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Jeremy's Blog 28th June 2024: Can Development be Unlocked

This article by Jeremy Moody first appeared in the CAAV e-Briefing of 27th June 2024

We really have to be careful what laws we write if we are not to be surprised by their effects.
Here (and indeed in the USA), a surprising judgment sees the courts get attention when they have merely pointed out what the law says.

In Finch v Surrey County Council, the Supreme Court has upheld, by 3 to 2, a judicial review of a 2019 permission for an oil well in Surrey because it had read Regulation 4(2) of the Town and County Planning (Environmental Impact Assessment) Regulations 2017:
(2) The EIA must identify, describe and assess in an appropriate manner, in light of each individual case, the direct and indirect significant effects of the proposed development on the following factors—

(c) land, soil, water, air and climate; …”.

It found that Surrey had not considered the “indirect significant effects” of the oil well (in effect, Scope 3), here argued to be the consequences for climate change as the oil produced from it was expected to be burnt. Refining did not break the causal chain. That assessment was required but the matter now returns to Surrey which could still find that the effects are not significant or are outweighed by other factors.

There is a view that legislation over the last 30 years has so tied the state down that radical or significant action can be made nearly impossible, outright or by delay and, as here, litigation. Such laws become weapons for those using court processes to promote causes or resist change. “Supply-side reform”, making business easier, is needed if we want to afford the living standards we would like – by having growth and improving our lagging productivity, also enabled by housing people.

This time, this was not home grown law or “gold plating” but simply the implementation of the then imposed words of Article 3 of the EU Directive 2011/92. Indeed, the Court went straight to the Brussels Directive and reached the same result as had a Norwegian court in a similar matter. That does mean we could now, with the necessary political will, rewrite it or recast planning guidance if we wished.

While the decision would equally allow a solar farm application to plead its beneficial indirect effects in displacing fossil fuels, 63 per cent of the 4,000 applications for wind, solar and battery projects between 2018 and 2023 have been refused, abandoned, withdrawn or seen permissions expire (Financial Times, 24th June).
If the election returns a Labour Government that then actually proves to mean its programme of driving housing development and infrastructure, it and those delivering its targets will immediately hit such issues. The six successive failed judicial review actions by Substation Action Save East Suffolk and Suffolk Energy Action Solutions show how much effort resisters can put into pouring sand into the machinery for development. Fifty years ago, the attempts to find London’s third airport failed as did Gordon Brown’s eco-towns 16 years ago.

Further, Finch saw the first intervention in a court case by the Office for Environmental Protection (OEP) building its muscles to fulfil its statutory duty and concerned for the recognition of environmental protection. That duty might now be an express challenge to the new Government’s policies.

There will, of course, be ironies. Labour votes in the House of Lords last September kept nutrient neutrality, arising from the ECJ decision in the Dutch N case, which it would now have to tackle. How might it square its emphasis on the net zero target with a major housebuilding programme? Does that increase pressure elsewhere to compensate? All the environmental targets and biodiversity net gain (except now for NSIPs) will have force. It is hard to find anything to suggest how Labour might tackle these impediments.

Further, pressure from its backbenchers with more from NIMBY seats may add to the conflict before housing and infrastructure can be achieved. While suggesting more English devolution as an answer, that seems more likely to compound the problems it will face – localism did. Meanwhile, other policies could create new friction for business operation.

Is the force for development to be irresistible or is the obstacle immovable? Is Finch the canary in the mine? It may depend on what, how many and how swiftly laws and guidance are re-written and opportunities to challenge are limited if we are to see economic growth again and house our people.

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