The High Court recently dismissed the Claimant’s challenge to the Decision. Six grounds were deployed. This post focuses on Ground 3 of the challenge, which deals with the interaction between the planning regime and the regime for controlling the emission of carbon gases.
The Secretary of State is under a duty to ensure that the UK’s carbon account reaches “net zero” by 2050 (section 1 of the Climate Change Act 2008 (as amended in 2019 following the Paris Agreement)), the “net zero duty”. To that end, the Secretary of State must prepare carbon budgets, progressively reducing the amount of carbon in the budget to reach that goal.
The litmus test set out in the decision was whether “the emissions from the proposal would be so significant that they would materially affect the ability of the UK to meet” the net zero duty. The Decision held that it would not. At first blush that might seem a bold conclusion given that, as the Decision recorded, it was “largely uncontested” that the Government is (already) not on track to meet the 4th and 5th carbon budgets (although at the time we were not in either Carbon Budget, and the Decision noted that this “means little in relation to budget periods which have not yet started”) and – fundamentally – the proposal would increase the airport’s capacity by 20%.
A central plank of the reasoning is contained in the following passage where the Panel then made three points:
Firstly, although the approach to Net Zero and the carbon budget is a material consideration, the CCA places an obligation on the SoS, not local decision makers, to prepare policies and proposals with a view to meeting the carbon budgets. Secondly, as advised in the NPPF, there is an assumption that controls which are in place will work. Finally, and consequent on the previous points, [the Claimant]’s position that grant of permission in this case would breach the CCA and be unlawful is not accepted. That does not mean that these matters are not material considerations, but the CCA duty rests elsewhere.
Ground 3 challenged that reasoning. It argued – in essence – that it could not be assumed that the Secretary of State would comply with his net zero duty.
Gateshead and Exceptions
The planning regime is an important but ultimately narrow system of control; it focuses essentially on what is appropriate as a matter of public land use. There are other systems of control, sometimes – but not always - overlapping. Take, for example, a pub. Planning might deal with whether it is appropriate to next to (say) a school. Licensing, however, would control whether and who could sell alcohol there. One system of control may very well impact on the other. Whether licensing rules are strictly enforced (thus preventing the publican selling to under-age persons) might well bear on whether the public is acceptable in planning terms.
The control of pollution is a particularly important context where the planning regime may overlap with other systems of control. Gateshead MBC v SSE (1996) 71 P. & C. R. 350 addressed how this should be dealt with. At issue was a clinical waste incinerator. The local planning authority refused permission on pollution grounds, and this was overturned on appeal to the Secretary of State. The Court of Appeal held that the Secretary of State was entitled – absent contrary evidence – to assume that the parallel regime of pollution control would operate effectively. It was not for the planning system to duplicate that system. To do so would be wasteful.
The Gateshead principle is now enshrined in NPPF, paragraph 188. The Decision summarised that paragraph as follows:
the focus of decisions should be on whether a proposed development is an acceptable land use, rather than focusing on the control of emissions which are the subject of separate pollution control regimes. [It] should be assumed that such other regimes will operate effectively
But there must be a parallel system for this to hold good. Gladman v SSCLG  EWCA Civ 1543 illustrates the point. The Court of Appeal held that the Air Quality Directive is programmatic in nature. It imposes a general duty on the state to comply with relevant limit value within the shortest possible time. It sets up no consenting or permitting process. There is nothing “parallel” to the planning regime, and the Gateshead principle does not bite. A decision-maker is not therefore required to assume that the relevant duties under the Air Quality Directive will be complied with.
Ground 3 in more detail
The Claimant argued that the regime of controlling carbon emissions was akin to air quality. It was a programmatic regime. The Gateshead principle did not bite. The Decision was therefore wrong for essentially assuming that the Secretary of State would comply with the duties under the CCA.
The High Court did not accept that argument, essentially for the following reasons:
- The analogy with air quality control was inapposite. Air quality control has a significant and discrete local element, and national policy required local planning authorities to consider air quality at the local level. Carbon emissions, by contrast, are controlled at the national level (¶139);
- Plainly some of the carbon emissions were the subject of a consenting regime. The Secretary of State had chosen to discharge his duty under s. 1 of the CCA by means of emissions trading scheme. There were (relevantly) two emissions trading schemes, one targeting UK-EU flights (the UK ETS) and one targeting UK-non Eu flights (CORSIA). (¶141). The Claimant accepted that the UK ETS was a parallel consenting regime which fell within the Gateshead principle. To consider that trading scheme alone (and not the other schemes, including those which might come forward in the future (see ¶170)) would be illogical. It was the entirety of the measures put forward to reach the net zero target that should be considered; and
- National vs local decision-making. To require a local planning authority to consider whether the Secretary of State would or would not be able to comply with its obligations under the CCA 2008 would lead them an area of national policy, with which they are not directly concerned.
The High Court, at ¶144 noted that the critical part of the Panel’s reasoning was that the net zero duty rested upon the Secretary of State making decisions for the United Kingdom as a whole. Here, however, the Secretary of State was dealing with an individual planning application in a particular local authority. The CCA duty essentially lay in the higher realm of national policymaking; not – as here – local decision making.
I conclude with three general points.
First, the impact of Gateshead is clear. That principle essentially recognises that there may be other parallel systems of control, and where they exist, they should not duplicate by the planning system. The present case helpfully illustrates that principle – but goes further in recognising that not only are there other systems of control, but they may also operate at a higher level. Given the highly complex and national endeavour of reducing emissions to a net zero level, it is perhaps unsurprising that LPAs are not required to ‘duplicate’ such controls at the local level.
Second, Gateshead is not a principle of blind faith. The Panel’s decision needs to be understood in context. All accepted that carbon emissions were a material planning consideration. The Panel noted that the consequence of granting permission was that it would make it more difficult to comply with the net zero duty. However, on the evidence before it, the “comparative magnitude of the increase [in emissions] was limited”. The Gateshead principle is highly fact sensitive. It might very well be rebutted and does not require a decision-maker to adopt a sanguine attitude towards the net zero strategy or the importance of reducing emissions. But the fact remains that that duty lies – as the Panel explained – elsewhere.
Third, it is ever-more important to address emissions … at the national level. As alluded to previously, the judgment is not a call for complacency. It re-iterates that the ‘forum’ for the net zero duty is at the national level. This adds an imminence to the UK potentially lagging behind the carbon budgets.
Michael Rhimes is a barrister at Francis Taylor Building specialising in environmental, planning and public law.
Mark Westmoreland Smith and Charles Streeten appeared for the Defendant Secretary of State in this matter; Michael Humphries KC and Daisy Noble appeared for the Interested Party, Bristol Airport Limited. They have not been involved in the drafting of this post.
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