R (on the application of Rights Community Action Ltd) v Secretary of State for Levelling Up, Housing and Communities

Environment – Energy efficiency – Ministerial statement – Claimant applying for judicial review of written ministerial statement by defendant secretary of state on energy efficiency standards in new homes – Whether defendant failing in duty to have due regard to the Environmental Principles Policy Statement – Whether defendant unlawfully purporting to restrict exercise of statutory powers by local authorities – Application dismissed The claimant was a non-governmental organisation incorporated as a limited company in 2019 with social and environmental objectives, and was involved in community planning, particularly the formation of local development plans. It applied for judicial review of a 2023 written ministerial statement (WMS) on energy efficiency standards in new homes: “Planning – Local Energy Efficiency Standards Update”. The claimant contended that, in promulgating the 2023 WMS, and subsequently, the defendant secretary of state failed to fulfil his duty under section 19(1) of the Environment Act 2021 to have due regard to the Environmental Principles Policy Statement (EPPS), although a subsequent assessment had been carried out in February 2024. Further, the defendant, through the WMS, unlawfully purported to restrict the exercise by local authorities of powers conferred by statute. In particular it: (i) misdirected local authorities, or purported to restrain them, as to the exercise of their powers under section 1 of the Planning and Energy Act 2008 to set development plan policies seeking energy efficiency standards which exceeded Building Regulations, in a manner inconsistent with the Act’s purpose or objects; (ii) unlawfully misdirected or purported to restrain the ability of local authorities to meet their duty under section 19 of the Planning and Compulsory Purchase Act 2004 to include policies designed to secure that the development and use of land in the local planning authority’s area contribute to the mitigation of, and adaptation to, climate change; and (iii) unlawfully misdirected decision-makers as to the application of the statutory presumption in favour of the development plan in section 38(6) of the 2004 Act. Furthermore, the WMS presented an unlawfully misleading picture of the legal powers of decision-makers (in particular, planning inspectors). Held: The application was dismissed. (1) The claimant submitted that the duty to “have due regard” in section 19 of the 2021 Act should be interpreted analogously to the duty to have “due regard” in section 149 of the Equality Act (the Public Sector Equality Duty (PSED) and that the case law on PSED should be applied to section 19. However, the two duties were very different, both in terms of the statutory provisions (save for the broad words “have due regard”) and the aims to be achieved. Whereas the impact on those with protected characteristics might generally be relatively straightforward to set out, the environmental issues as set out in the EPPS would often be very multifaceted and complex. Although setting higher CO2 standards for new homes might appear to be more environmentally positive, it might have consequences that led to an environmentally less good ultimate outcome. Environmental impacts were rarely linear and binary, but rather frequently involved complex and multifaceted impacts which needed to be assessed in a holistic manner. The test set out in Hotak v London Borough of Southwark [2016] AC 811 of the need to consider the EPPS with substance, rigour and an open mind, was plainly applicable to the section 19 duty. However, beyond that the approach was necessarily one that turned both on the individual facts and also the broader purposes of the Environment Act 2021. It was for the decision-maker to determine how much weight to give to the duty: the court simply had to be satisfied that there had been rigorous consideration of the duty. Provided that there had been a proper and conscientious focus on the statutory criteria, the court could not interfere simply because it would have given greater weight to the equality implications of the decision. (2) The defendant had acknowledged her failure to have regard to an assessment of the EPPS when making the WMS. However, the case law was clear that such failures could, in appropriate cases, be remedied later: a later assessment could meet the statutory duty. The question was whether it was done conscientiously. When there was a retrospective assessment, as here, the court should apply the tests set out in Hotak. However, it was not appropriate to make a declaration of unlawfulness simply because the assessment was done after the adoption of the policy. That was reinforced by the fact that section 19, read with section 47, expressly defined the “making” of the policy as including the “reviewing” of the policy. The assessment in this case met those tests. The February 2024 assessment addressed whether the impact of the WMS was negative in environmental terms. It acknowledged that greater environmental benefits might flow if local planning authorities could set higher standards. That was in substance an acceptance of the possible “negative” impacts or harm of the policy, in accordance with the EPPS. The defendant had 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. That was a policy choice for the defendant, explained in the assessment, and did not disclose any error of law. There was nothing irrational in terms of the negative/positive environmental impacts the assessment referred to. Experts might disagree on the issue, but that was a matter for policymakers, not the court. (3) The present case concerned section 1(1)(c) of the Planning and Energy Act 2008, which allowed the local planning authority to have development plan policies imposing reasonable requirements for development to comply with “energy efficiency” standards that exceeded the requirements of the Building Regulations. Energy efficiency standards and energy requirements were defined in section 1(2)(b). In the court’s view, the WMS did not unlawfully state the law or undermine the purpose of section 1 of the 2008 Act or section 19 and section 38(6) of the 2004 Act. The purpose of section 1(2) of the 2008 Act, and the section as a whole, was clearly to prevent inconsistency of standards, which was precisely what the WMS was also seeking to avoid. Section 1(5) made it clear that the government could constrain the setting of standards in development plans through the use of national policy. The WMS accorded with that approach. (4) The distinction which the appellant sought to draw between standards and requirements, and the narrow approach to standards, was not reflected in the language of the statute. In any event, section 1(5) referred to policies, and therefore did not differentiate between standards or requirements in those policies. In relation to the policies already adopted and the WMS statement that they should be applied “flexibly”, that was in accordance with the legal position. National policy could state that decision-makers should take specified matters into consideration and that was not inconsistent with the primacy of the development plan under section 38(6) of the 2004 Act. Consequently, the WMS did not attenuate or emasculate the local planning authorities’ statutory powers or misstate the law. Alex Goodman KC and Alex Shattock (instructed by Good Law Practice Ltd) appeared for the claimant; Ned Westaway (instructed by Government Legal Department) appeared for the defendant. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Rights Community Action Ltd) v Secretary of State for Levelling Up, Housing and Communities