Legal challenge launched against Oxfordshire local plan over climate impact issues

The group, Bioabundance, said South Oxfordshire District Council’s plan to build 23,550 new homes by 2035 did not address the worsening effect on climate change of these housing numbers.

Bioabundance said it was concerned about the countryside and green belt implications of the additional housing, and that the housing target in the new plan was incompatible with the council’s declaration of a climate emergency and the government’s legally binding commitments to tackle climate change. The group also claimed that councillors had unlawfully taken into account the threatened consequences of government intervention in the plan.

South Oxfordshire District Council adopted the local plan on 11 December 2020. The council’s cabinet member for planning, Anne-Marie Simpson, said there was a “very real possibility of the government removing planning powers from South Oxfordshire if the plan was not adopted”.

The proceedings are a statutory challenge to the plan, with Bioabundance’s grounds of challenge limited to those set out in section 113(3) of the Planning and Compulsory Purchase Act 2004 (PCPA). These allow groups or individuals to challenge a document before the High Court on the grounds that it is not within the appropriate power; or a procedural requirement has not been complied with.

Planning law expert Nick McDonald of Pinsent Masons, the law firm behind Out-Law, said a statutory challenge was not an opportunity for Bioabundance to revisit the substance of the plan or the housing target itself.

“It is simply an opportunity to bring to light any issues around whether the council acted within its powers, or procedural defects in the decision-making processes,” McDonald said.

Bioabundance’s fact-specific grounds of challenge include the unusual circumstances of the intervention by Robert Jenrick, minister for housing, communities and local government, into the plan’s adoption.

Jenrick imposed a temporary direction on the council to stop it from taking any decisions in relation to the plan after the council had decided, in October 2019, to withdraw the plan from inspection in favour of taking forward a new plan focusing on the climate emergency. In March 2020 Jenrick then issued a direction instructing the council to progress the plan to adoption by the end of December 2020.

McDonald said: “The case is of interest to developers and local planning authorities alike, as it is the first time that a local plan is understood to have been challenged on climate grounds. The climate ground of challenge is broadly that the plan inspector gave inadequate reasons regarding the effect of a higher housing figure on climate change and the government’s net zero emissions target.”

The inspector’s report on the plan (65 page / 460KB PDF), issued in November 2020, said the council’s declaration of climate emergency, and the issue of the relationship between human activity and climate, did not justify any reduction in the housing requirement in the plan. It said the modified plan included a number of measures designed to address climate issues effectively.

Bioabundance’s claim acknowledges that the inspector made several modifications to the plan aimed at mitigating carbon emissions, but argues that the inspector should have expressly considered whether the government’s net zero emissions target was a freestanding reason to reduce the uplift applied to the housing target.

Under the PCPA, councils are required to include climate change policies and to consider climate change guidance in their local plans.

The government has set a ‘net-zero’ policy of reducing climate change emissions to 100% lower than the 1990 baseline. This policy is given a statutory footing in section 1 of the Climate Change Act 2008, which commits the government to achieving this target by 2050.

Bioabundance claimed the inspector should have explained how the uplift to the housing target in the local plan was compatible with these statutory and policy objectives.

Planning law expert Hanna Virta of Pinsent Masons said: “While inspectors’ reasons can usually be briefly stated, Bioabundance argue that the circumstances of the case call for a higher degree of particularity in the inspector’s reasoning, because the effect of the plan on climate change was clearly a ‘principal important controversial issue’ in the plan-making process.”

McDonald said the challenge highlighted the competing factors of housing growth and climate change that the planning system needed to balance.

“The inspector, considering the council’s draft plan, specifically noted ‘there is nothing in national policy to indicate that people’s housing need should go unmet in order to mitigate the effects of human activity on climate, or that the two objectives are mutually unachievable’. The court’s decision on whether sufficient reasons were given as to how these factors were weighed together will be watched closely by local authorities and developers alike,” McDonald said.