Inspectors’ recommendations removing net zero policies from development plan document found to be unlawful

The High Court has allowed a judicial review of the recommendations made by two Examining Inspectors that significantly watered down the net zero ambition of an area action plan for a new garden village in West Oxfordshire. The claim was brought by Rights: Community: Action, a planning and environmental NGO.

Salt Cross Garden Village

Salt Cross Garden Village is a new settlement proposed in West Oxfordshire DC’s 2018 Local Plan. The Salt Cross Area Action Plan (“the AAP”) contained several policies to help achieve net zero, including the requirement to demonstrate net zero operational carbon on-site through ultra-low energy fabric specification and fossil fuel free development.

However, following the submission of the AAP to independent examination, two Examining Inspectors appointed by the Secretary of State removed most of these net zero policies on the basis of an alleged lack of soundness and justification.

The 2015 Written Ministerial Statement

In their report setting out their reasons for removing the policies, the Inspectors said that they considered the policies would be contrary to a 2015 Written Ministerial Statement and therefore unsound. The 2015 WMS provided that (emphasis added):

“For the specific issue of energy performance, local planning authorities will continue to be able to set and apply policies in their Local Plans which require compliance with energy performance standards that exceed the energy requirements of Building Regulations until commencement of amendments to the Planning and Energy Act 2008 in the Deregulation Bill. This is expected to happen alongside the introduction of zero carbon homes policy in late 2016. The Government has stated that, from then, the energy performance requirements in Building Regulations will be set at a level equivalent to the (outgoing) Code for Sustainable Homes Level 4. Until the amendment is commenced, we would expect local planning authorities to take this statement of the Government’s intention into account in applying existing policies and not set conditions with requirements above a Code level 4 equivalent.”

However, the amendments that were to be brought in by the 2015 Bill (now Act) have not been brought into effect, and the Government has now indicated that it does not intend to bring them into effect. The Building Regulations have also now been amended such that they impose higher requirements for energy efficiency than those set as a maximum in the 2015 WMS.

The challenge

The Claimant judicially reviewed the Examining Inspectors’ recommendations, arguing that that the Inspectors had misinterpreted the WMS and failed to have regard to other inspectors’ decisions that had found the WMS to be overtaken by events.

The decision

Lieven J allowed the claim, finding at [76] that “the Inspectors’ interpretation [of the WMS] neither makes sense on the words, seen in their present context, or of the mischief to which it was applying.” Accordingly, their report recommending main modifications to the AAP was legally flawed and the judicial review succeeded.

It is also notable that following the final hearing, but before judgment, the Secretary of State formally withdrew the 2015 WMS.

Wider significance

The decision is of wider significance for two reasons:

1. It confirms that a claimant does not have to wait until the adoption of a development plan document to judicially review a legally erroneous report produced by Examining Inspectors that recommends Main Modifications to the document. Both the Secretary of State and the Interested Party argued that the challenge in this case was premature and moreover that recommendations of the Inspectors were not justiciable, because it was for the Council to decide whether to adopt those recommendations or not. However, the judge agreed with the Claimant that the binding nature of a recommendation made by an examining inspector means they are susceptible to judicial review: “the Defendant’s argument fails to engage with the reality, rather than the nomenclature, of the PCPA” [47]. This analysis is in accordance with the commentary in the Planning Encyclopedia, but had never been tested before until this claim.
2. A standing point was taken against the Claimant on the basis that the Council was a better-placed challenger and the Claimant had not participated in the examination hearings. The judge rejected this argument, applying R (Good Law Project) v Runneymede Trust [2022] EWHC 298 (Admin). She held that the Claimant “is an NGO established and operating in precisely the field of this AAP and this challenge” [60] and furthermore:

“I do not read the Divisional Court decision in Good Law Project as seeking to create a new test for standing, of whether there is a “better placed claimant”. Such a test would be a radical tightening of the rules in standing, this being a long step from a requirement that a claimant is not a busybody. There may be many judicial reviews where it could be said that someone other than the Claimant was better-placed, in the sense that they were more directly affected by the decision. But there may equally be many reasons why such a person chooses not to bring a challenge.” [61]

A copy of the judgment can be found here.

The Written Ministerial Statement at the heart of the claim was recently discussed in Channel 4’s The Great Climate Fight.

Alex Goodman KC and Alex Shattock acted for the successful claimant Rights: Community: Action, instructed by Ricky Gama and Klara Ipek at Leigh Day.