There has been disbelief and despair at the Planning Inspectorate’s (PINS’) decision to remove critical climate targets from the proposed West Oxfordshire Area Action Plan for a new garden village. This decision is even more extraordinary because the public in West Oxfordshire had backed this ambition. Their views were summarised as “Climate change is the single most important issue for all of us to deal with and this must underpin the development and delivery of the garden village. There should be no reliance on fossil fuels with 100% use of renewable energy. All buildings should be zero-carbon or energy positive[1]….”
And what they said was heard. The Salt Cross Area Action Plan would have expected all new development to demonstrate net zero operational carbon on-site. Would because this ambition has been gutted by the decision of PINS in their notice of major modifications[2] to the plan.
Local authorities driving innovation on climate action have watched the plan’s progress closely as a test case of how net zero can be implemented in local plans. The decision on the major modifications was published without the report setting out the detailed reasoning. However, because the decision is so damaging to the drive for net zero it is worth reflecting on how the Planning Inspectorate appears to have failed to apply both law and policy in a proportionate manner properly. It’s also vital the TCPA reassures other local planning authorities that the drive for the ‘radical reductions’ in carbon emissions is lawful, supported by and consistent with national policy, reflects growing community aspirations and is of course vital to our collective survival.
The facts of the case are simple enough. West Oxfordshire District Council set out a robust policy for a new development in an Area Action Plan including using the Garden City principles and policy on the circular economy and climate change. This included an overall requirement, in Policy 2[3], committing the development to net zero operational emissions on-site. The PINS’ response has been to water down the net zero policy removing both the ambition and the detailed policy approach which delivered it. It’s no exaggeration to say PINS has wrecked the overall net zero approach. The modifications also remove the ambition to rely on 100% renewable energy generation. The original policy proposed by West Oxfordshire states in the first paragraph that:
Policy 2 – Net Zero Carbon Development. Proposals for development at Salt Cross will be required to demonstrate net zero operational carbon on-site through ultra-low energy fabric specification, low carbon technologies and on-site renewable energy generation. An energy strategy will be required with outline and detailed planning submissions, reconfirmed pre-commencement, validated pre-occupation and monitored post-completion demonstrating alignment with this policy.
The planning inspectors’ in their explanatory letter for the main modifications state:
‘…we anticipate that our conclusions in relation to Policy 2 (Net Zero Carbon Development) will come as a disappointment. As such, we will say at this stage that we are not satisfied that Policy 2 is either consistent with national policy or justified. As such, we are unable to conclude that the policy is sound. Our fuller reasoning on this matter will be set out in our report.
The TCPA believes this reasoning is wholly wrong. The NPPF requires plans to be prepared in accordance with relevant legal requirements and sets out the soundness test for plans, which clearly states that policy must be consistent with relevant national planning policy[4]. The West Oxfordshire policy is in fact an exemplar of its kind based on detailed energy modelling and an effective regime of Key Performance Indicators (KPIs). The modifications will make it vague and ambiguous, which is directly contrary to NPPF policy on plan making[5]. The planning inspector has imposed precisely the kind of ineffective policy that local plans should avoid. More importantly, the planning system supporting net zero is clearly government policy not the invention of a single local authority. We also know that government has placed on record its intention to update national planning policy to fully support the net zero and energy security strategies[6]. So, what are the key legal and policy arguments in this debate?
It is useful to begin with some clarity over what might be described as the ‘low hanging fruit’ in relation to planning for net zero. In terms of the fundamental justification for ambitious plan policies on reducing emissions, climate change and specifically carbon reduction are legal and policy priorities for the planning system. Section 19(1A) of the 2004 Planning and Compulsory Purchase Act (‘the 2004 Planning Act’) makes that crystal clear for plan-making, while paragraphs 152 to 154 of the National Planning Policy Framework (NPPF), read with footnote 53, set out the need for ‘radical reductions’ in carbon emissions and for plans to take a ‘proactive approach’ to mitigating and adapting to climate change ‘in line’ with the objectives and provisions of the Climate Change Act 2008. This means that plans must be in line with the required 80% carbon reduction by 2035 and net zero by 2050. Carbon reduction requirements in local plans have twin statutory anchors in both planning law and in relation to the Climate Act whose budgets are adopted as secondary legislation.
As a matter of law and policy therefore a local planning authority is entirely justified, and, in the TCPA’s view required, to set out a net zero objective in planning policy. What we build today will be with us in 2050 and must be fit for zero carbon living.
The TCPA has worked with partners to produce a more detailed statement on the legal and policy justification for net zero which you can download below.
[1]https://www.westoxon.gov.uk/media/jsccjtcl/salt-cross-aap-pre-submission-august-2020.pdf
[2] https://www.westoxon.gov.uk/media/5i3bqltb/insp-17-letter-to-council-re-main-modifications.pdf
[3] https://www.westoxon.gov.uk/media/jsccjtcl/salt-cross-aap-pre-submission-august-2020.pdf
[4] See Para 35 (d) of the NPPF
[5] See Para 16 (d) of the NPPF
[6] The Net Zero Strategy commits to reviewing the NPPF to deliver on the 2050 target and interim carbon budgets.
