Climate Change Tilting at windmills?

1. Climate Change Tilting at windmills? Jonathan Clay 2-3 Gray’s Inn Square London

2. Is it happening at all? Intergovernmental Panel on Climate Change 2007 states : • Atmospheric concentration of CO2 has increased from pre-industrial value of 280ppm to 380 ppm in 2005. • The primary source of increased atmospheric CO2 results from use of fossil fuel with a further contribution from land use changes. • Atmospheric CO2 already far exceeds the natural range over the last 650,000 years.(180-300 ppm) • IPCC scientists consider 9/10 likelihood that current warming is due (at least in part) to the effect of human activities, in particular the burning of fossil fuels.

3. Effects of Climate Change • Global average temperature increase of 1 degree since 1900. • Largest increase in the last 40 years • Global sea level rising • Snow cover reduced • Melting of ice caps and glaciers • Changes in precipitation amounts, ocean salinity, wind patterns, incidence of extreme weather –wind patterns, droughts, heat waves, intensity of tropical cyclones

4. Government’s Response • PPS 22 Renewable Energy 2004 • Energy Review 2006 • Consultation Draft PPS “Planning and Climate Change” (supplement to PPS1) November 2006 • Code for Sustainable Homes December 2006

5. PPS22 Renewable Energy • 15 page Policy Statement • 182 page Companion Guide! • Renewable energy covers “those energy flows that occur naturally and repeatedly in the environment – wind, water, movement of oceans, sun and biomass”.

6. PPS 22 continued • Relevant technologies: • Onshore wind • Hydro • Photovoltaics • Passive solar • Biomass and energy crops • Energy from waste (but not energy from mass incineration of domestic waste) and landfill • Sewage gas. • But note principles for waste management decisions in PPG 10

7. PPS 22 continued 8 key principles: • Renewable energy developments capable of being accommodated throughout England. • RSS and LDD s should promote, not restrict development of renewables. • No policies which rule out or even place constraints on renewables development. • Wider environmental and economic benefits of all renewable energy projects should be given significant weight whatever their scale. • Do not make technical assumptions about locations – technology may change. • Do not reject applications because output levels are small • Ensure early engagement and involvement of affected communities. • Development proposals must demonstrate environmental, social and economic benefits and how environmental and social impacts have been minimised.

8. PPS 22 Continued Other features: • Targets - expressed as a minimum • Monitoring of targets • If target is likely to be met, increase it! • Criteria based policies, not site allocations. • Protection of Internationally and nationally designated sites and Green Belts. • Locally designations do not justify refusal. • Criteria based site selection • No sequential assessment

9. PPS 22 Continued Key Material Effects: • Landscape and visual effects • Cumulative effects • Noise • Odour • Transport • Aviation and radar

10. Energy Review July 2006 • Main objective - to reduce carbon emissions • Stated to be material consideration, adding support to existing planning policy. • Strategy based on commitment to the Renewables Obligation • “Clear statement on nuclear power” • “Reform of the Planning System” which takes “in principle decision out of the public inquiry process, leave the PI system to focus on local planning and environmental issues; or “how the specific local impacts of construction and operation of the plant can be minimised”

11. Energy Review under challenge • Greenpeace v DTI [2007] EWHC 311 (Admin) per Sullivan J. • "Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so." (see per Laws LJ at paragraph 68 of R (Nadarajah and Abdi) v Secretary of State for the Home Department [2005] EWCA Civ 1363) • In R v North & East Devon Health Authority, ex parte Coughlan [2001] QB 213, Lord Woolf MR giving the judgment of the Court of Appeal said in paragraph 108: “ It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168."

12. Energy Review under challengeGreenpeace v DTI continued • " It is an accepted general principle of administrative law that a public body undertaking consultation must do so fairly as required by the circumstances of the case " see per Auld LJ at paragraph 90 of Edwards. • “The consultation exercise was very seriously flawed. Adopting the test put forward by Mr Drabble [for Greenpeace], "something has gone clearly and radically wrong." • There could be no proper consultation, let alone "the fullest public consultation" as promised in the 2003 White Paper • “There was therefore procedural unfairness, and a breach of the claimant's legitimate expectation that there would be "the fullest public consultation" before a decision was taken to support new nuclear build.” • Declaration: a breach of the claimant's legitimate expectation to fullest public consultation; that the consultation process was procedurally unfair; and that therefore the decision in the Energy Review that nuclear new build "has a role to play ..." was unlawful.

13. Consultation Draft PPS “Planning and Climate Change” Nov. 2006 • Aim: to set “a framework for achieving zero carbon development” • Builds on policies in PPS1 • Ensure that development plans contribute to global sustainability by addressing the causes and impacts of climate change. • Seven key planning objectives

14. Consultation Draft PPS “Planning and Climate Change” Nov 2006 • 1. Make full contribution to delivering Government climate change programme • 2. Secure highest viable standards of resource and energy efficiency in new development • 3. Make fullest possible use of sustainable transport • 4. Secure new development and shape places resilient to climate change • 5. Sustain biodiversity • 6. Reflect development needs and interests of communities • 7. Respond to concern of business and encourage technical innovation.

15. Consultation Draft PPS “Planning and Climate Change” Nov 2006 • Integration with Building Regulations • Important to be clear about distinction between role of planning policy and building regulations • DPDs will set policies for provision of low carbon and renewable sources of energy to “provide the platform” to secure increased efficiency required by Building Regs • In interim (before plans adopted) planning authorities should require standard of 10 %. • Where there are local opportunities for requiring higher levels of building performance these should be set out in a DPD.

16. Code for Sustainable Homes • Not planning policy guidance • Voluntary code, but house builders should follow it because the Government is considering making the Code mandatory. • Based on BRE’s “Eco Homes” System which has been used especially for social housing development. • Sits “…alongside the planning system which guides sustainability in broader locations and aesthetic issues.” • Provides a scoring system “sustainability rating” in design categories such as energy, water, materials, surface water run off, waste, pollution, health and well being, management, ecology. • Star ratings from * to ****** (1 to 6 stars) 1= 10% better than Part L 2006 ; 6 = zero carbon.