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Developers – are you prepared for a rise in Green Litigation?

For environmental activists, conventional campaigning continues, but increasingly it is litigation spearheaded by activists which hits the headlines. Recently even celebrities have been getting in on the act, with Feargus Sharkey, frontman of The Undertones, poised to file a judicial review on the Government’s policies in relation river protection. He criticises in particular “‘lack of planning foresight for massive housing development programmes”. As a keen fisherman, he is taking his fight against the Environment Agency to the Courts.

Numerous legal requirements which have been imposed on central and local government pertaining to the environment have resulted in environmental issues becoming a particularly fertile area for campaigners to attempt to use the law to effect change. Most businesses are well attuned with conventional litigation risks, but with ever increasing change in environmental legislation, why should Developers be prepared for environmental litigation?

Environmental Legislation is constantly moving and expanding, with well-publicised principles arising from:

  • the Climate Change Act, which sets a target to reduce greenhouse gas emissions by 80% by 2050 from 1990 levels;
  • the Planning and Compulsory Purchase Act 2004, which requires development plan documents to 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 Act 2008,which requires the Secretary of State to take account of the Government’s policy ‘relating to the mitigation of, and adaptation to, climate change’ when issuing a National Policy Statement, and provide an explanation of how this has been achieved.

On the ground, these (and other) legal requirements, together with associated policy, such as the Paris Agreement on Climate Change, have been used to challenge the National Policy Statement which paved the way for a third runway at Heathrow, aspects of the Government’s plan to build Phase 1 of HS2, and the adoption of the 2018 National Planning Policy Framework.

The effects of litigation by environmental activists have therefore been felt far and wide, with ClientEarth (an international environmental charity using the law to ‘protect people and planet’) becoming a central protagonist. They have so far won three cases against the UK government over the country’s air pollution levels, forcing ministers to draw up new plans for reducing nitrogen dioxide to within legal limits. The next target may well be local government decisions affecting the environment, in particular local planning authority approaches to developing planning policy.

The potential for legal challenges to recently adopted Local Plans on the grounds of climate change, came into focus in September 2019, when ClientEarth wrote to every local authority whose Local Plan was under review. The ClientEarth letter warned local authorities that if their Local Plan did not introduce proper climate change plans, they would violate their legal obligations to reduce greenhouse emissions at least in line with the Clime Change Act 2008. The letter gave each authority eight weeks to explain how they will set evidence-based carbon reduction targets, and threatened legal action if these targets were not met.

Of the 100 local authorities that were contacted by ClientEarth, many responded either with direct statements or by declaring a climate emergency (following Bristol’s first declaration in the summer of 2018). Preston City Council has stated that the threat of legal action from Client Earth has helped alert the council to the importance of addressing climate change through the planning process. However, it will be challenging to implement a robust response in practice as issues of viability and deliverability could be affected by sustainability measures.[1]

Local Plan-makers should be acutely aware of the requirements on them to ensure that emerging plans are compliant with environmental law. The High Court has wide powers to review and quash whole or part of a local plan document, which is a tool campaigners may well use to bring challenges on environmental grounds. Partial quashing of the local plan was recently seen in a challenge against the Leeds local plan, where the Courts found that the removal of some sites from the Greenbelt was fundamentally flawed. Leeds will have to reconsider the release of greenbelt sites. Meanwhile, in forthcoming Local Plans, it will be appropriate and necessary for developers and councils to jointly consider whether an allocation and site-specific policy will comply with the Climate Change Act’s requirements. The risk in not identifying and addressing climate change issues early in the process is of course a legal challenge being brought against a Local Plan allocation, a policy or the entire Local Plan, leading to inevitable delay for Developers. Challenges to the lawfulness of decisions and policies by way of Judicial Review have also recently been facilitated by crowd funding, a tool of the internet which has caused a huge boom in new businesses over recent years, and potentially a new boom in judicial review challenges.

The Government’s recent White Paper ‘Planning for the Future’ moots the possibility of reforming or removing Strategic Environmental Assessments and Environmental Impact Assessments as part of the drive to simplify and speed up the planning system; there is, however, no sign that the emissions target in Climate Change Act will be weakened or abandoned. Developers will therefore need to keep in mind the objective that, when it comes to climate change, their projects need to be part of the solution. Developers may also find it beneficial to become a ‘critical friend’ to Local Authorities in the local plan process, helping to critique local plans and ensuring that local plans are promoted and developed by Local Authorities in a way which is compliant. This can help to ensure the plan survives examination. This can ultimately save time for Developers promoting sites through the local plan process.

The Government has set up an independent panel to investigate the need for judicial review reform amid its concerns that the use of judicial review by some individuals and groups threatens the Government’s ability to achieve its objectives, and it remains to be seen whether the panel will recommend reforms which may curtail the ability of environmental campaigners to use the courts to achieve their aims.

Although campaign groups have achieved mixed success in bringing legal challenges, even an unsuccessful challenge can result in significant delay and cost to those involved in defending them, which will often include developers and landowners promoting the projects which are under challenge. It would seem that ClientEarth style litigation is here to stay, is increasing and Developers should be aware of, and have plans in place for this risk from the outset. Being aware of the wide array of environmental requirements prior to promoting sites and preparing planning applications could significantly prevent delays and indeed costs.