Belt purposes (as defined in para 140 of this Framework) but excluding those areas or assets of particular importance listed in footnote 7 of this Framework (other than land designated as Green Belt)”. 
• Housing: the updated NPPF proposes to reinstate the 5-year housing land supply (5YHLS) meaning that local planning authorities will need to demonstrate this, regardless of local plan status. The 5YHLS will seek to ensure that there is a constant pipeline for the construction of housing. Additionally, the 5% buffer on the 5YHLS is proposed to be reinstated in all cases, on top of the existing 20% where significant under-delivery has been apparent in the preceding 3 years. This is designed to align with the Government’s target of 1.5 million new houses.
• Local plan intervention policy: as things stand, decisions on local plan intervention are made in line with existing legal provisions and policy criteria. The consultation seeks to establish whether entirely removing the policy criteria, and in turn relying solely on the legal tests, would be preferred to revising the existing policy. 
• NSIP regime: the consultation also considers areas in which the NSIP regime can be amended and expanded to support the Government’s objectives. It considers bringing onshore wind back into the NSIP regime, adjusting thresholds to alter which proposed projects fall under the regime and enabling digital infrastructure projects to opt into the regime. Depending on the results from this consultation, further NSIP reform could be on the horizon. 

Vistry Homes Limited v Secretary of State for Levelling Up, Housing and Communities [2024]

Green Belt development refusals upheld: the High Court dismissed appeals by Vistry Homes Limited and Fairfax Acquisitions Limited against two decisions to refuse appeals to the Secretary of State for Levelling Up, Housing and Communities for large housing schemes on Green Belt land. View document

The Claimants challenged:

• the Inspector’s treatment of the developments’ provision of 10% biodiversity net gain (BNG); 
• Vistry’s use of previously developed land (PDL); and 
• Fairfax’s provision of economic benefits, 

in weighing up the ‘Very Special Circumstances’ balance required to approve development in the Green Belt.

BNG

Justice Holgate found that when attributing ‘limited’ and ‘moderate’ weight to the developments’ BNG provisions, the Inspector had treated the not-yet-in-force BNG legislation as a benchmark and was entitled to do so.

Previously Developed Land 

On the use of  PDL the High Court found that policy on the development of PDL is contingent on there being no conflict with other policies in the NPPF. As such, this shouldn’t alter the conclusion if the VSC balance would otherwise weigh against the proposal.

Economic Benefits

As for economic benefits, the Inspector was entitled to take into account that:

• the scheme was contrary to local and national policy and the aim of the plan-led system to deliver sustainable development;
• the fact that the type of economic benefit would arise from any housing development; 
• where it appears that development will need to take place on Green Belt land, but the local plan is out of date, judgement on where to allow such development is a matter to be determined in the future local plan. 

Crucially, the High Court found that an Inspector can give greater weight to benefits achieved in accordance with the plan-led system, and lesser weight to those which are not.

Labour Government

Since coming into power Labour have made clear their ambition to reform the planning and infrastructure regime. View document

Labour has so far:

• announced plans to deliver up to 5,000 new affordable social homes with £500 million in new funding for the Affordable Homes Programme
• stated that it will consult on a new 5-year social housing rent settlement with the intention that this will provide the sector with the certainty it needs to invest in new social housing
• announced that it will increase the stock of social housing through a new 5-year social housing rent settlement 

It was announced in the King’s Speech that the Government would be introducing a Planning and Infrastructure Bill to accelerate the delivery of high quality planning infrastructure and housing and proposals include the following:

• the Government has been revisiting PINS data centre decisions such as the proposals in Hertfordshire and additional ones have been proposed, such as one in Greater Manchester. Data centres are now classed as “critical national infrastructure” and are now on equal footing with water, energy and emergency service systems
• modernising planning committees by introducing a national scheme of delegation to avoid applications being reviewed multiple times
• a new NPPF is to be adopted by the end of the year following an ongoing consultation
• a New Towns Taskforce which will support the government to deliver the next generation of new towns and thereby boost economic growth and the supply of new homes

Environmental Impact Assessment 

Friends of the Earth and another -v- Secretary of State for Levelling Up, Housing and Communities and others [2024] EWHC 2349 (Admin) . View document

The successful grounds of challenge were:

• Downstream impacts: the Court applied the decision in R (Finch on behalf of the Weald Action Group) v Surrey County Council [2024] UKSC 20and found that there had been a failure to consider the downstream effects of the development. The Secretary of State was therefore in breach of the Environmental Impact Assessment (“EIA”) regulations by deciding that the greenhouse gas emissions from the burning of the coal produced by the development were not significant.
• Substitution: linked to the Finch issue, the developer had argued that there would not be an increase in emissions (including downstream emissions) because the extraction of coal from the development would result in an equivalent amount of US coal remaining in the ground. However, the Court disagreed, noting that this argument was “absurd,” and that the substitution of US coal was not a relevant factor in determining whether the burning of the coal extracted from Cumbria would be a likely significant effect of the development. This was due to the lack of causative link, with the Court noting the two effects should have been assessed separately to enable the public to engage in the EIA process by demonstrating evidentially any claimed substitution effect.
• International Impact: the Secretary of State failed to have regard/failed to provide adequate reasons in respect of evidence on the impact of granting planning permission for the coal mine on the ability of the United Kingdom to perform its role in promoting international action to address climate change.
• Offsetting: the Secretary of State erred in law in the treatment of the issues relating to the developer’s proposed scheme for offsetting residual emissions from the coal mine itself.

The case provides a helpful example of how the principles of the Finch case are to be applied in practice (particularly as it is one of first cases considering this issue since Finch was decided). It also provides useful clarification that full information and a separate assessment is needed from a developer seeking to demonstrate a substitution effect.

Register to receive future editions of the UK Planning Brief straight to your inbox.