UK Judge: Green home design is secondary to planning rules

A green campaigner’s plans to develop eco-friendly houses powered only by the sun and wind have been thrown out by the High Court.

A judge rejected Stephen Scrivens’ latest bid for planning consent to create his blueprint for houses of the future.

Mr Scrivens’ plans to build a self-sufficient house at Longberry Farm, Bethersden, where he lives, had already been rejected by Ashford Borough Council and two government planning inspectors.

In a test case ruling, Mr Justice Collins said that, despite a European directive setting a target for all new homes to be “nearly zero-energy” by December 31, 2020, energy considerations did not constitute a “trump card” when it came to planning consent.

Scrivens is an eco-technologist who says that the UK must embrace experimental development now to prepare for the day that oil and gas run out, He argued that any near zero-energy project should count as sustainable and benefit from presumption in favour of approval in the National Planning Policy Framework (NPPF).

the judge disagreed – Consent could be refused, despite the eco-friendliness, if the proposed buildings were going to be out of place, he ruled.

The judge said: “While the future exhaustion of energy services is very important, consideration has to be given to the needs of the present as well as the future.

“Thus, for example, a development which, however autarkic [self-sufficient], is entirely out of place or would adversely affect in economic terms a neighbouring community, could properly be refused.

“Furthermore, an unsightly development in the countryside could also adversely affect future generations.”

Mr Justice Collins said that one of the inspectors had suggested one of the designs put forward would be a “striking feature in the open landscape and out of keeping with the intrinsic character of the rural area”.

He continued: “The energy credentials of a development will not by themselves justify the grant of planning permission.

“Equally, sustainable development does not give a green light to greenfield developments without considering their effect on the countryside generally and nearby communities in particular.”

The judge said that Mr Scrivens, who describes himself as an eco-technologist, had had four applications for eco-friendly houses rejected.

In his challenge to those refusals, Mr Scrivens argued that the planning inspectors failed to properly apply the National Planning Policy Framework, that there should be a presumption in favour of “sustainable development”.

He claimed that, in the light of dwindling resources and the European target, “sustainable” must be synonymous with self-sufficiency because any development which does not meet the “nearly zero-energy” test will inevitably compromise the needs of future generations.

After the ruling, Stephen Scrivens said he may consider taking his skills and knowledge abroad.

“Planning policies are all about today, not about saving for the future,” he said.

“I was trying to build houses for the future without gas, water or electricity, because in about 50 years all those supplies will have run out – that is what this case was about.

“The only chance I have is to take my skills and knowledge to another country.”

Mr Scrivens said the result of the case was what he had expected.

“The planning system is about maintaining the staus quo,” he said. “If the planners do not like the look of a house, you do not get planning permission.

“A house that only uses the sun and wind to function will never look like a normal house as it will be covered in glass.

“I may have to go to a country where they are happy with the idea of living off the grid.”

Mr Scrivens lectures regularly on topics contained in the NPPF and claims that it is currently beyond British architects and contractors to meet the target in Directive 2010/31/EU that requires all new buildings to be nearly zero-energy by 31 December 2020.

As a result, he says experimentation is required to deliver truly autarkic buildings before oil and gas run out.

He argued that, in the presumption in favour of sustainable development in the NPPF, sustainable must be taken as synonymous with autarkic, because any development which does not meet the “nearly zero-energy” test will inevitably compromise the needs of future generations.

He put forward five key points of the NPPF and the Directive that he called the “Pentalogy”: that “sustainable” means that nature’s resources must not be used faster than they can be replenished naturally; that “sustainable development” must meet the needs of the present without compromising the needs of future generations; that a “low carbon future” means when hydrocarbon reserves are exhausted in circa 2060; that the Carbon Change Act 2008 requires an 80% reduction in CO2 emissions between 1990 and 2050; and that mitigating and reacting to climate change is required by EU Treaties and Directives as well as national Acts and the NPPF.

He argued that his proposals conform to this Pentalogy and so the inspectors were wrong to refuse permission.

However, the judge ruled that energy considerations were not the only ones involved in deciding whether a development is sustainable.

While declining to define “sustainable development”, he said: “What is sustainable in any particular circumstance will depend on a number of material factors. It is, for example, clear that however compliant with energy considerations, development will not necessarily be permitted if in the Green Belt or areas of outstanding natural beauty.

“While the future exhaustion of energy services is very important, there has to be consideration given to the needs of the present as well as the future. Thus, for example, a development which, however autarkic, is entirely out of place or would adversely affect in economic terms a neighbouring community could properly be refused.

“Furthermore, an unsightly development in the countryside could also adversely affect future generations.

“I am satisfied that the Pentalogy and so energy considerations do not constitute a trump card whatever may be considered to be the harm of the proposed developments.”

He expressed sympathy for Scrivens’ concerns that the experimental nature of any near zero-energy house meant that it would always be out of character with its surrounding area.

But he added: “Future generations will be adversely affected by developments which damage the countryside.

“Thus the energy credentials of a development will not by themselves justify the grant of planning permission. Equally, sustainable development does not give a green light to greenfield developments without considering their effect on the countryside generally and nearby communities in particular.”

Scrivens v Secretary of State for Communities and Local Government Administrative (Collins J) 22 November 2013The claimant appeared in personRichard Turney (instructed by the Treasury Solicitor) for the respondent