Net zero carbon real estate: planning – Out-Law.com

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Out-Law Guide | 06 Sep 2021 | 9:15 am | 3 min. read
It is an area which is affected by politics at all levels, with nationally-set planning legislation and policy sitting alongside development plans and other policy adopted at the local authority level. The current trend of de-regulation – more permitted development rights; increased flexibility in use classes; and further reforms anticipated in the Planning Bill – does not always sit easily with the need to mitigate and adapt to climate change, a tension which is likely to become more prominent as policy evolves and projects are considered in detail.
Planning applications must be determined in accordance with the development plan unless material considerations indicate otherwise. This statutory provision gives primacy to policy set at the local level, but it is also clear that other matters – such as national policy – can be significant factors for any particular scheme.
An introduction to net zero carbon real estate
The National Planning Policy Framework (NPPF) has a strong vision for the planning system, supporting “the transition to a low carbon future in a changing climate”, and declaring that it should “shape places in ways that contribute to radical reductions in greenhouse gas emissions, minimise vulnerability and improve resilience; encourage the reuse of existing resources, including the conversion of existing buildings; and support renewable and low carbon energy and associated infrastructure”.
On top of this there is also a statutory requirement that development plans must include “policies designed to ensure that the development and use of land … contribute to the mitigation of, and adaptation to, climate change”.
How far local policy then goes depends on a number of factors, including politics, local economy and industry, and how up to date the policy documents are. Local authorities also need to take account of the requirement in the NPPF for local requirements for buildings’ sustainability to “reflect the government’s national technical standards”.
The London Plan 2020 includes examples of the more stringent low carbon policies being imposed. These include:
Policies such as these clearly place a significant emphasis on the sustainability credentials of a new development. They also mean there must be a detailed analysis of greenhouse gas (GHG) emissions for all stages of a development.
For these policies to have effect it is clearly also necessary for the building design and energy strategies considered at the application stage to be implemented, and that is achieved through the planning conditions and section 106 obligations. At their most basic level these will require implementation of the approved plans, but will also extend well beyond that, for example to require independent verification reports to be submitted to the local planning authority, or they may contain detailed provisions seeking to maximise the prospects of a planned combined heat and power network being used by new developments.
It is clear to see the direction of travel for planning policies – in some cases carbon-related requirements will push developers to do more, whilst in other cases the real estate industry may already be going beyond the local requirements due to other drivers. Developers will, as for all policies, want to keep a close eye on the emerging shape of decarbonisation policies, to ensure that they are compatible with a viable scheme.
There has been a continued increase in litigation based on climate-related grounds generally, and the planning system is no exception. To-date, a number of the legal challenges have focused on infrastructure – such as national policy in relation airports, energy and roads – and there are others which are targeting local plans and real estate development.
Examples of relevant judicial review challenges include:
EIAs have long provided grounds for challenging planning decisions, and with the EIA Regulations since 2017 requiring consideration of the impact of a project on climate, this trend is very likely to continue and contribute to the increasing range of challenges based around climate issues.
Developers cannot prevent a challenge being brought in respect of their planning permissions, but it is possible to make it as hard as possible to bring a successful judicial review claim. A positive approach to sustainability and climate factors is an important part of that strategy.
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Nick McDonald
Partner
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