Environmental News Update - 16 December
Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law.
NEWS ROUND UP
New NPPF fresh off the press: a run through of environmental provisions
On 12 December, the government published its revised National Planning Policy Framework (“NPPF”), responding to the draft that was previously circulated for consultation. The main environmental-related changes are set out below. For further commentary on the key differences between the newly published NPPF and the previous consultation draft, please see planning partner Nicola Gooch’s post here.
Buckle up: changes to Grey Belt and Green Belt
The updated NPPF has amended the definition of “Grey Belt” land. In the consultation draft, Grey Belt land was defined as “land in the green belt comprising previously developed and any other parcels and/or areas of green belt land that make a limited contribution to the five green belt purposes”.
This definition has now been updated to only refer to three of those green belt purposes.
The updated definition defines Grey Belt land as “land in the green belt comprising previously developed land and/or any other land that, in either case, does not strongly contribute to any of purposes (a), (b) or (d) in paragraph 143” of the NPPF. Those purposes are, respectively, to check the unrestricted sprawl of large built-up areas; prevent neighbouring towns merging into each other and to preserve the setting and special character of historic towns. The two purposes no longer referred to include assisting in safeguarding the countryside from encroachment and assisting in urban regeneration through the recycling of derelict and other urban land.
Grey belt land also excludes land where the application of policies relating to National Parks, the Broads and National Landscapes, SSSIs, local green spaces, designated heritage assets, areas at risk of flooding or coastal change, would provide a strong reason for refusing or restricting development.
Development on Grey Belt land is no longer considered "inappropriate" (paragraph 155) and does not need to demonstrate Very Special Circumstances for approval, provided it meets certain criteria as per the “Golden Rules” in paragraph 156. (e.g. high levels of affordable housing and related infrastructure). Paragraph 146 now outlines exceptional circumstances when Green Belt boundaries may be altered. When doing so, the need to promote sustainable patterns of development should determine whether a site’s location is appropriate.
Housing and Infrastructure
The policy includes new mandatory housing targets for local authorities in paragraph 11., focusing on areas with high levels of unaffordable housing and potential for growth. This is coupled with a "common sense" approach to the Green Belt, balancing development needs with environmental protection.
The “Golden Rules” and Local Nature Recovery Strategies:
All development on Grey Belt land, and all new Green Belt releases, will need to meet the “Golden Rules”. The updated NPPF amends these rules to (amongst other changes) emphasise the potential role for Local Nature Recovery Strategies. Development proposals which comply with the Golden Rules will be given significant weight in favour of the grant of permission.
The updated version also set out that “improvements to green spaces required as part of the Golden Rules should contribute positively to the landscape setting of the development, support nature recovery and meet local standards for green space provision where these exist in the development plan” and that “where land has been identified as having a particular potential for habitat creation or nature recovery within the Local Nature Recovery Strategies, proposals should contribute towards these outcomes”.
Further planning practice guidance on Local Nature Recovery Strategies is expected in January 2025, to clarify the role that such strategies can play in enhancing the greenbelt, and in providing greater certainty to stakeholders when considering the role of these strategies in the planning decision making process.
Nature Recovery: a nod to priority and threatened species
A new line has been inserted into the chapter on Conserving and Enhancing the Natural Environment “in recognition of the ways that development can support nature recovery” and building on existing NPPF wording which seeks to help protect, and indicate the importance of, priority and threatened species. The additional language inserted highlights the need to incorporate “features which support priority or threatened species such as swifts, bats and hedgehogs”.
Presumption in Favour of Sustainable Development and renewable energy
In line with more policy support for renewable energy schemes, amendments in the updated NPPF have been made which are intended to “direct decision makers to give significant weight to the benefits associated with renewable and low carbon energy generation, and proposals’ contribution to meeting a net zero future”.
The NPPF includes:
- Paragraph 126 places a strong emphasis on sustainable development, particularly on brownfield sites;
- Paragraph 161 highlights the importance of addressing the scale of the environmental challenge; and
- Paragraph 163 adds that climate change “should” be considered in preparing and assessing planning applications.
Such changes are aimed to “increase the likelihood of local planning authorities granting permission to renewable energy schemes and contribute to reaching zero carbon electricity generation by 2030.”
The updated NPPF has also confirmed that the environmental benefits of renewable energy schemes can be used as “Very Special Circumstances” when it comes to development within the Green Belt.
Changes to the requirement for the sequential test for flood risk
The updated NPPF includes a new paragraph to “clarify that a requirement for a sequential test is not triggered where it can be demonstrated, using a site-specific risk assessment, that no new development or access and egress route is proposed in an area of flood risk from any source.” This change is intended to maintain standards of flood protection and provide local planning authorities with the appropriate information needed when assessing applications, and also making the application process more proportionate.
More changes to come…
The NPPF makes it clear that the government are far from finished with policy reform in this area – in particular when it comes to the effort to balance development alongside environmental sustainability. Selected areas for further consultation or forthcoming legislation are set out below.
- Land Use: The government has confirmed in its updated draft that it plans to publish a 12-week consultation on land use early in 2025 which should inform the development of a Land Use Framework for England, setting out the government’s plans for long-term land use change, decision making and priority areas for policy change.
- Carbon Accounting: The updated NPPF confirms that the government intends “to update planning practice guidance to assist local authorities in considering carbon emissions within the plan-making process, and to support developers in using carbon accounting to reduce carbon emissions as part of their development proposals”.
- Onshore Wind: The updated NPPF confirms that, following consultations around onshore wind and the NSIP regime, the government will bring forward legislation in early 2025 to bring onshore wind back into the domain of the NSIP regime (at a threshold of 100MW).
- Solar: New legislation is expected in early 2025 to bring solar projects meeting a 100MW threshold within the NSIP regime.
- Review of what constitutes an “irreplaceable habitat”: The updated NPPF has confirmed that “the government plans in due course to review and ensure the robustness of the definition of irreplaceable habitats”. This comes after the consultation draft of the NPPF asked whether there should be additional protections or compensatory mechanisms available for certain habitats that are unsuitable for renewable energy development given their role in carbon sequestration – i.e. habitats containing peat soils.
Planning Reform Working Paper: Development and Nature Recover
Sunday 15 December saw the release of the above working paper which seeks views (it is not a formal consultation) on the reforms proposed by the Levelling Up and Regeneration Act of environmental outcome reporting.
The details of the paper are to:
“The paper proposes a new approach which uses funding from development to deliver environmental improvements, and moves more responsibility for these improvements onto the state rather than developers. The aim of this approach is to free up and accelerate development while ensuring better environmental outcomes.”
Paragraph 13 provides the basis for the proposal, this being:
“13. We want to meet these objectives by taking 3 steps for which the Planning and Infrastructure Bill will provide the necessary legislative underpinning. A) Moving responsibility for identifying actions to address environmental impacts away from multiple project-specific assessments in an area to a single strategic assessment and delivery plan. This will allow action to address environmental impacts from development to be taken strategically, at an appropriate geographic scale, rather than at the level of an individual project – while recognising the importance of protecting local communities’ access to nature and green space. B) Moving more responsibility for planning and implementing these strategic actions onto the state, delivered through organisations with the right expertise and with the necessary flexibility to take actions that most effectively deliver positive outcomes for nature. C) In turn, allowing impacts to be dealt with strategically in exchange for a financial payment that helps fund strategic actions, so development can proceed more quickly. Project-level environmental assessments are then limited only to those harms not dealt with strategically.”
Through the set up of a delivery plan, set up by (a) delivery body, this will incorporate much broader environmental outcomes and principles of an area/ issue and will bring together the current environmental protections, Local Nature Recovery Strategies, but this would be in addition to the mandatory biodiversity net gain requirement. Developments will pay for a nature recovery levy provided by the plan so as to have a simpler and fairer system for all parties.
This also recognises that not all environmental mitigation is or has been delivered. A recent survey by the University of Sheffield surveyed 6000 homes across 42 developments and half of the proposed environmental mitigation has been delivered.
Further information on the paper can be found here
Walleys Quarry appeal closure notice
As reported in our round-up published on 29 November (here), the Environment Agency (“EA”) had the day before issued a Closure Notice to Walleys Quarry Ltd. The site is located on the edge of Newcastle-under-Lyme in Staffordshire and this action followed years of complaints from local residents, a court case, enforcement action, a criminal investigation and an abatement notice. It was reported to be the first time the EA have issued a closure notice to an operational waste site.
Amongst other things, the consequence of the closure notice is that the site is not permitted to accept any new waste, is be required to permanently cap the remainder of the site, and need to install further landfill gas management infrastructure.
Walley’s had immediately said they would challenge the closure notice “using all available options” and this week it has been confirmed they are appealing the EA’s decision. Walley’s have asked the appeal proceed by way of an inquiry. Such appeals will generally be before an inspector appointed by the Planning Inspectorate but the environment secretary will have the option to recover the case if it is felt to be sufficiently important.
In light of this, the EA cancelled a public meeting that had been planned to answer questions about the closure notice that was due to be held earlier this week.
Post-Legislative review of the Environment Act 2021 announced
The environment secretary, Steve Reed, has confirmed that there will be a post-legislative review carried out to consider how the Environment Act 2021 is delivering on its objective.
This follows a report published by the Environmental Audit Committee (“EAC”) in May this year, who outlined that there was a “compelling case” for the Environment Act to be reviewed to “examine whether its provisions are functioning as ministers claimed they would during the passage of the bill, and as parliament intended them to.” Such a review, the EAC noted, should report on the implementation and operation of the Act to inform post-legislative scrutiny.
In a letter sent to the EAC on 29 November, Steve Reed set out that the resulting memorandum from such a review is likely to be expected by November 2026.
Responding to the announcement of the review, Toby Perkins, chair of the EAC has noted that “there is understandable concern that progress towards many of [the ambitious targets set out in the Environment Act 2021] is currently off track” and that “this is why Parliament must be given the opportunity to ensure the policy and legislation levers are adequate to allow our fragile environment to recover and flourish and to deliver the improvements which Parliament intended”.
UK Government faces legal challenge over Climate Adaptation Strategy
The UK government’s climate adaption strategy is under renewed scrutiny as Friends of the Earth and two co-claimants launch an appeal against the High Court’s decision to reject their legal challenge. The claimants argue that the current National Adaption Programme (“NAP”) is inadequate and fails to meet the obligations set out under the Climate Change Act.
The decision to appeal comes at a poignant time for one of the co-claimants Kevin Jordan who is marking the first anniversary of his Norfolk home being demolished due to coastal erosion. The erosion exacerbated by rising sea levels and more frequent storms driven by climate change rendered his home too dangerous to inhabit.
Alongside Kevin Jordan is Doug Paulley, a disability rights campaigner, who believes that the UK government’s adaption plans neglect the needs of disabled people. Paulley highlights how the failure to account for vulnerable groups, particularly in care homes, during extreme weather events such as heatwaves places lives at serious risk.
The claimants argue that the NAP introduced by the previous government in July 2023 does not comply with legal requirements. They claim it lacks specific, measurable objectives and fails to include adequate risk assessments to ensure the polices will deliver the intended outcomes. Additionally, they argue that the government’s approach marginalises vulnerable groups breaching their human rights by excluding them from the decision-making processes.
This case is part of a growing trend of climate-related litigation world-wide where campaigners and affected citizens are turning to the courts to hold governments accountable for failing to act on climate commitments.
The court’s decision on whether the appeal will proceed is expected in the next few months.
UK government scraps mandatory single-use cup takeback scheme
The government has recently abandoned its plans for a mandatory single-use cup takeback scheme. This scheme, initially proposed by DEFRA, aimed to increase recycling rates and reduce litter by obligating businesses to collect and recycle single-use cups.
The decision to scrap the scheme was primarily driven by economic considerations. An analysis conducted by DEFRA revealed that the scheme would cost the government and industry approximately £52 million. This high cost, coupled with the relatively modest projected increase in recycling rates, led to the conclusion that the scheme would not be cost-effective. Concerns on potential burdens on small businesses also influenced this decision.
The proposed scheme would have required businesses with ten or more employees to provide dedicated bins for the collection of single-use cups and to arrange for their recycling. This initiative was expected to significantly boost recycling rates to 39% and reduce the environmental impact of the estimated 2.5 to 3 billion single-use cups discarded annually in the UK.
However, Labour’s updated assessment suggests that the scheme would only increase recycling rates by 7, which was deemed insufficient to justify the costs.
In place of the mandatory scheme, DEFRA plans to support voluntary initiatives aimed at increasing the recycling of single-use cups. These voluntary schemes have had some success but have not achieved widespread adoption.
Green groups urge government for nature-friendly planning reforms
Environmental organisations are urging the UK government to implement eco-friendly changes in upcoming planning reforms after research revealed that many local authorities are struggling to meet legal deadlines for biodiversity actions. The Environment Act 2021 mandates that local authorities have a “biodiversity duty” to consider actions that conserve and enhance nature. The deadline to develop these actions was 1st January 2024.
Research by Wildlife and Countryside Link (“WCL”) (available here) found that 172 local authorities in England have failed to meet these requirements or have never had the actions, policies or objectives in place. Through Freedom of Information requests to England’s 317 councils, WCL also discovered that a quarter of the local authorities that responded had met the legal requirement to consider biodiversity action. However, their objectives and policies to support this action were nearly a year overdue. Additionally, 23 councils did not respond to WCL's request.
The research also found that:
- 59% of local authorities are either missing overarching biodiversity actions or related policies and objectives, or have neither in place;
- 34% of local authorities that responded are almost a year overdue on their legal duty to consider actions for nature recovery; and
- 25% have failed to produce supporting policies or objectives.
In response, nature organizations including the RSPB, The Wildlife Trusts, Friends of the Earth, and the Woodland Trust are launching a campaign to support overstretched and under-resourced local authorities. They are calling for the government’s upcoming Planning and Infrastructure Bill to include reforms that not only minimize harm to nature but actively support wildlife recovery.
The groups are calling for more support from Westminster to help local authorities meet key UK nature recovery targets by 2030. They emphasise that integrating nature into the planning system would create healthier neighbourhoods, reduce NHS costs, provide cleaner air and water, and enhance climate resilience.
Tony Juniper, chair of Natural England, emphasized the need for a joined-up approach that facilitates development while promoting nature recovery. He also went on to say, “We are working closely with government towards a refreshed approach that delivers more for nature, while enabling the homes and infrastructure we need.”
Festive wishes from the Environment team
As the festive season approaches, we want to extend our heartfelt gratitude to you for tuning into our environmental news updates throughout the year and we wish you a joyful holiday season.
Thank you for being part of our community. We look forward to bringing you more important environmental news and updates in the coming year.
Happy Holidays and a Wonderful New Year!
