The Department for Energy Security and Net Zero is consulting on barriers to community energy projects in England, being solar panels, wind farms, hydro power, rural heat networks, electric vehicle charging points and car clubs, and fuel poverty alleviation schemes. The National Association of Local Councils (NALC) has responded.  Its key messages include:-

• In general, Government should bring planning laws and guidance in line with Government policy, by making it conditional for energy saving and carbon neutral measures to be included in all relevant planning applications and building control matters;
• Improvements to the current regime of Government support and investment in electricity transmission infrastructure could be made by facilitating action by communities to undertake small-scale projects themselves;
• Local Councils should be given a more-specific power to operate community energy projects than the current power in Section 20 of the Climate Change and Sustainable Energy Act 2006 (the 2006 Act).

What the NALC says in response to the consultation questions includes that lack of funding, lack of technical expertise and a lack of political support from their principal authority are the main barriers (financial and non-financial), preventing the establishment, development and scaling of community energy projects in their areas, and that this reinforces the need for the Government to make it much easier for local Councils to apply for specific funding to deliver community energy projects, to source specific technical guidance for them (and in partnership with other community groups), as well as removing the unsustainable mechanism of local councils having to apply for any such funding at all through their principal authority, and that a lack of access to direct funding to deliver community energy projects for local Councils, and an ongoing need for local Councils to be given a more-specific power to operate community energy projects in their areas, remain the main two barriers.

The 2006 Act makes provision about the reduction of emissions of greenhouse gases, the alleviation of fuel poverty, the promotion of microgeneration and the use of heat produced from renewable sources, compliance with building regulations relating to emissions of greenhouse gases and the use of fuel and power, the renewables obligation relating to the generation and supply of electricity and the adjustment of transmission charges for electricity; and for connected purposes.  The principal purpose of the Act is by Section 1(1) to enhance the UK’s contribution to combating climate change. In performing functions under the 2006 Act, the relevant persons and bodies (including any public authority) shall have regard to the principal purpose set out in subsection (1), the desirability of alleviating fuel poverty, and the desirability of securing a diverse and viable long-term energy supply.

Section 20 of the 2006 Act gives parish councils and community councils power to “encourage or promote” local energy saving measures.

The 2006 Act must be considered in conjunction in particular with the Energy Act 2004 and the Climate Change Act 2008.  There is separate legislation in Wales, notably the Environment (Wales) Act 2016 and Regulations thereunder.

Before planning permission can be granted for a development project which is likely to have significant impact on the environment legislation requires an EIA to be carried out.  In R (Finch) v Surrey County Council (2024) UKSC 20 the applicable legislation was contained in the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, which requires an EIA to identify, describe and assess the likely “direct and indirect significant effects” of the project on the environment, including (among other factors) the impact on climate (for example, the nature and magnitude of greenhouse gas emissions).  The process of assessment must include public consultation.  The legislation does not prevent the planning authority from giving consent for a project that is likely to cause significant harm to the environment; but it requires the authority to reach a reasoned conclusion on the environmental impact and to take this conclusion into account in making its decision.

In this case a developer applied to Surrey County Council for planning permission to expand oil production from a well site at Horse Hill near Horley in Surrey.  The proposed project would involve the extraction of oil from six wells over a period of 20 years. The project comes within a category for which an EIA is compulsory (“Extraction of petroleum … for commercial purposes where the amount extracted exceeds 500 tonnes/day”).

The developer argued that, as regards the impact of the project on climate, the scope of the EIA should be confined to the direct releases of greenhouse gases from within the well site boundary during the lifetime of the project; and that the EIA need not include an assessment of the greenhouse gas emissions that would occur when the oil extract from the wells was ultimately burnt elsewhere as fuel. The council accepted this approach.  Its decision to grant planning permission for the project was therefore made without assessing or taking into account the emissions that will occur upon combustion of the oil produced.

The claimant, a local resident, applied for judicial review of the council’s decision.  She argued that the decision was unlawful because the EIA was required, but did not, include an assessment of the combustion emissions. By a three-to-two majority, the Supreme Court holds that the council’s decision was unlawful because the emissions that will occur when the oil produced is burnt as fuel are within the scope of the EIA required by law.

It is an agreed fact that, if the project goes ahead, it is not merely likely but inevitable that the oil produced from the well site will be refined and, as an end product, will eventually undergo combustion, and that combustion will produce greenhouse gas emissions.  It is not disputed that these emissions will have a significant impact on climate.  It is agreed that the amount of these emissions can be estimated using an established methodology; indeed, the council has provided such an estimate as part of its evidence in this case.  The issue is whether the combustion emissions constitute “direct or indirect … effects of the project” within the meaning of the EIA Direction and  2017 Regulations. If they are, they must be assessed as part of the EIA.

The Supreme Court is unanimous in rejecting the view that this question requires an evaluative judgment about whether there is a sufficient causal connection between the extraction of the oil and its eventual combustion, on which different planning authorities could reasonably take opposite views.  It is unreasonable to interpret the EIA Directive in a way that treats inconsistent answers to the question whether the combustion emissions are “effects of the project” as equally valid.

The majority of the Court considers this question to be one of causation to which, on the agreed facts, only one answer can reasonably be given. The emissions that will occur on combustion of the oil produced are “effects of the project” because it is known with certainty that, if the project goes ahead, all the oil extracted from the ground will inevitably be burnt thereby releasing greenhouse gases into the earth’s atmosphere in a quantity which can readily be estimated.

The EIA Directive does not impose any geographical limit on the scope of the environmental effects of a project that must be assessed. The council was therefore wrong to confine the EIA in this case to emissions expected to occur at the project site.  It is in the very nature of “indirect” effects that the may occur away from the source.  Moreover, the impact of greenhouse gas emissions on climate does not depend on where the release occurs.  The process of refining crude oil does not alter its basic nature or intended use and cannot reasonably be regarded as breaking the causal connection between the extraction of the oil and its subsequent combustion. Raw materials such as steel can be put to many possible uses, and the view might reasonably be taken that no meaningful assessment or estimate can be made of what emissions will ultimately result from its use.  Oil is a very different commodity.  There is no element of conjecture about what will ultimately happen to the oil; refining the oil does not change it into a different type of object (unlike the incorporation of a part in a motor vehicle or aircraft); and a reasonable estimate can readily be made of the emissions that will occur upon its inevitable combustion.

An argument that national planning policy is relevant to the scope of the EIA required by the EIA Directive is also rejected. The UK’s national policy of encouraging domestic production of oil and gas is relevant to the decision of the planning authority whether to grant permission for the project. But it does not dispense with the requirement to assess the environmental impact of the project or justify limiting the scope of that assessment before the planning decision is taken. The purpose of the EIA is to ensure that, whatever the decision taken, it is taken with full knowledge and public awareness of the likely significant environmental consequences.

Consequently, the council’s failure to assess the effect on climate of the combustion of the oil that would be produced from the proposed well site means that its decision to grant planning permission for the project was unlawful.

There was a powerful dissent from Lord Sales.

In R ( WELLINGBOROUGH WALKS ACTION GROUP ) v NORTH NORTHAMPTONSHIRE COUNCIL ( 2024 ) EWHC 1225 ( Admin ) the Claimant challenged the Council’s failure to prevent a developer from felling protected trees. The Claimant sought to quash the Council’s decision that the felling was “ necessary to implement a planning permission “, and therefore within the exception in the Town and Country Planning ( Tree Preservation ) ( England ) Regulations at Regulation 14 ( a ) ( vii ) to the general rule, in Regulation 12, that consent would be required to cut down a protected tree. The Court held that the developer who had held the protected trees in preparation for the construction of an access road to a major development could not rely on the exception. Regulation 14 ( a ) ( vii ) provided an exception only where the felling was necessary for the development. The developer had not complied with a planning condition requiring it, before the access road was begun, to submit a plan identifying all existing trees and what measures would be employed to protect those that would be retained. The wording of the exception connoted nothing more nor less than the concept of it being necessary , as an immediate requirement, to undertake work to protected trees to make it possible to carry out development for which planning permission had been granted or was deemed to be granted.

The overall statutory scheme was one where Tree Preservation Orders are complementary to planning control. A key task when considering how the exception applies is to understand what was permitted by the planning permission. To the extent that what was permitted necessarily involved the loss of trees the exception will apply. To the extent that the planning permission could be carried out in a way that did not necessitate the loss of trees the exception is not available it is a key step in the analysis properly to construe the permission.

Section 285 of the Town and Country Planning Act 1990 relates to the validity of enforcement and other notices. In BARKING & DAGENHAM LBC v Aziz ( 2024 ) EWHC 1212 ( Admin ) Fordham J holds that even though an enforcement notice has been registered it is still open for a finding to be made that a defendant could not reasonably have been expected to know that the enforcement  notice had not been issued.

Where the land meets the sea, the planning control powers conferred on LPAs by TCPA 1990 extend to the foreshore, but do not extend below the mean low water mark. So held by Holgate J in R ( PARKES ) v DORSET COUNTY COUNCIL ( 2024 ) EWHC 1253 ( Admin ).

In WATHEN-FAYED v SoS and TANDRIDGE DC ( 2024 ) EWCA Civ 507 the Court of Appeal held that a proposed development would not inevitably contravene the provisions of the CEMATORIUM ACT 1902 ( the 1902 Act ). Section 2 of the 1902 Act defines “ crematorium “. It means  “ any building fitted with appliances for the purposes of burning human remains “. That is expressed to include “ everything ancillary or incidental thereto “. Section 5 of the 1902 Act prohibits construction of a crematorium nearer to any dwelling-house than 200 yards ( except with the consent of the occupier ), or within 50 yards of any public highway, or in the consecrated part of a burial ground. The proposed development comprises a crematorium with a ceremony hall, memorial areas, a garden of remembrance, and associated parking and infrastructure. The site consists of 4.5 acres of open fields.

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Section 38 ( 6 ) of the Planning and Compulsory Purchase Act 2004 requires that if regard is to be had to the Development Plan for the purposes of any determination to be made under the Planning Acts the determination must be made in accordance with the Plan, unless MATERIAL CONSIDERATIONS , including national policy as expressed in the NPPF, indicate otherwise. In MID-SUFFOLK DC v SoS ( 2024 ) EWHC 930 ( Admin ) the Judge observes, at paras 122-138 inc, that there is however no prescribed format as to the way in which the reasoning on the considerations should be set out. The question is whether Section 38 ( 6 ) has been applied as a matter of substance. Mere failure to mention factors does not mean that there was a failure to take them into account in making the decision, provided that it is apparent that the decision-maker was well aware of each of these factors and was taking them into account.

The basic question in SECRETARY OF STATE v CALDWELL ( 2024 ) EWCA Civ 467 was whether an Inspector who determined an Appeal  against an Enforcement Notice issued under SECTION 172 of TCPA 1990 misapplied the important principle in the MURFITT case and the established limitations upon that principle.. The Notice required the cessation of residential use on land and the demolition of a bungalow built upon it. The principle is that LPAs when enforcing against against a material change of use can require the removal of operational development connected to the change of use for the purpose of restoring the land to its condition before the development took place.

The Court of Appeal identified a number of points from para 39. First, the MURFITT principle must not be overstated. It must be operated within the bounds of the statutory scheme. Second, the principle does not extend to works that are more than ancillary or secondary to the change of use. Third, the principle is “ narrow “. Fourth, the principle does not support the removal of a building or other operational development that is a separate development in its own right.  Fifth, whether the principle is engaged in a particular case will always be a matter of fact and degree.

The question in R (SUFFOLK ENERGY SOLUTIONS) v SoS FOR ENERGY (2024) EWCA Civ 277 was whether the SoS acted unlawfully in dealing with a complaint by Suffolk Energy Solutions that the interested parties had “stifled” or “neutralised” the ability of landowners failing possible compulsory purchase to prevent objections to and information about a scheme of which development consent was being sought.  The issue was whether the use of “non-objections clauses” in a planning contract was legitimate.  The judicial review failed.

The Court of Appeal said, at paragraph 59:-

“…that no one can be required to give false evidence to a planning inspector or examiner.  But the question in issue is whether a party who has sold or is proposing to sell an interest in land may agree contractual obligations not to object to the grant of planning permission.”

The Court of Appeal continued:-

“61.     In our judgment, the use of non-objection clauses when a party has obtained an interest in land, or an interest in land conditional on the grant of planning permission, is permissible for two main reasons.  First, an applicant who owns land and seeks planning permission for a relevant use of that land is unlikely to object to that application.  That fact has not of itself been considered to undermine the integrity of the process for the granting of planning permission.

62. Secondly (and part of the reason why the integrity of the process for planning permission is not undermined by the fact that applicants owning land are unlikely to object to their own scheme), the planning process is inquisitorial in nature. The inquisitorial nature of the process means that it is for the decision-maker to ensure that there is sufficient information to enable an informed and lawful decision to be made on the application for planning permission … whether the effect of a non-objection clause has in fact meant that there is insufficient information to enable a planning decision to be made, or “impermissibly distorted the picture” … must always be a fact-specific inquiry.

63. …the environmental impact of a scheme which is an EIA development is addressed by the EIA Regulations.  The inquisitorial nature of the process, and the relevant statutory provisions, mean that in general, the non-objection and confidentiality clauses should not prevent the decision-maker from becoming aware of all the relevant planning and environmental considerations.  Of course, whether this is so in any individual case will always depend on the particular facts.

64. We do not consider that the answer is altered in circumstances where a developer is acquiring an interest in land, and that land, together with other land, forms part of the scheme and the non-objection clause applies to the scheme as a whole. There is only one scheme, and the developer is entitled to require a person whose land is being acquired not to object to the scheme, even if the scheme involves other land. This is for the two main reasons set out in paragraphs 61 and 62 above, though – as we have said – the fact-specific nature of the decision must always be kept in mind …”

R ( Lisle-Mainwaring ) v Kensington & Chelsea RLBC ( 2024 ) EWHC 440 ( Admin ) holds ( para 44 ) that the general principle, that applies to applications for planning permission and for approval of reserved matters, that once a valid application has been made, a LPA has a continuing duty to determine it, applies also to an application for approval required under a planning condition. Further, the fact that such an application is made before the time limit on a planning permission has expired, and is determined after it has expired, is not a good reason to disapply that principle.