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Introduction
1. This is a paper about two cases about the role planning, and specifically local energy efficiency standards, can play in tackling climate change.
2. Section 1 of the Climate Change Act 2008 imposes on the Secretary of State the duty to ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline. 100% was substituted for the previous figure (80%) by an amending instrument in 2019 which sought to respond to the “Climate Emergency” declared by parliament in that year. Since then hundreds of local authorities have followed suit and declared a climate emergency. Local authorities cannot legislate, but they can, indeed are required, to make policies about development in their area. Many local authorities have sought to do their part to reduce greenhouse gas emissions by making development plan policies which require some new forms of development to achieve “net zero” emissions of greenhouse gases[1]. For some local authorities there is a policy mismatch in building new poorly insulated houses with gas supplies which thereby increase emissions from the housing sector while simultaneously trying to cut emissions by retrofitting insulation and heat pumps to existing stock. Some authorities have sought to introduce policies which push new development closer to the “net zero” standard which will be required of all housing by 2050 (rather than rely simply on the relatively low environmental standards in the building regulations).
3. However, there has been and continues to be a strand of central government thinking around house building which pulls in a different direction to that of progressive local authorities. This strand of thinking sees net zero building standards as a hurdle to maximising house-building numbers. Both of the cases discussed below were claims for judicial review brought by Rights: Community: Action and decided by Mrs Justice Lieven. They explore how the tensions in thinking play out in policy terms.
R (Rights Community Action Ltd) v Secretary of State for Levelling Up, Housing and Communities [2024] PTSR 817 (20 February 2024)
R (Rights Community Action Ltd) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 1693 (02 July 2024)
4. The first claim was decided in favour of the Claimant, the second in favour of the Defendant (though the second is now under appeal, awaiting a decision on permission). The common underlying issue is the extent to which local planning authorities can adopt development plan policies which require new developments to meet energy efficiency standards that exceed the building regulation minimum standards.
Case 1: The Salt Cross Case
R (Rights Community Action Ltd) v Secretary of State for Levelling Up, Housing and Communities [2024] PTSR 817 (20 February 2024)
5. The first case arose because West Oxfordshire District Council wants to promote an Area Action Plan in which the “Salt Cross Garden Village” would be required to be a “net zero” development.
The Local Plan Policies
6. West Oxfordshire’s 2018 Local Plan includes Policy OS2, which identifies the development of a self-contained settlement based on garden village principles to the north of Eynsham that is to be delivered as part of the overall distribution of housing set out in Policy H1. Policy EW1 sets out more detailed policy for the comprehensive development of a free-standing exemplar Garden Village that is to be led by an Area Action Plan (“AAP”), which was the subject of the examination. In other words, the District Council’s Local Plan promotes a garden village in which every house would be built to very high energy efficiency standards. The Council prepared its plan and submitted it for examination.
The AAP
7. Core objective GV3 of the AAP submitted for examination stated:
“To design buildings fit for the future, mitigating the impact of Salt Cross on climate change by achieving zero-carbon development through ultra-low energy fabric and 100% use of low and zero-carbon energy, with no reliance on fossil fuels.”
Policy 2 as submitted for examination set out a number of requirements, including energy efficiency requirements that exceeded the minimum standards in the Building Regulations. Policy 2 provided that development should demonstrate net zero credentials through ultra-low energy fabric specification, overheating mitigation requirements, energy efficiency key performance indicators (KPIs), and being fossil fuel-free.
8. In a report dated 1 March 2023 the Examining Inspectors of the Salt Cross Garden Village AAP concluded that policies in that plan which set energy efficiency standards that exceeded the energy requirements of building regulations were “unsound” and not justified.
The WMS
9. At the time and in issue in those proceedings was a Written Ministerial Statement from 2015 (“the WMS”). A written ministerial statement is a mechanism by which central government delivers statements of policy. It stated as follows:
“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 2015.”
10. Amendments to the Planning and Energy Act 2008 in the Deregulation Bill 2015 did not however commence and in January 2021 the government made a statement that “To provide some certainty in the immediate term, the Government will not amend the Planning and Energy Act 2008, which means that local planning authorities will retain powers to set local energy efficiency standards for new homes.”
Section 1 of the Planning and Energy Act 2008
11. Section 1 of the Planning and Energy Act 2008 provides:
“1 Energy policies
(1) A local planning authority in England may in their development plan documents… include policies imposing reasonable requirements for—
(a) a proportion of energy used in development in their area to be energy from renewable sources in the locality of the development;
(b) a proportion of energy used in development in their area to be low carbon energy from sources in the locality of the development;
(c) development in their area to comply with energy efficiency standards that exceed the energy requirements of building regulations.
(2) In subsection (1)(c)—
“energy efficiency standards” means standards for the purpose of furthering energy efficiency that are—
(a) set out or referred to in regulations made by the appropriate national authority under or by virtue of any other enactment (including an enactment passed after the day on which this Act is passed), or
(b) set out or endorsed in national policies or guidance issued by the appropriate national authority;
“energy requirements”, in relation to building regulations, means requirements of building regulations in respect of energy performance or conservation of fuel and power.
…
(4) The power conferred by subsection (1) has effect subject to subsections (5) to (7) and to—
(a) section 19 of the Planning and Compulsory Purchase Act 2004 (c. 5), in the case of a local planning authority in England;
…
(5) Policies included in development plan documents by virtue of subsection (1) must not be inconsistent with relevant national policies for England.
…
(7) Relevant national policies are—
(a) national policies relating to energy from renewable sources, in the case of policies included by virtue of subsection (1)(a);
(b) national policies relating to low carbon energy, in the case of policies included by virtue of subsection (1)(b);
(c) national policies relating to furthering energy efficiency, in the case of policies included by virtue of subsection (1)(c).”
12. Section 43 of the Deregulation Act 2015 (“the 2015 Act”), if brought into force will provide:
“Subsection (1)(c) [of the 2008 Act] does not apply to development in England that consists of the construction or adaptation of buildings to provide dwellings or the carrying out of any work on dwellings.”
13. The 2015 Written Ministerial Statement also provides as follows:
“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.”
This is also did not occur as planned because the WMS was made shortly before the 2015 election, and once the new administration was formed, enhanced standards were not introduced through the building regulations.
14. By the time the matter came to court in 2024, several local authorities such as Bath and North East Somerset, Cornwall Council and Central Lincolnshire had adopted development plan documents which set energy efficiency standards through development plan policies. The standards thus set exceed the building regulations minima. Those policies had been approved by Inspectors appointed by the Secretary of State to examine local plans[2]. However, during the course of the examination hearing sessions, the promoters of the site, Grosvenor Developments Ltd, objected to Policy 2 based on the grounds that the net zero obligations included in Policy 2 were inconsistent with national policy, and that the evidence as to the deliverability and viability of the requirements was lacking.
15. The Inspectors’ report was published over a year after the hearings and recommended main modifications including to the requirement in Policy 2 that the development at Salt Cross will be “required to demonstrate net zero operational carbon on-site”. It also provided the detail as to how that will be secured. The key part of their reasoning was that the Policy was unsound because, in going further than the Building Regulations, it was inconsistent with the 2015 WMS. At paragraph 145 they explained:
“There is also an absence of robustness and credibility to justify departing from national standards, which leads us to conclude that Policy 2 is inconsistent with national policy.”
The examining Inspectors of the Salt Cross Garden Village AAP interpreted the WMS differently to several of their Inspectorate colleagues. They found that Policy 2 of the AAP, concerning Net Zero Carbon Development, was not consistent with national policy and, in part due to this alleged inconsistency, further held it was not justified: and accordingly that it was “unsound.”
16. Rights: Community: Action brought a judicial review against the recommendation of the Inspectors. There were two preliminary issues raised in objection to this claim for judicial review. The first was that the claim was premature: that a challenge was precluded until the end of the statutory process for plan-making. The second was that Rights: Community Action lacked standing.
Standing
17. On standing, Grosvenor submitted, following R (Good Law Project) v Runneymede Trust [2022] EWHC 298 (Admin) at [16]-[29] that there was a “better placed challenger” than Rights Community Action (i.e. the District Council) and that RCA had only had a belated and fleeting involvement in the case. Lieven J held at paragraph 61:
“Further, 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.”
18. In this respect, Lieven J’s analysis has been supported recently by Swift J (who was one of two judges giving judgment in the Divisional Court). Swift J emphasises in R (Batmanghelidj) v Charity Commission of England and Wales [2024] EWHC 2637 that in referring to a “better-placed” challenger the Divisional Court in the Good Law Project case was only highlighting a consideration potentially relevant to standing, it was not setting a new test for standing in judicial review.
Can a Claim for Judicial Review be brought prior to adoption of a plan?
19. Lieven J agreed with the claimant that a challenge by judicial review to a plan prior to its adoption (rather than through the usual statutory route within six weeks of adoption) was permissible in the circumstances of the case.
20. The statutory background is that by sections 19 and 20 of the Planning and Compulsory Purchase Act 2004 Act the Inspector must determine whether the document is “sound” (s.20(5)(b)).[3] If the Inspector does not consider the document to be “sound”, the local planning authority may request that the Inspector recommend modifications that would make it “sound” (s.20(7C)). A development plan document cannot be adopted without the recommended modifications: s.23(4). A development plan document or a revision to it must not be questioned in any legal proceedings except insofar as provided in s.113: that is, before the end of a six-week period beginning with the day after the document’s adoption (s.113(3B) and (11)(c)).
21. There were three prior cases on the scope of section 113.
22. The Claimant submitted, successfully, that in accordance with the CK Properties case the Court has jurisdiction to hear the claim. This claim was not a challenge to a “relevant document” within the meaning of section 113(2). There were strong practical reasons why a challenge should be allowed prior to adoption of the plan. In this case, it would mean that the local authority had to adopt a plan it did not want before it could challenge a recommendation by the Inspectorate.
Misinterpretation of the Written Ministerial Statement
23. The Claimant submitted that the Inspectors’ conclusions on the soundness of the plan proceeded on a flawed interpretation of the WMS.
24. The WMS stated that “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 2015”.
25. The amendments have not commenced, and the government has confirmed that this will remain the case in the immediate term (see the January 2021 statement). Thus, the Claimant argued, far from proscribing local plan policies that exceed the Building Regulations, the WMS actively endorses them.
26. The Claimant argued that the Inspectors failed to understand the proper interpretation of the WMS. The WMS provides that, following the then-proposed introduction of zero carbon homes policy in late 2016, the energy performance requirements in the Building Regulations would be set at a level equivalent to the (outgoing) Code for Sustainable Homes Level 4 (approximately 20% above the Building (Amendment) Regulations 2013 across the build mix): and the government “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.” The Inspectors alighted upon this in their discussion at paragraph 124 of their report in which they held that the WMS and 2019 NPPG meant that:
“[local] policies should not be used to set conditions on planning permissions with requirements above the equivalent of the energy requirement of Level 4 of the Code for Sustainable Homes (approximately 20% above the 2013 Building Regulations across the build mix). The 2015 WMS remains an extant expression of national policy.”
27. That interpretation of the WMS led to the conclusion at paragraph 125 of the report that:
“… the standards in Policy 2 would amount to a significant uplift on the 2013 Building Regulations. The approach in Policy 2 therefore conflicts with national policy set out in the 2015 WMS.”
28. Lieven J agreed that the Inspectors’ interpretation of the WMS, and therefore of the consistency of the AAP with the WMS was in error holding at [75] that:
The WMS has to be interpreted in accordance with the mischief it was seeking to address, and with an "updating construction", see by analogy with statute, Bennion on Statutory Construction (Eighth Edition) at Chapter 14. The WMS is not a statute but a policy, but even with a statute the mischief is a highly relevant consideration in interpretation, and the principle of applying an updating construction is well established. In order to make sense of the WMS in the circumstances that applied in 2023 it is essential to have regard to the fact that the restriction on setting conditions above Code Level 4, upon which the Inspectors relied in IR124, no longer apply.
In my view, the Inspectors' interpretation neither makes sense on the words, seen in their present context, or of the mischief to which it was applying. To interpret the WMS so as to prevent or restrict the ability of the LPA to set a standard higher than Level 4 is plainly wrong in the light of subsequent events. For this reason, the Inspectors erred in law in their approach by finding that Policy 2 of the AAP was inconsistent with the WMS.
29. Lieven J rejected a defence under section 31(3C) of the Senior Courts Act 1981, holding at [95] that “Overall, in my view, the Inspectors error in respect of the WMS infected the entirety of their analysis. If they had properly understood and applied national policy, then they might well have reached a different set of conclusions on Policy 2, whether in part or on its entirety”.
Summary
30. Between the Defendant Secretary of State and the Developer (Grosvenor), defences were raised on standing, ouster, prematurity, section 31(3C) of the SCA 1981, and that the decision of the Inspectors was on a point of judgment not interpretation, but all were rejected. However, the Secretary of State had another option: to issue a new WMS.
Case 2: the New WMS
R (Rights Community Action Ltd) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 1693 (02 July 2024)
31. The government’s reaction to the first Rights: Community: Action case was to promulgate a new WMS on 13 December 2023 titled “Planning – Local Energy Efficiency Standards Update”. The 2015 WMS remains government policy on range of matters in planning. The 2023 WMS supersedes the section of the 2015 WMS entitled ‘Housing standards: streamlining the system’, sub-paragraph ‘Plan making’ in respect of energy efficiency requirements and standards only.
32. The 2023 WMS provides:
“In 2015, in reference to an uncommenced provision in the Deregulation Act 2015 which amended the Planning and Energy Act 2008, a written ministerial statement (WMS) (HC Deb, 25 March 2015, vol 584, cols 131-138WS) stated that until that amendment was commenced, local plan policies exceeding minimum energy efficiency standards should not go beyond level 4 of the Code for Sustainable Homes.”
…
“The improvement in standards already in force, alongside the ones which are due in 2025, demonstrates the Government’s commitment to ensuring new properties have a much lower impact on the environment in the future. In this context, the Government does not expect plan-makers to set local energy efficiency standards for buildings that go beyond current or planned buildings regulations. The proliferation of multiple, local standards by local authority area can add further costs to building new homes by adding complexity and undermining economies of scale. Any planning policies that propose local energy efficiency standards for buildings that go beyond current or planned buildings regulation should be rejected at examination if they do not have a well-reasoned and robustly costed rationale that ensures:
-That development remains viable, and the impact on housing supply and affordability is considered in accordance with the National Planning Policy Framework.
-The additional requirement is expressed as a percentage uplift of a dwelling’s Target Emissions Rate (TER) calculated using a specified version of the Standard Assessment Procedure (SAP).
Where plan policies go beyond current or planned building regulations, those polices should be applied flexibly to decisions on planning applications and appeals where the applicant can demonstrate that meeting the higher standards is not technically feasible, in relation to the availability of appropriate local energy infrastructure (for example adequate existing and planned grid connections) and access to adequate supply chains.”
33. The Claimant brought a claim for judicial review challenging the policy expressed through the new Written Ministerial Statement. The claim alleged two grounds. Ground 1 was that in breach of section 19 of the Environment Act 2021, the Secretary of State, in making the WMS, failed to have regard to the Environmental Principles Policy Statement.
34. Section 19 of the Environment Act 2021 is a new provision which it was hoped would integrate consideration of the environment into Ministerial decision making. Sections 17 and 18 of the Environment Act 2021 (“EA 2021”) require the Secretary of State to prepare a policy statement on environmental principles (“EPPS”). The five principles which together comprise the “environmental principles” are defined by s.17(5) of the EA 2021. The EPPS was made pursuant to s.17 and came into effect on 1 November 2023. The duty under section 19 of the EA 2021 requires Ministers “when making” policy related to England to have regard to the EPPS (which is itself published by a Minister). This duty applies whenever ministerial policy is made, but not when any other public authority makes policy. “Policy” relates for example to proposals that lead to legislation, national policy statements and frameworks, ministerial statements, and other strategies.
35. Section 19 of the Environment Act 2021 provides
19 Policy statement on environmental principles: effect
(1)A Minister of the Crown must, when making policy, have due regard to the policy statement on environmental principles currently in effect.”
36. The EPPS provides:
“Policy making
The legal duty to have due regard to this policy statement applies to Ministers when making policy. Policy can be broadly understood as an intended course of action adopted to achieve an objective…”
37. Key principles within the EPPS are as follows:
“Embedding environmental protection - the integration principle
Description: As set out in the Environment Act, integration is the principle that environmental protection should be integrated into the making of policies. This means that policymakers should look for opportunities to embed environmental protection and/or enhancement across fields of policy – not just those directly related to the environment.
When to use the integration principle: The integration principle applies to all policy in scope of the legal duty.
Application of the integration principle: Applying the integration principle involves considering whether the policy has the potential to cause a negative environmental effect which could be avoided, minimised, or reduced through alterations to the policy in proportion to other policy aims.
…
The prevention principle.
Description: The prevention principle means that government policy should aim to prevent environmental harm. This principle underpins many aspects of environmental policy to ensure that environmental damage, such as CO2 emissions, pollution or biodiversity loss,[footnote 6] is avoided.
The prevention principle should promote policy design options that prevent environmental damage either before it has occurred (through policy design), or to contain existing damage. This can have economic benefits as it prevents additional costs and complexities that arise when environmental damage occurs.
The prevention principle should generally be used in preference over the rectification at source principle or polluter pays principle, as these principles are used in instances when prevention cannot be achieved.”
38. The Rights: Community: Action case is the first case to consider this new duty.
39. The Defendant accepted that because Baroness Penn had not had sight of an EPPS assessment, “the Minister who adopted the policy did not have regard to the EPPS in breach of section 19(1) of EA 2021”. However, Lieven J held that that failure to comply with that duty was not an error of law which required the decision to adopt the policy to be revisited. She held, rather, that a summary-form assessment undertaken after the event and in response to the claim for judicial review was sufficient to discharge the section 19 duty retrospectively. She accepted submissions for the Secretary of State that the duty is a diffuse one, requiring proportionality, whose objectives are not clear-cut (paragraph 46). She held that there is nothing unlawful in prioritising economic growth over negative environmental impacts (paragraph 47) and the judge held the duty could be discharged by an assessment of the policy against the EPPS long after the relevant policy decision had already been taken.
Ground 2
40. Ground 2 of the claim is that the WMS unlawfully purports to restrain local authorities from the exercise of their powers to set energy standards in exceedance of those set out in the Building Regulations.
41. The ground centred on the meaning and interpretation of section 1 of the Planning and Energy Act 2008. The WMS states that “the Government does not expect plan-makers to set local energy efficiency standards for buildings that go beyond current or planned buildings regulations.” That purports to encourage and in effect to direct local authorities not to require anything other than the statutory minimum standards as imposed by the Building Regulations. The argument for the Claimant was that the WMS unlawfully purported to emasculate the exercise by local authorities of their statutory powers (relying on R (Gujra) v Crown Prosecution Service [2013] 1 AC 484 and R (Palestine Solidarity Campaign) v SSHLUC [2020] 1 WLR 1774.
43. Lieven J said that section 1 of the Planning and Energy Act 2008 was by no means easy to understand, but by recourse to parliamentary explanation (by the then Minister Sadiq Khan) held that the purpose of section 1 was to prevent inconsistency of standards, which is precisely what the WMS was also trying to achieve. That, combined with the reference in the WMS to “flexibility” meant that the policy was not emasculating the power.
Court of Appeal
43. There is an outstanding application for permission to appeal against the judgment of Lieven J. An interesting component is that both the Office of Environmental Protection and the Green Alliance have sought permission to intervene on the section 19 ground citing its novelty and importance.
This blog was written by Alex Goodman KC.
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[1] For a broader picture, some of the recent national legislation, policy and case law around climate change and planning are rehearsed in a judgment last week R (Friends of the Earth) v Secretary of State for Environment, Food and Rural Affairs [2024] EWHC 2707 (Chamberlain J).
[2] See, e.g. the Report of Inspector Lewis to Bath and North East Somerset Council dated 13 December 2022; the Report of Inspector Paul Griffiths to Cornwall Council dated 10 January 2023 following examination of the Cornwall Council Climate Emergency Development Plan Document; the Report of Inspectors Matthew Birkinshaw and Clive Coyne regarding the Central Lincolnshire Local Plan Review (28 March 2023).
[3] The term was defined in paragraph 35 of the NPPF in force at the relevant time:
[4] Para 52: “I accept Mr Lockhart-Mummery's submission that the Claimant is challenging the steps taken, or not taken, by way of preparation for submission of the local plan and that this is not a challenge to the development plan document or local plan itself.” See also the commentary in the Planning Encyclopaedia at 2-4598-18
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