Judge rejects claim over lawfulness of written ministerial statement on local authorities and energy efficiency standards

The High Court has found the then Secretary of State for Levelling Up, Housing and Communities acted lawfully in issuing a Written Ministerial Statement that prevented local authorities from setting energy efficiency standards for new buildings that exceed those in the Building Regulations.

Campaign group Rights Community Action, which brought the case, said it would appeal against the judgment of Mrs Justice Lieven.

The  statement concerned is titled Planning – Local Energy Efficiency Standards Updated and was issued in 2023 by the previous Government.

Rights Community Action challenged its validity on three grounds.

The first was that the Secretary of State failed to fulfil his duty under s.19(1) of the Environment Act 2021 to have due regard to the Environmental Principles Policy Statement.

On its second ground, the group argued that the statement unlawfully purported to restrict the exercise by local authorities of powers conferred by statute.

It said the 2023 statement misdirected local authorities as to the exercise of their powers under s.1 of the Planning and Energy Act 2008 to set policies in their development plans seeking energy efficiency standards which exceed building regulations, “in a manner inconsistent with the Act's purpose or objects”.

Rights Community Action also argued under this ground that the statement unlawfully misdirected the ability of local authorities to meet their duty under s.19 of the Planning and Compulsory Purchase Act 2004, which provides that development plan documents must include policies designed to mitigate climate change.

The third ground was that the statement “presents an unlawfully misleading picture of the legal powers of decision makers (in particular Planning Inspectors)”.

Lieven J noted the statement said: “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 Secretary of State argued that to allow different energy standards in different areas causes difficulties for housebuilders, which might lead to fewer new houses being delivered.

Rights Community Action though contended that some local authorities would wish to impose higher carbon efficiency standards to ensure that future housing has lower carbon impacts.

Mrs Justice Lieven said that although the statement acknowledged greater environmental benefits would flow if local authorities could set higher standards, the Secretary of State “has chosen to put considerable weight on the impact that might have on the supply of new housing, over the potential benefits of imposing higher standards.

“This is a policy choice for the minister and is explained in the assessment, and does not disclose any error of law.

“There is nothing irrational in terms of the negative/positive environmental impacts the assessment refers to. Experts might disagree on the issue, but that is a matter for policy makers and not the court.”

Lieven J rejected the argument that the Government failed to have regard to s.19(1) of the Environment Act 2021 noting an extract from a Government assessment did “show a proper inquiry into the environmental impacts of the policy choice”.

The judge found the ministerial statement did not unlawfully state the law or undermine the purpose of s.1 Planning and Energy Act 2008 or s.19 and s.38(6) PCPA as its purpose had been to prevent inconsistency of standards, and the Government could constrain the setting of standards in development plans through the use of national policy.

Where a local authority had already adopted energy standards that went beyond the Building Regulations the statement said these should be applied flexibly and “again that is in accordance with the legal position”, Lieven J said.

“National policy can state that decision makers should take specified matters into consideration and that is not inconsistent with the primacy of the development plan under s.38(6) PCPA.”

Rights Community Action said in a statement: “With the support of the Good Law Project, we will be appealing. Our view is that the judgment did not properly engage with the Environment Act duty in this, its first test case.

“It is crucial to support the purpose of the laws at stake and to ensure that the duty is meaningful one in demanding different outcomes that go further to protect the environment.”

Good Law Project legal manager Bekah Sparrow said: “We think the decision was wrong and will be supporting an appeal. It was encouraging that the judgment made clear that, whatever ministers said, local authorities can exceed building regulations, but so much more needs to be done to deliver the improvements that communities want and the planet needs.”

Mark Smulian