Climate Change Tilting at windmills

1
Climate Change Tilting at windmills?

• Jonathan Clay
• 2-3 Grays Inn Square
• London

2
Is it happening at all?

• Intergovernmental Panel on Climate Change 2007
  states
• Atmospheric concentration of CO2 has increased
  from pre-industrial 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.

3
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

4
Governments 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

5
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.

6
PPS 22 continued

• 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

7
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.

8
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

9
PPS 22 Continued

• Key Material Effects
• Landscape and visual effects
• Cumulative effects
• Noise
• Odour
• Transport
• Aviation and radar

10
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

11
Energy Review under challenge

• 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."

12
Energy Review under challengeGreenpeace 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.

13
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

14
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.

15
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.

16
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 BREs 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.