Heat, light and chutzpah – why the planning system is at the heart of NetZero carbon debates and litigation

Friends of the Earth Limited, Client Earth, Good Law Project and Joanna Wheatley, v. the Secretary of State for Business, Energy and Industrial Strategy – 2022

For those of us who have studied the Brundtland Report 1987, we know that the heart of sustainable development is real estate and the planning system. Here and now, the framework for delivery of NetZero Carbon relies on a radical new world of energy production, infrastructure provision and land use.  So we are all keen on understanding how Government's NetZero carbon objectives can be achieved.

The major question in this recent case: Had the Secretary of State failed to comply with requirements as to the quantitative and qualitative analysis of policies which are designed to bring about a more challenging carbon reduction target? 

Yes – so the Court required that before the end of March 2023, Government must publish a new Report under s14 of Climate Change Act 2008. That Report needs to provide quantitative assessment of contributions that are expected to be made by individual policies for reductions in greenhouse gas emissions, an analysis of the shortfall against reductions required by the carbon budget, and how that shortfall is to be met. 

Two further points worth considering

• The setting of the 2033-2037 Carbon Budget involved assessing environmental, socio-economic, fiscal, political, scientific and technological considerations. A huge decision.That strategy included the need to minimise emissions from international aviation and shipping attributable to the UK and was produced under great pressure. The clearance of policies took place between the 14 and 18 October 2021.That’s worryingly quick.
• As the judgment highlights, achieving ambitious targets requires Government to set policies for seven sectors:
  • Power.
  • Fuel supply and hydrogen.
  • Industry.
  • Heating buildings.
  • Transport.
  • Natural resources, waste and fluorinated gases.
  • Greenhouse gas removals.

These sectors require permissions, licence and consents to operate new and existing built assets and as an island nation we are short of space. Throw in greenbelt, AONB, national parks, high grade agricultural land, areas of coastal erosion, contaminated land, and publicly owned land not available for redevelopment. It’s a complex mix of competing land uses where the planning balance has to be played out in line with a carbon budget.

Then look at areas where very tangible progress has not been achieved – surface transport, electricity supply, buildings, manufacturing and construction, and agricultural and land use. The adaptation of those areas requires further reform of planning law, policy and guidance. 

The new Government has the vision of boosting economic growth by way of the 1980’s Heseltine classic – Enterprise Zones, now to be known as Investment Zones.

It’s more than fair to say that the  new PM must swiftly engage with the real estate sector to understand how we think NetZero carbon can be achieved and what changes the private sector knows it can work with to produce the future that we all seem to want.

A different version of this article was first published in Property Week