1019: New environmental duty, and no new data centres

Today’s entry looks at the new environmental principles duty coming into force and an interesting decision on a West London data centre.

Duty calls

The Environment Act 2021 introduced the concept of a policy statement on ‘environmental principles’ (which can be found here), and then section 19 of that Act introduces a requirement that ‘A Minister of the Crown must, when making policy, have due regard to the policy statement on environmental principles currently in effect.’ Under the duty that has come into effect this week, ministers must consider the following framework of key principles:

• The integration principle, which is the principle that environmental protection should be integrated into the making of policies.
• The prevention principle, which states that government policymakers should aim to prevent environmental harm.
• The rectification at source principle, which means that policy should address environmental damage at the source, to avoid the need to remedy its effects later.
• The polluter pays principle, which states that, where possible, the costs of environmental damage should be borne by those causing it rather than the person who suffers the effects of the resulting environmental damage or the wider community.
• The precautionary principle, which provides that where the threat of serious or irreversible environmental damage exists, a lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The legal duty to have due regard to this policy statement applies to ministers when making policy. ‘Due regard’ here means that consideration should be given to the matter, but it does not go so far as saying it must be in accordance with that policy. Policy can be broadly understood as an intended course of action adopted to achieve an objective. The duty is not designed to capture individual regulatory, planning, or licencing decisions made by ministers or authorities acting on their behalf.

Does this extend to National Policy Statements for DCOs? The short answer is yes, the government has previously said that ‘with reference to planning, the duty would apply to any policy which outlines the policy intent (for example a national policy statement or planning practice guidance). However, it would not apply where ministers are making an individual decision as a result of that national policy statement or deciding on individual planning applications.’ That latter element is welcome; a duty that extends to individual planning decisions would merely provide further dubious ground for challenging decisions that are already caught by environmental safeguards.

For my part, I’m not sure this new duty will substantively change things much. Take this description of what the government should do when considering their new duty:

‘Policymakers should take a proportionate approach in the application of the policy statement. They should balance social, economic, and environmental considerations in making policy. They should consider the potential environmental effects of a policy and any mitigating actions. They should consider this in the context of the associated costs and benefits to society of the policy’s primary objectives, as well as the financial and economic costs and benefits.’

It would take egregious cynicism to suggest that the government doesn’t already do this, but perhaps some people will sleep better at night knowing it’s now written into law.

Ven-data

The Secretary of State has refused planning permission for the West London Technology Park in Slough, which would have been the UK’s largest hyperdata centre if permitted.

The developer estimated additional required capacity in the Slough Availability Zone (SAZ) between 2022 and 2027 of around 1,460 MW to 2,000 MW (a central estimate of 1730 MW). Even the Inspector agreed that ‘there is an urgent and overwhelming need for new hyperscale data centres both in the UK and within the SAZ’. But neither the Inspector nor the Secretary of State found ‘very special circumstances’ to justify development in the Green Belt. The Secretary of State’s decision letter records (albeit not exactly in the very special circumstances context):

‘The Secretary of State has taken into account the appellant’s conclusion that there is no alternative site in the SAZ currently available for the appeal proposal and the fact that the Council agreed it had not identified any alternative sites for a hyperscale data centre (IR264). However, he has also taken into account that there are other Availability Zones within London that are not within the Green Belt (IR61) and that no analysis of sites that might be located in other Availability Zones in London has been undertaken (IR264). On this basis, he differs from the Inspector and gives moderate weight to the absence of an identified and readily available alternative site for a hyperscale data centre in the SAZ.’

The Inspector similarly gives their view that ‘It is however important to understand that the need being claimed in the SAZ is really a locational demand, rather than a locational imperative.’ This seems important, as many may consider the demand and the associated benefits sufficient to reasonably justify very special circumstances. For context, this development also provided 6.85% BNG, a new park, and around 370 new jobs. For what its worth, now that we have the ‘LURA’ (still not published), data centres could benefit from a National Development Management Policy to provide for certainty about what the Government does consider to be very special circumstances in light of the acute need for data centres.

Whilst this decision is consistent with other decisions on data centres in the Green Belt, it is quite stark to consider the contrast with DCO decisions, where very special circumstances are almost always found. That makes sense given the latter are nationally significant, but it does make me question whether the Planning Act 2008 framework might be a more reliable route for data centre developers using the section 35 route.