Transcript Climate Change - Cornerstone Barristers

Climate Change
Tilting at windmills?
Jonathan Clay
2-3 Gray’s Inn Square
London
Is it happening at all?
Intergovernmental Panel on Climate Change 2007 states :
• Atmospheric concentration of CO2 has increased from preindustrial 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.
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
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
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”.
PPS 22 continued
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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
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.
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
PPS 22 Continued
Key Material Effects:
• Landscape and visual effects
• Cumulative effects
• Noise
• Odour
• Transport
• Aviation and radar
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”
Energy Review under
challenge
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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."
Energy Review under challenge
Greenpeace 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.
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
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.
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.
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.