979: Carbon challenge to first aviation DCO fails, the Skidmore Review, and a Welsh solar project

Today’s entry reports on the dismissal of the judicial review of the Manston Airport DCO, and the Net Zero Review from Chris Skidmore MP.

Lift off

We advised on the Manston Airport DCO which was made, following a re-determination, in August 2022. It was quickly followed by a legal challenge from the same individual who challenged the first making of the DCO.

The High Court has now refused permission for that challenge to proceed on the papers (meaning that a challenge could be opened up again in open court). Mr Justice Lane’s judgment deals with the three grounds swiftly. A few interesting points to note from his judgment are as follows. First, relating to carbon, the claimant sought to argue that there was a breach of the duty under the Climate Change Act to ensure that carbon reduction targets were met by 2050. Lane J gives short shrift to such an argument, noting that:

There is nothing in that judgment which prevents the defendant from relying on measures outside the planning system in order to inform his conclusion on whether the proposed development would materially affect the attainment of the sixth carbon budget… The CCA targets apply across many more sectors than merely aviation. The claimant cannot point to anything which arguably shows consenting to the proposed development would result in a breach of the duty under section 1 of the CCA.

This appears to be a restatement of the view taken by the Secretary of State across a number of decisions, as well as the High Court and Court of Appeal in the Drax legislation. You can see the background to those decisions and cases in a piece which my colleague Tom McNamara and I drafted, here as well as an update from Tom, here.

Second, there is a useful confirmation that the Making Best Use policy (ie, the aviation policy that airports should make best use of their existing runways) ‘does not require an assessment of need’ for development, but nor does it ‘preclude consideration of that issue’. On the question of need, the Secretary of State was entitled to consider qualitative as well as quantitative evidence. Lane J confirms that ‘need does not necessarily equate to quantitative need’.

Third, an argument that there was procedural unfairness in relation to a report published was also considered wholly unarguable on that basis that there was no requirement to offer an express invitation to comment on the report, but in any event because it was on the PINs website, the claimant could have commented should they wished.

Finally, it’s worth noting that the claimant attempted to submit a further response to the Secretary of State’s response to their grounds but Lane J rebukes the claimant for doing so because they had failed to make an application for that information to be considered.

The Skidmore Review and the need for revolution(s)

Chris Skidmore MP published his much-awaited 340 page ‘Independent Review of Net Zero’ last week. The ‘too long, didn’t read’ summary is that we aren’t doing enough to reach Net Zero, and that we need to act ‘quickly and decisively’. The Skidmore report is quite wide-ranging and includes setting up an Office for Net Zero Delivery. Skidmore says that ‘infrastructure is key’ but ‘the planning system is undermining net zero’. His main recommendation in our planning world is, in short, ‘reforming our approach to planning, streamlining processes and, where locally supported, unleashing solar and developing onshore wind.’

I am slightly bemused by the fact that – as set out below – there is a desire to streamline planning and provide robust and strong policy support for energy infrastructure, but there is only one reference to National Policy Statements. By contrast, there are various references to the NPPF and a specific recommendation to amend the NPPF to include references to Net Zero. I am not sure that focus on local planning is compatible with the scale of ambition rightly reflected in the Review.

What are the other specific recommendations?

On nuclear, the review recommends expediting the establishment of Great British Nuclear (which according to the Times is being held up by wrangling over funding), and ensuring that there is a clear siting strategy in place ‘by 2024’. This is what the review calls a ‘no regrets’ option (which, depending on your age, is an Edith Piaf, Robbie Williams or Dappy song). If anything, both should be established much sooner than this – particularly given there are projects proceeding as we speak. I have a forthcoming piece coming out on the delivery of nuclear projects, so watch out for that. It’s worth noting in the meantime that the French are accelerating their planning processes and enabling a programmatic approach to the delivery of nuclear projects – something for us to look on with envy.

On solar, the report notes the ‘need the for full-scale deployment of solar, including through a ‘rooftop revolution’ that removes the existing constraints and barriers to solar panel deployment across residential and commercial buildings’. One specific recommendation in this context is that ‘there should be no planning permission required to install domestic solar or commercial solar on the rooftops of buildings’ – how would this be implemented? The report doesn’t explain, but it could be through an amendment to the Town and Country Planning Act 1990, or through some the measures we noted in this post.

On onshore wind, there is a call for another ‘revolution’ (incidentally, the word ‘revolution’ is used 7 times in the Review, which compares with 13 references to ‘revolution’ in Lenin’s ‘What is to be done?’, though the latter is half the length). The onshore wind revolution is vague, though the specific recommendations appear to be uniting (and setting up a taskforce) and free ourselves from shackles (of planning).

In relation to local planning, it recommends giving local authorities the ability to exceed national policy standards requiring development to be net zero compliant. The report cites the difficulty faced by West Oxfordshire District Council in their plans for the Salt Cross Garden Village wherein the Inspectorate found that a net zero policy was not ‘consistent with national policy or justified’ and the plan was modified as a result. This is an interesting recommendation in the context of the proposals for National Development Management Policies in the Levelling-up and Regeneration Bill to take precedence over local plans. The Skidmore Review also says more should be made of local community benefits.

The sun also rises

Meanwhile, it’s worth noting the Welsh ‘Development of National Significance’ decision on the Penpergwm Solar Farm (in case you’re interested, that’s Welsh for ‘peppermint’). The 32MW solar proposal was granted consent notwithstanding the loss of 16.8ha of Best and Most Versatile Agricultural Land (BMV). We previously commented on the Welsh-specific aversion to the loss of agricultural land, and this follows a prominent solar refusal of a Welsh solar project.

Is this a reversal of that trend? I don’t think we can go that far for two reasons. The decision letter records the Inspector’s view that the contribution to Net Zero formed the key component of establishing the ‘overriding need’ which justified the impact on BMV. By contrast, the Welsh Ministers’ view is that whilst ‘there is a need to increase the generation of renewable energy in Wales… this in itself does not comprise ‘overriding need [required by Welsh planning policy]’.

Second, this proposal initially started out as a 45MW development, was reduced to 37MW and following further representations about the impact on BMV, this was reduced further to 32MW. Note food security does not seem to be a good reason for protecting BMV given the compatibility of solar development with agricultural land use. Maybe Chris Skidmore is right about local planning policies often standing in the way of Net Zero after all?

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