Government finds fracking to be incompatible with Net Zero

 I thought that it was worth quoting from a recent refusal by the Sec of State to allow a fracking survey rig:APP/P4415/W/19/3220577

" 17.The Secretary of State notes that national shale gas policy is set out in a number of Written Ministerial Statements. Although the WMSs remain extant, he has taken into account that specific shale gas policy in the Framework was quashed in 2019 by the Talk Fracking1judgment, following which paragraph 209(a) of the 2019 version of the NPPF was withdrawn (IR7). The November 2019 BEIS WMS introduced a moratorium on the issuing of Hydraulic Fracturing Consents (HFCs) as a result of concerns about induced seismicity.   are not part of the planning system,the Secretary of State agrees with the Inspector that the 2019BEIS WMS and resulting moratorium is a material consideration in this case (IR584). He notes that the WMS states that ‘the shale gas industry should take the Government’s position into account when considering new developments’, and agrees with the Inspector that any immediate value of the development as an exploratory or ‘listening’ well would be significantly reduced unless and until the restrictions are lifted (IR585).  

18.The Secretary of State has also considered Sheffield Climate Alliance’s representations, in which they question whether the exploitation of shale gas is compatible with the 2050 commitment to reduce emissions by at least 80% (the commitment at the time of the inquiry), and whether there is a strategic need for this proposal (IR469-478). He has also considered the representations made by Dr Andy Tickell at IR462, which submits that the Talk Fracking judgement has established that proper consideration should be given to counter arguments against shale gas exploration and also refers to the UK Committee on Climate Change’s ‘Net Zero’ report.  

19.Taking the above matters into account, the Secretary of State agrees,on the basis of the evidence put forward in this case, that in this case government support for shale gas as set out in the WMSs should carry reduced weight. He has further taken into account the provisions of paragraphs 209 and211of the Framework, and overall he considers that national policy support for the benefits of shale gas exploration in this case carry moderate weight."  

In doing so, the Minister (Stuart Andrew) rejected the inspector's recommendation of approval. This decision could have wider implications where carbon emissions would be expected to exceed  the officially agreed budgets.

Planning and water pollution

I am keen for environmental NGOs and lobby groups to use the planning system as best they can and I tracked the recent way in which water pollution has impacted on plan-making and decision-taking for a group of bioregionalists that I thought could be of wider interest.

Nutrient Pollution

This is a note relating to the issue of nutrient pollution is impacting the supply of new housing through the planning system.  Some text has been copied from the Planner and  Local Government Lawyer

Appeal decisions

An inspector has dismissed appeals for two homes in Shipdham, Norfolk, after ruling that wastewater from the dwellings could pollute nearby habitat sites. APP/F2605/W/21/3271209

The appellant sought outline permission to build a two-storey, two-bedroom detached house (appeal A) and full permission for a three-bedroom house (appeal B).  Breckland Council had opposed the development, citing as concerns the impact on habitat sites, harm to the area’s appearance, highway safety and unsuitable living conditions. 

Inspector M Woodward observed that the nearby River Wensum Special Area of Conservation, which was included in Natural England advice about the effects of nutrient pollution from wastewater on habitat sites. The residential nature of the proposals would mean that they would generate waste water. The appellant indicated that the houses would be connected to the mains sewer, but Woodward was concerned that it could not be demonstrated that the waste water would not enter a sensitive site, after undergoing effluent treatment.

No specific amount of phosphorus produced by the proposals was calculated, meaning that the inspector was not satisfied that the development would achieve nutrient neutrality. The appellant did not propose any mitigation, leaving the inspector unable to deduce that the development would not affect nutrient levels in nearby habitat sites.

The inspector had dismissed the issues surrounding highway safety, impact on the surrounding area, and living conditions. However, the concerns about nutrient pollution in habitat sites had not been resolved, which he felt outweighed the other settled issues. The appeals were both dismissed.

An inspector has refused permission for two bungalows in Blackfield, in New Forest District after the appellant failed to agree to conditions limiting the impact of the development on nearby nutrient-sensitive sites. Ref APP/B1740/W/21/3284016 

The council had opposed the proposals, citing the development’s proximity to European sites, impact on local character and appearance, and the living conditions of neighbouring residents as issues. 

The Inspector addressed the development’s impact on European sites including the Solent and Southampton Water SPA and Ramsar sites, Solent and Isle of Wight Lagoons SAC, and Solent Maritime SAC (the nutrient-sensitive sites). Webb noted that the issue of nutrients had not been addressed, with no mitigation measures proposed to totally eliminate the production of wastewater. 

The council had suggested that a negatively worded ‘Grampian’ style condition could be imposed, which would limit development beginning until an appropriate obligation is agreed. However, the inspector judged that a Grampian condition would be inappropriate in this case, as Webb had “no clear indication of what form mitigation would take”. Webb concluded that as measures to secure nutrient neutrality had not been secured, there could be no guarantee that the nutrient-sensitive sites would not be harmed. 

Furthermore, Webb observed that measures to mitigate the impact of the development on European sites in terms of recreation had not been finalised. A Unilateral Undertaking providing financial contributions toward natural green spaces had been signed but not completed, and Webb concluded that this meant the matter had not been properly addressed. 

Despite concluding that the proposal would not harm living conditions, or the local area’s appearance, Webb felt that the potential impact on the nutrient-sensitive sites was unacceptable. Both appeals were dismissed.

The refusal of permission for these two relatively minor developments that would have an undetectable impact on the local water environment, with no other planning objections show just how sensitive the issue of nutrient pollution has become.  

In response, a group of developers has appointed a leading planning and environmental barrister to advise on how to respond to a ruling by Natural England (NE) that threatens to stop house building in parts of West Sussex.  The dispute concerns the impact of water extraction to serve new homes on the habitat of a rare type of snail.

Last year NE said that excess abstraction of water in parts of the Chichester, Crawley and Horsham districts endangered the ramshorn snail and any new developments would have to demonstrate ‘neutrality’ - that they did not increase demand for water.  This is often achieved by measures such as installing showers rather than baths and ‘greywater’ recycling systems, both of which are viewed by housebuilders as unpopular with potential buyers.  The issue has seen councils prevented by NE from allowing new building in the areas affected but without any relief from central government over the number of new homes they are expected to achieve.

Marcel Hoad, managing director of Fowlers Estate Agents, which leads the Houses for Homes group, said the impact of NE’s move on members was “extremely arduous – in short time we believe without development coming forward then jobs and livelihoods will be effected and of course the growing issue is the extreme shortfall of housing numbers in the area caused by the moratorium on planning – in turn this leads to less supply, increased demand and higher prices for the public”.

Jonathan Clay of Cornerstone Barristers has suggested more water could be pumped to the area from Portsmouth so preventing the snail habitat from drying out.  He also proposed new infrastructure to pump freshwater upstream to the area from a weir.  The three councils have not yet sought to take any legal action believing they have no route for redress against NE.

A Horsham spokesperson said: "It is a legal requirement that the emerging local plan demonstrates that it is water neutral.  Work is ongoing to develop a mitigation strategy for the local plans in the north west Sussex area. This is a highly complex piece of work and is being carried out in partnership, working with the other affected local authorities and with input from Natural England, the Environment Agency and Southern Water.”

Horsham said any solution might limit the amount of development that can take place, in which case it would be unable to meet housing targets set by national government.   Planning applications continue to be determined and some developments have been permitted where water neutrality has been conclusively demonstrated, but “this is a very high bar”.

Concerns have been expressed that, if water neutrality demands spread, they could lead to local plans being disrupted, since development would become concentrated in those parts of local authority areas unaffected by NE’s rulings, even if these were not designated for development in plans.

Growing fears over river pollution in the UK led the Environmental Audit Committee (EAC) to warn in January that a “chemical cocktail of sewage, agricultural waste and plastic” was impacting our rivers. A salient impact of this pollution is that it has stalled proposals for homebuilding in many areas across the UK, including Hampshire, Norfolk, Herefordshire, Powys and Somerset.

In March, Natural England advised another 42 local authorities that development in some catchments cannot go ahead unless they are nutrient neutral – meaning an estimated 120,000 homes are now being delayed across 74 local authorities because of the issue, according to the Home Builders Federation. Nutrient pollution in the River Solent has led to Somerset (which has around 11,000 homes delayed in a backlog), Hampshire (around 16,000) and Kent all since being placed under planning restrictions.

Recent analysis by the Local Government Association (LGA) suggests that more than 7 per cent of all housing planned in England (20,000 units) cannot go ahead because of the level of pollution in rivers and because of low water levels. Most pollution in rivers is already caused by agriculture and water companies and will not be cured by refusing new housing. 23 councils have more than 90 per cent of likely housebuilding areas affected by the law and nearly a third of new building in the whole of the north-east of England.  The LGA warns that this could reach 100,000 homes in the coming years as there are “few quick fixes” available.   Some have put in place nature-based schemes in an attempt to offset the environmental impact of new housing so that developments can go ahead.

Pollution needs to be dealt with at source, which predominantly originates from water treatment and farming.

Push back

Government ministers are very concerned about the impact of these restrictions on housebuilding (not the ones and twos, but the thousands being allocated in these districts) and have rejected recommendation from Environmental Audit Committee to tighten standards on pollution. The Government had previously rejected amendments to the Environment Bill that would have prevented sewage discharges to rivers.

Meanwhile the NFU are coordinating efforts to resist designations of nitrogen vulnerable zones where planning permissions are being refused on grounds of water pollution.

Summary

It is completely unclear how this issue will be resolved. The planners are grappling with the need to prepare and adopt local plans that will be found to be ‘unsound’ by inspectors if there is a conflict with NE advice.  These plans will affect the allocation of larger sites and include policies affecting smaller scale applications. Local plans will have a very strong influence over the determination of planning applications and Government wants to shorten the timetable for their preparation.

Inspectors are involved in the examination of the local plans and the determination of appeals. The advice of NE is likely to be given a lot of weight, particularly as there is a legitimate expectation that the planning system will operate in a consistent fashion on such a clearly defined issue in similar circumstances.

 

Re-distribution could lower house prices while building will not...

 For somebody who is chastised for saying that increasing supply of houses will have little impact on prices it is of some relief to have this confirmed by authoritative research. Banking on Property: What is driving the housing affordability crisis and how to solve it- Positive Money March 2022

 

"Although these supply-side arguments may sound plausible, the available evidence indicates that they fail to explain why housing has become so unaffordable for many. In contrast to perceived wisdom, since the mid 1990s – the period that has seen the most rapid house price inflation – the English housing stock has grown by 168,000 units per year on average, while growth in the number of households has averaged 147,000 per year (Mulheirn, 2019). As a result, while there were 660,000 more dwellings than households in England in 1996, this surplus grew to over 1.1 million by 2018. Similar trends are apparent in Scotland, where a surplus of 74,000 in 1996 more than doubled to 169,000 by 2017, and in Wales, where the surplus increased from 56,000 to 92,000. Even over the past three years, when criticism of a perceived housing shortage has intensified, growth in the supply of housing has continued to outpace growth in the number of households in England." Those with the money are owning more space and denying it to those without.  This is in the form of second homes other forms of under-occupancy - although a couple living in a 4 bedroom house as is now commonplace should not influence the above figures that are simply based on households and dwelling units.

The report goes on,"If the primary driver of house prices is the balance between the new supply of housing and new household formation, then the increase in surplus housing stock would imply that house prices should have fallen relative to incomes. But as outlined in section 1, in reality house prices soared during this period.".  The scale of under-occupation might not affect housing numbers but probably has an affect on the price paid for a square foot of a house/flat to buy or rent. Demand is created by the wealthy for space, whether it is to be occupied or not.

And while I am/you are here, this podcast  about the bioregional construction economy is really thought provoking
https://open.spotify.com/episode/2uP9SeTCcdLHqiuiZEclm4?si=e09fec4527cc4137

and Inside Housing have reported that giving money to social housing providers has utterly failed to kick start a programme of energy refitting. There are profound problems with the supply of labour and materials that Government will have to intervene at every level. There are over 25million dwellings in all sectors to be refitted in the next ten years and we have only experience false starts.

 

Nature recovery through bioregioning

 Those working in a planning system despised by (some)  conservative politicians and distrusted by (some of) the public can only wonder when the potential of the system to deal with the climate and ecological emergency will be realised - if ever. This quandary arises when considering the potential of planning at the bioregional scale that would imply a systems approach taking into account and integrating human and natural systems.  Bioregioning has been around for long enough to have been in and out of fashion several times as frame for understanding the countryside while the UK planning system has continued to plan for the towns their expansion and adaptation.  These two operating systems have barely if ever touched, except through my advocacy.  I have argued that bioregioning might not have a catchy title but, being essentially based on the scientific collection and analysis of data and the perusal by local people and communities, it does have the potential to build a consensus on how to plan and adapt in response to the climate and ecological emergency.

The Conservative Government (comprising politicians of varying conservatism) has issued a Nature Recovery Green Paper  seeking views on how regulation could or should apply to matters arising out of the Environment Act (eg an Office of Environment Protection) and a desire to plant trees to sequester carbon and attract votes.  Responses are invited until 11 May and the online survey is at

https://consult.defra.gov.uk/nature-recovery-green-paper/nature-recovery-green-paper/

 

The existing planning system  is based on democratic decison-making (ie by elected councillors sitting in a committee, receiving advice from professional officers, and subject to appeals to the Secretary of State all within a statutory legal framework,  having regard to case precedents and supervised by the courts.  Why would a responsible Government not build on these foundations by extending powers into changes in and affecting the countryside, rather than continue with the approach that the system is a communist plot that locks up jobs and denies profits to public spirited developers?

In advocating for the adoption of bioregioning as the guiding principle for town AND country planning it is necessary to advocate for planning per se and to point out that there might not be sufficient time to negotiate a path(s) to net zero and biodiversity net gain without a plan.

 

There are over 30 questions in the consultation (with a number encouraging references to system thinking and ecology).  In answer to the question on enforcing wildlife contraventions the principle of stewardship should apply.  A council can compulsorily purchase a listed building that is being  neglected by an owner.  This principle could apply to land where a natural asset is being harmed?  The suggestion of prioritising the natural environment above property ownership would set the sparks flying (ie Daily Mail headlines) and no landowner would be unaware of the possible consequences of  infringing the law.

Zero Carbon Homes now - not in 2025

 

On 30 March 2022 a conference was held in Bicester, “Making the future the present: delivering zero-carbon homes in Oxfordshire”.  Officers and members from all the Oxfordshire councils heard how new homes could be zero carbon in both embodied and operational carbon and that there was not good reason to delay by either developers or the planning authorities.

 

As a reminder, the Planning and Compulsory Purchase Act 2004, Section 19 is up to date with all changes known to be in force on or before 31 March 2022.

19. Preparation of local development documents

 

(1)[F1Development plan documents] must be prepared in accordance with the local development scheme.

 

[F2(1A)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.]

 

and the,

 

Planning and Energy Act 2008, Section 1 is up to date with all changes known to be in force on or before 31 March 2022.

 

1. Energy policies

 

(1)A local planning authority in England may in their development plan documents, [F1a [F2corporate joint committee] may in their strategic development plan,] and a local planning authority in Wales may in their local development plan, include policies imposing reasonable requirements for—

 

(a)a proportion of energy used in development in their area to be energy from renewable sources in the locality of the development;

 

(b)a proportion of energy used in development in their area to be low carbon energy from sources in the locality of the development;

 

(c)development in their area to comply with energy efficiency standards that exceed the energy requirements of building regulations.

 

The speaker from Warwick and Stratford District Councils that are producing a Development Plan Document by 2023 (why not an SPD in 2022?) that is strong on operational carbon but less so on embodied carbon, cited the Planning and Energy Act but not the much stronger Planning and Compulsory Purchase Act; eg the first says “may” and the second says “must”.

 

The officer in charge of the Oxfordshire 2050 was asked about the issue of viability appearing in the otherwise excellent policy on zero carbon building, saying that this made it NPPF compliant as an indication of “soundness”. This is a serious misunderstanding of both the NPPF and s38(6),  that applications will be determined in accordance with the development plan unless material considerations indicate otherwise.  The 2018 revisions to the NPPF were intended to avoid arguments being made about viability at application/appeal stages by requiring the likely costs associated with developments to be clearly elucidated in local/development plans.  In this case the achievement of net zero in embodied and operational carbon is the obvious requirement.  Any questions about viability could be raised as an “other material consideration” had there been, for example some material change in circumstances since the relevant policy was adopted and/or the site was purchased. The County would be undermining this simple process were the issue of viability inserted as part of the policy itself; the wriggle room being part of the development plan on which land purchases would be based and not an other material consideration to be introduced down the line. This was explained to the planning officer who said that the policy was not yet agreed or adopted.

 

On another subject there seems to be a level of agreement that zero carbon might add between 6% and 10% to the build costs the higher figure would apply if generation was added to insulation and airtightness (although heating systems  might cost less in very efficient buildings). And build costs are only part of the sales price.  The Communities position that no regulation of embodied carbon is desirable due to there being no agreed methodology (see Future Buildings Standard;  zero carbon readiness and delay to 2025 ) could soon have to change as the UK Green Buildings Council (and LETI) have come to some clear and generally agreed conclusions on this complex issue.

Well done to Hereford Council

The  adoption by  Hereford Council of Passivhous Plus for its own development s but with an eye to wider impacts (ie on the private sector builders) deserves to be widely known. 

https://www.passivhaustrust.org.uk/news/detail/?nId=1060

 

It is worth highlighting the recognition of the impact of construction carbon and how it will be addressed  

" Low embodied carbon

Low embodied-carbon construction is recommended in the HFH policy, aligned with LETI and RIBA 2030 targets. To achieve true net zero, residual embodied carbon emissions from the new homes will be offset through a parallel programme of retrofitting local, existing homes to Passivhaus EnerPHit or AECB standards. 

 

The Herefordshire Future Homes standard is a great example of a triple-win policy – it’s good for people, the planet, and the economy!  These new homes will be warm, cosy and cheap to live in; they’re good for the climate and for nature; and they will create new high-skill construction jobs.  At a time when we’re worrying about climate change and about increasing fuel bills, these council houses are showing what all new homes could and should be like."

Councillor Ellie Chowns, Cabinet member for Environment & Economy, Herefordshire Council

In addition, all sites should have a One Planet Living Action Plan describing how exemplary environmental practice is included across ten principles, including ecology, water, green travel, and zero carbon. This can be found at https://www.bioregional.com/one-planet-living/

 

Wider impact

Herefordshire Council hopes that the HFH policy will 'help to raise building standards of private sector and other local housing providers. Clear, consistent and ambitious HFH building standards from the outset will optimise building efficiency, minimise design and construction costs, and give confidence for local industry capacity-building.'

 

The previous blog post described 'progress' as muddled.  To find Hereford Council leading the way reinforces the view that Government have decided to leave the job of meeting carbon budgets and targets to local councils while Mr Gove ponders on what levelling up might mean? (in electoral terms).  He has been seen flushing the planning white paper down the pan and hopefully that is not just a rumour.

Muddling towards zero carbon

Given the consensus that there needs to be significant progress towards (net) zero emissions from housing and transport if the transition is to be negotiated without severe social disruption the disarray in Government is both puzzling and concerning.  Having committed to a Planning Bill and revisions to the NPPF it is too much to hope that the current hiatus will last, but none of the suggested changes to the current legal and policy framework would make the transition any faster or more certain. Quite the opposite.  If, for instance, the Government confirm 2025 as the date for zero carbon housing, a million more houses will be built that would require retrofitting to add to the 20million+ that are waiting to be upgraded.  Meanwhile the industry might be coming to its senses and responding to consumer demand for houses that can be heated with lower energy bills.

In Abingdon we have one volume builder installing air source heat pumps and solar PV on houses with limited construction carbon, and EV charge points - all before being required to do so.  A neighbouring developer will find it difficult to build to a lesser standard.  Another developer (building to a carbon negative standard in construction and operational carbon) has come to an arrangement with Gridserve to provide EVs for the car club for its residents, setting and example that other developers might find hard to resist, even it wanted to. Hiyacar (https://www.hiyacar.co.uk/), can make it really simple to make car sharing a step towards decarbonising transport. Fortunately these market pressures (and even corporate responsibility?) can raise standards even where adopted policies, building regulations and conditions on outline permissions are out of date and behind the zero carbon curve.

Also in Abingdon we have examples of road schemes inherited from another era - one where carbon reductions were not the paramount objective.  The combination of 'working-from-home', active travel, 15 minute neighbourhoods, electrification (and automation?) of road transport, avoidance of construction carbon, busing-back-better and car sharing/clubs, means that all road schemes need to be re-evaluated.  There are councils hoisted on the petard of 'infrastructure first' who should be redirecting their energy to 'accessibility first' in ways that will not depend on new construction and that will be life enhancing. There are likely to be cases where road capacity both within and between urban areas is reduced and not increased.

And in Plymouth Persimmon Homes have found it possible to build with air source heat pumps and PV that has influenced the orientation of the houses.

The resounding message from COP26 was that Government(s) are incapable to lead the way to zero carbon. It will be down to businesses and consumers to drive down carbon emissions through their choices. This will not be sufficient without Government interventions but where voters lead politicians will follow.