The planning system must respond to a changing world, write Nicola Gooch and Claire Petricca-Riding.
Our environmental impact on the planet has never been higher on the agenda. All of the major political parties offered significant manifesto commitments to tackling carbon emissions and improving air quality. The frequency of extreme weather events attributed to climate change, such as flooding, is on the increase and, at a local level, 65% of councils have declared a climate emergency.
Implications in practice
The disruption caused by climate change, and wider environmental issues, does not only manifest in extreme weather and protest marches. It is increasingly impacting on the determination of individual planning applications.
Eleven local authorities across south Hampshire are currently struggling to meet their housing needs because of a build-up of nitrates in protected habitats in the Solent, which led to algae blooms damaging the ecological value of the area. Five of these have been advised by Natural England that “planning permission should not be granted” for new developments unless they are “nitrate-neutral”.
There was a similar moratorium on development in Wealden District Council in 2017/2018, while the authority considered how best to mitigate the impact of vehicle emissions on the Ashdown Forest. This has now been lifted, subject to the approval of mitigation measures set out in the council’s local plan.
Even outside of protected sites, there is a need to be mindful of the potential environmental impacts of prospective development. Earlier this year, the High Court confirmed that environmental issues, particularly the need to mitigate climate change, could be a material consideration in planning decisions. While this may not sound particularly surprising, the issue in R (on the application of McLennan) v Medway Council [2019] EWHC 1738 (Admin); [2019] PLSCS 130 was not necessarily obvious. The planning officer had treated as “immaterial” the impact of the proposed development on a neighbour’s ability to generate electricity from domestic solar panels on his roof. The panels would have been overshadowed by the new development, and their efficiency would have been detrimentally affected.
The future of planning
Even though the snap general election means that the former Conservative government’s flagship Environment Bill is no longer working its way through parliament, its impact is already being felt. The Conservatives changed the National Planning Policy Framework in February 2019 to provide policy support for the new legislation and now the requirement to provide biodiversity net gain is finding its way into draft local plan policies.
Given the myriad ways in which environmental issues can impact on a planning application, and the increasing speed at which the rules are changing, how should the planning and development industry respond?
Many of the problems faced by individual applications cannot be solved by developers alone. Improving air quality or reducing the level of nitrates in the water cannot be achieved solely by individual actions. They require structural or systemic changes. However, where possible, on-site environmental and ecological mitigation will become increasingly important for ensuring planning permission can be granted.
A prime example is Portsmouth’s recently adopted policy response to the nitrate situation in the Solent. The policy states that, where possible, mitigation measures, such as on-site wetlands or taking land out of agricultural use, should be included as part of an application. Where this is not possible, on very small or urban sites, the council has set up a credit purchase scheme, where developers can fund improvements to its own housing stock. These improvements will reduce the nitrates coming from those existing properties sufficiently to offset the impact of a small number of new dwellings.
This combination of strategic solutions and individual site-specific mitigation is a trend that we are likely to see with increasing frequency. Even though the Environment Bill is unlikely to become law in the immediate future, the combination of biodiversity improvements on individual sites and a credit purchase system – where developers could fund improvements on off-site schemes – was a central theme of the draft legislation that had been put forward. Similar schemes have been adopted by local authorities to deal with recreational impacts on protected habitats, air quality and flood risk.
The difficulty is that it can take some time for strategic solutions to be agreed and put into place – leading to the types of development moratoria that have recently plagued the South East. While a strategic solution is being developed, the onus is very much on the individual developer to demonstrate that their proposed scheme will not make the situation worse.
Leading the charge
How this can be achieved will vary, depending on the particular issue that is most likely to be of concern, but taking specialist advice early in the design process is likely to be key. The provision of on-site wetland habitats can provide both a drainage solution and help reduce nitrates entering the water supply, but it is very difficult to design these types of solutions into a development after a planning application has been submitted and is working its way through the system. Similarly, the provision of electric charging points, solar panels and other green energy initiatives, or moving to more environmentally friendly methods of construction, can help reduce the environmental impacts of a development; but they do need to be designed into the project from the start if they are to be effective.
As we move closer to the target date for a carbon-neutral economy, these issues are going to become increasingly prevalent. By looking for ways to design greener developments from their inception, developers can not only try to avoid the need to rely on strategic solutions, where possible, but also start to lead the way on an issue which is, inevitably, going to change the way we build in the future. The need to adapt to climate change, and lessen our environmental impact, is one of the biggest challenges we face as an industry, but perhaps it could also be one of our biggest opportunities to make a real difference.
Nicola Gooch is a planning partner and Claire Petricca-Riding is a planning and environment partner at Irwin Mitchell
