Sustainable development—definition and application at UK level — practice note

LexisNexis Legal & Professional, LexisNexis UK, LexisPSL, Environment, 17 July 2017

Produced in partnership with CLT Envirolaw

Defining sustainable development—the background

UK mechanisms touching on sustainable development are generally based on, and have as their overarching objective, some variation of the so-called “Brundtland definition”. These mechanisms also widely reference the three interconnected ‘pillars’ of sustainable development, also known as the ‘triple bottom line’ of sustainable development.

The Brundtland definition and the ‘Three Pillars’ concept

The Brundtland Report, as the report entitled Our Common Future is widely referred to, defines sustainable development as, "Development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It (sustainable development) contains within it two key concepts:

  • the concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and
  • the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs."

References:

Bruntland Report

The United Nations (UN) General Assembly endorsed the Brundtland definition in Resolution 42/187.

The United Nations 2005 World Summit Outcome Document refers to the 'interdependent and mutually reinforcing pillars' of sustainable development, which are:

  • economic development
  • social development, and
  • environmental protection

See Practice Note Sustainable development—definition and application at international level

Sustainable development as a policy objective

The UK has reiterated its commitment to sustainable development for two decades and developed its own understanding of the concept in various National Sustainable Development Strategies. As is the case with the definition, the UK-wide strategy has been a continuous work in progress.

The national sustainable development strategy (SDS) establishes a conceptual framework for achieving a sustainable UK.

Timeline

The first SDS was devised in 1994 and looked at sustainable development as a trade-off between opposing economic and environmental objectives. This overlooked the social pillar of sustainable development.

The 1999 strategy, entitled A better Quality of Life—A Strategy for Sustainable Development for the United Kingdom, summed up sustainable development as 'a better quality of life for everyone, now and for generations to come'.

In 2005 the UK government launched a new strategy entitled Securing the Future—The UK Strategy for Sustainable Development. It endorsed the ‘Guiding Principles’ outlined in the Shared Framework (see below).

Guiding principles

The Shared Framework was developed jointly by the UK government and the devolved administrations in 2005. It set out the five ‘guiding principles’ of sustainable development:

  • living within the planet’s environmental limits
  • ensuring a strong, healthy and just society
  • achieving a sustainable economy
  • promoting good governance, and
  • using sound science responsibly

Mainstreaming sustainable development

In 2011 the Government published its vision on Mainstreaming Sustainable Development. This latest SDS maintained the Guiding Principles and has developed them further.

Mainstreaming sustainable development would require renewed and more robust efforts in a number of areas, such as:

  • national and international sustainability
  • transparency and public accountability
  • operations and procurement requirements
  • protecting the natural environment
  • fairness and improved wellbeing

The practical measures listed by the Government are as follows:

  • ministerial leadership and oversight
  • leading by example
  • embedding sustainable development in Government policy
  • transparency and independent scrutiny

The devolved administrations

Scotland, Wales, and Northern Ireland have all issued their own sustainable development strategies which are in accordance with the Shared Framework from 2005.

Mechanisms for implementation

The lack of an authoritative and binding definition has been the cause of much uncertainty, particularly in relation to:

  • the precise boundaries of the concept
  • its role in decision-making, and
  • how to give it effect and make it operable

This means the UK Government can declare a commitment to sustainable development whilst being selective in relation to the values it adheres to and adequately implements.

The real impact of the national SDS depends on the extent to which:

  • consistent political leadership exists, and
  • sustainable development is made a priority and given proper effect

Institutional & policy integration

One mechanism to implement sustainable development is through the integration of sustainable development objectives into policy, and the creation of institutions which oversee its integration. This includes, but is not limited to:

  • the development of an action plan
  • civil service training
  • monitoring of progress
  • institutional reorganisation
  • clear indication of consequences of failure

The UK Government has demonstrated relative success in embedding sustainability from an operational perspective and has also undergone some cross-departmental organisational reform to assist it in meeting its sustainable development objectives. For instance:

  • setting increasingly ambitious procurement targets has been high on the ‘Greening Government’ agenda
  • the Department of Energy and Climate Change (DECC) was set up in 2008 to take over functions related to energy policy, reconciling energy sector regulation with climate change mitigation. On 14 July 2016, DECC, was merged with the Department for Business, Innovation and Skills, to form the new Department for Business, Energy and Industrial Strategy (BEIS)

This is little compared to efforts made by the Scottish Government to institutionalise sustainable development as part of its five core strategies.

Moreover, there has been less success in embedding sustainable development into policy, as well as less guidance and leadership on how to do so.

Since the most recent SDS was launched, an important example of an attempt to embed sustainable development in policy has been the National Planning Policy Framework (NPPF). Another major institutional development (or setback) has been the decision to close down of the Sustainable Development Commission (SDC).

References:

National Planning Policy Framework

Presumption in favour of sustainable development

The NPPF published in 2012 attracted a lot of criticism during its drafting stages for being skewed too far in favour of the economic pillar of sustainable development, focusing more on the development and less on the sustainable. For example, the National Trust complained of the lack of protection being afforded to the Green Belt.

References:

Presumption in favour of sustainable development

During the Committee stage several recommendations were made, including adjusting the definition.

The final NPPF, fully effective from March 2013, established a presumption in favour of sustainable development and intends to reintroduce more balance between the three pillars of sustainable development.

The policy draws on the Brundtland definition and the 5 Guiding Principles from the Shared Framework. It outlines a three-pronged role for planners and decision-takers: an economic, an environmental, and a social role.

In theory, the presumption should be seen as a 'golden thread running through both plan-making and decision-taking'. For the first time, there is the potential to challenge developments which cannot be said to be 'living within the planet's needs' on policy grounds. However, there are both exceptions to the rule and limitations, such as when the presumption is engaged. Moreover, in practice, there may be situations where development cannot fulfil the three above-mentioned roles.

The abolition of the SDC

The SDC was set up in 2000 as the UK Government's independent adviser on sustainable development and carried out a range of functions.

In 2011 the SDC was abolished as part of the Government’s public spending reforms. This decision places doubt on the extent to which sustainable development is a genuine priority for the Government given the agency’s vital role in helping Government to achieve its sustainable development objectives.

In 2011 the Environmental Audit Select Committee recommended the creation of a new Minister for Sustainable Development. There has been no further action taken on this to date.

Sustainable Development Indicator (SDI) sets

A more practical tool to assist with the implementation of sustainable development is the adoption of an SDI set.

SDIs are a mechanism by which to measure (or at least an attempt to measure) progress towards the policy goal of sustainable development.

Defra—SDIs 2013 The most recently adopted UK-wide SDI set was published in 2013 by Defra.

See Practice Note Sustainability indicators

Legislation

A final means of implementing sustainable development is through ‘hard requirements’ laid out in legislation.

Sustainable development has not achieved the status of a legal principle. However, it is increasingly appearing in legislation across the UK, and emerges in a variety of legal forms such as duties, objectives and procedural requirements.

Sustainable development as an objective or duty in law

One of the earliest references to sustainable development was in the Environment Act 1995, which touches on the 'objective of sustainable development' throughout.

Legal obligations, such as a duty imposed on a particular agency or Minister, can vary in strength. All use mandatory language but it places a different onus on the subject when they must merely direct their attention to the concept and bear it in mind when taking decisions versus a duty to achieve sustainable development. Ofwat is one example of a regulatory authority under a statutory duty to contribute to the achievement of sustainable development since 2005.

References:

The Water Services Regulation Authority

The contrast between a weak and strong notion of sustainable development is evident when considering how sustainable development is featured in different pieces of legislation.

The Clean Neighbourhoods and Environment Act 2005 (c 6) adopts a weak notion, stating that the subject “must have regard to national policies…relating to sustainable development”. Contrastingly, the Climate Change Act 1998 (c 27) (CCA 2008) has stronger provisions, establishing that the subject 'must act in exercising its functions in a way that it considers is most sustainable'. However, even the harder obligations allow for discretion.

Policy context is also very important in shaping how discretion might be used and the extent to which a rule will assist in implementing sustainable development.

Procedural requirements

Legislators are attaching procedural requirements to the principle of sustainable development. This might include obligations to produce, or follow:

  • guidance
  • regulations or directions
  • strategies, or
  • reports

For example, CCA 2008, s 83 requires the government to publish guidance assisting organisations to measure and report their greenhouse gas (GHG) emissions, whilst CCA 2008, s 84(1) establishes that 'The Secretary of State must:

  • review the contribution that reporting on greenhouse gas emissions may make to the achievement of the objectives of Her Majesty's Government in the United Kingdom in relation to climate change, and
  • lay a report before Parliament setting out the conclusions of that review.'

Alternatively, there may be requirements regarding notice, audit or publicity.

Upcoming legislation

Sustainable development is increasingly touched upon in legislation. The intensity of obligations is also increasing with stronger focus on the obligation to adopt a long term view as opposed to short term planning and investment. Two examples currently in the pipeline are the Water Bill and the Future Generations (Wales) Bill.

Water bill 2013-14

Currently undergoing the UK parliamentary process is the Water Bill. This legislative initiative comes under the policy, Reforming the water industry to increase competition and protect the environment. In part, this Bill is intended to give statutory footing to the Government’s guidance to Ofwat on sustainable development in the Strategic Policy Statement. It will impose a new overarching resilience duty on Ofwat to supplement the existing sustainable development duty.

References:

Water Bill

Water Bill explanatory notes

The new primary duty of resilience will require Ofwat to:

  • secure the long-term resilience of the systems (including the natural systems) on which our essential water and sewerage services rely
  • promote action to respond effectively to pressures on the environment (including climate change), population growth and changes in behaviour
  • ensure long-term planning and investment; and
  • promote measures to manage water sustainably and reduce demand so as to reduce pressure on water resources

Future generations (Wales) bill

The Future Generations (Wales) Bill, previously the Sustainable Development Bill, will likely be introduced in summer 2014 to the National Assembly for Wales by the First Minister. This piece of legislation is intended to help tackle the generational challenges Wales faces in a more joined up and integrated way. It seeks to ensure Welsh public services make key decisions with the long term wellbeing of Wales in mind.

References:

Future Generations Bill

Enforceability and the courts

Sustainable development is not an enforceable legal principle. However, courts have demonstrated some willingness to accept sustainable development as a material consideration in decisions.

The legal significance of existing provisions is vague. No obligations relating to sustainable development generate criminal or administrative offences. Although misapplied funding for sustainable development projects could be enforced under criminal law, this has not happened.

Assuming a court is willing to apply principles of sustainable development to a case, it is not clear what definition should be relied on given that no statute offers a binding restatement of the concept.