Purpose of Report
1. The
purpose of this report is to respond to the advisory
committee’s request regarding the council’s compliance
with the Climate Change Act 2008 (amended 2019), and in particular
our approach to climate change and adaptation through planning
policies in the emerging Local Plan 2034.
Strategic Objectives
2. A number
of our strategic objectives set out in our Corporate Plan 2016-2020
and the themes set out in our emerging Corporate Plan 2020-2024
impact on plan making and how we can influence climate change.
Background
3. The
Advisory Committee 29 June and 3 August resolved, in summary, to
seek legal advice to ensure the legality of climate policies in the
emerging local plan. The Chair wrote in July that the advisory
Committee seeks an audit with legal advice on the council’s
planning policy in light of our statutory duty to reduce carbon
emissions to net zero by 2050, as required by the Climate Change
Act 2008 (amended 2019)
The current planning
system
4. It is
important to understand that the Council, as the Local Planning
Authority, is required to work within and implement the planning
acts, associated regulations and national policy, such as the
National Planning Policy Framework (NPPF).
5. The NPPF
seeks to ensure that key statute which applies to planning is
addressed through local plans and the determination of planning
applications. This explicitly includes the Climate Change Act 2008
(amended 2019).
6. An extract
from the NPPF says: ‘Plans should take a proactive
approach to mitigating and adapting to climate change, taking into
account the long-term implications for flood risk, coastal change,
water supply, biodiversity and landscapes, and the risk of
overheating from rising temperatures’ (NPPF para.149 and
footnote 48)
7. The
process of plan-making and the determining planning applications is
set out in the planning acts and in national policy, such as the
NPPF.
8. An extract
from the NPPF on plan-making says: ‘Strategic policies
should set out an overall strategy for the pattern, scale and
quality of development, and make sufficient provision for:
……d) conservation and enhancement of the natural,
built and historic environment, including landscapes and green
infrastructure, and planning measures to address climate change
mitigation and adaptation.’ (NPPF para.20)
9. Once a
Local Plan is adopted and becomes part of the Development Plan for
the district it sets out planning policies, including those
addressing climate change that need to be applied locally.
‘Planning law requires that applications for planning
permission be determined in accordance with the development plan,
unless material considerations indicate
otherwise…’ (NPPF para.47).
10. In terms of the
Advisory Committee’s belief that it is a statutory duty for
the Council to reduce carbon emissions, we need to refer to the
Climate Change Act 2008 (amended 2019) which says: ‘It is
the duty of the Secretary of State to ensure that the net UK carbon
account for the year 2050 is at least 100% lower than the 1990
baseline’(Section (1)). Thus, legislation imposes the
carbon reduction target on the Secretary of State, not the Council,
as a Local Planning Authority.
11. However, the Planning
& Compulsory Purchase Act 2004 states: ‘Development
plan documents must (taken as a whole) include policies designed to
secure that the development and use of land in the local planning
authority's area contribute to the mitigation of, and adaptation
to, climate change.’ (S.19(A)).
12. As mentioned above the
NPPF and supporting guidance (National Planning Policy Guidance -
NPPG) suggests the Council, as Local Planning Authority, has many
opportunities to integrate climate change mitigation and adaptation
objectives and policies, subject to evidence, into Local Plans. The
emerging Local Plan 2034 does this. It contains specific climate
change policies, prepared in line with the NPPF and the NPPG, such
as new policy DES11 and DES9 as proposed to be modified. The
Council’s Hearing Statement on Matter 8 explains how the plan
addresses climate change mitigation and adaptation. The main
modifications to the Local Plan (including MM69 on DES9 Promoting
Sustainable Design, MM70 on DES10 Renewable Energy, and MM71 on new
policy DES11 Carbon Reduction) are currently subject to public
consultation.
13. The Sustainability
Appraisal can be used to help shape appropriate strategies in line
with the statutory duty on climate change and ambition in the
Climate Change Act 2008. This has been done throughout the
plan-making process, including most recently through the
Sustainability Appraisal Addendum (September 2020) which assesses
the proposed Main Modifications to the local plan (including new
policy DES11 on carbon reduction).
14. The approach we take
in our local plan to address climate change is tested, scrutinised,
at Examination by an independent Inspector. The Inspector has
indicated in his Preliminary Findings letter of 28th August 2020
that he is content with the approach put forward by the Council,
however we should wait his final report following the current
Modification’s consultation..
Legal implications
15. We have sought advice
regarding the legality of the emerging planning policies and our
proposed approach in the Local Plan 2034, and our legal advisor
confirms that the approach taken in the plan is lawful. We have
attached the legal advice (Appendix 1) for the Advisory
committee.
Financial Implications
16. There are no immediate
direct financial implications arising from this report.
Risks
17. The Advisory Committee
need to be aware that officers and advisors are providing the
Council, best advice on the process and approach to planning to
help inform sound decision making.
18. There is always a risk
that a third party is not satisfied with our processes and consider
they have a case to pursue a legal challenge. In the current
circumstances officers and your expert advisor believe we are in a
strong position to defend the council’s position.
Conclusion
19. Overall, in reviewing
our plan-making and decision making in planning and the legal
advice provided, the council’s approach to climate change and
adaptation through its policies in the emerging Local Plan 2034 is
lawful.
Appendix 1
Legal Advice; Rob
Walton QC
Background Papers
Minutes of Climate
Emergency Advisory Committee
Matter 8 Written
Statement – Climate Change Mitigation - South Oxfordshire
District Council
Schedule of
Proposed Main Modifications
