Climate Change in UK Law

When making his announcement on 15 January 2009, the Secretary of State expressly requested CCC's advice as to policy. It was not for the Council to work out a new policy in the meantime. The Council would, in my judgment, have been wrong to do so. The important questions which arise call for national guidance and not speculation by a local planning authority as to the effect of a target announced for 2050.

The authority must be free to form a reasonable view of its own on the nature and amount of information required, with the specified considerations in mind. This, in our view, indicates a conventional “Wednesbury” standard of review – as adopted, for example, in Blewett. A standard more intense than that would risk the court being invited, in effect, to substitute its own view on the nature and amount of information included in environmental reports for that of the decision-maker itself.

Section 4(1) imposes on the Secretary of State a duty to set carbon budgets to cap carbon emissions in a series of five-year periods (subsection (1)(a)), and to ensure that the net United Kingdom carbon account for a budgetary period does not exceed the carbon budget (subsection (1)(b)), thus ensuring progress towards the 2050 target in the period before that year. Carbon budgets must be set with a view to meeting the target for 2050 (section 8(2)).

In October 2017, the Secretary of State published the Clean Growth Strategy, setting out the Government's policies and proposals for decarbonising the national economy, fixing policy milestones as far as 2032, describing “illustrative pathways” for spreading decarbonisation throughout the economy, but allowing the Government to respond to changes in technology in those 15 years. The Clean Growth Strategy does not prescribe one particular “pathway” in the period to 2050.

Having adopted a favourable approach to the third runway proposal in 2003, the government was entitled to maintain that general approach unless and until circumstances demanded a change of view. It is a trite proposition in administrative law that no policy can be set in stone. It must be open to reconsideration in the light of changing circumstances.

Similarly, failure to take account of material considerations is unlikely to justify intervention by the court if it can be remedied at a later stage. It would be different if the failure related to what I described in argument as a “show-stopper”: that is a policy or factual consideration which makes the proposal so obviously unacceptable that the only rational course would be to abort it altogether without further ado.

The application for planning permission did not include any development at Knapton. Paragraph 122 of the National Planning Policy Framework ("NPPF") advises planning authorities that they should focus on whether the development is an acceptable use of land, rather than on control of processes or emissions where these are subject to approval under pollution control regimes, and it should be assumed that those regimes will operate effectively.