The King (on the application of Rights Community Action Ltd) v Secretary of State for Levelling Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven,Mrs Justice Lieven DBE |
| Judgment Date | 20 February 2024 |
| Neutral Citation | [2024] EWHC 359 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-001146 |
and
[2024] EWHC 359 (Admin)
Mrs Justice Lieven
Case No: AC-2023-LON-001146
CO/1308/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Alex Goodman KC and Mr Alex Shattock (instructed by Leigh Day Solicitors) for the Claimant
Mr Mark Westmoreland Smith (instructed by Government Legal Department) for the Defendant
The First Interested Party was not represented
Mr Charles Banner KC (instructed by West Oxfordshire District Council Legal Services) for the Second Interested Party
Hearing dates: 14 November 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 20 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is an application for judicial review of the Inspectors' Report into the Salt Cross Garden Village Area Action Plan (“AAP”). The Claimant is a Non-Governmental Organisation (“NGO”) involved in community planning, particularly in relation to the formulation of local development plans. The Defendant is the Secretary of State for Communities and Local Government (“SoS”) on whose behalf the Inspectors report. The First Interested Party is the Local Planning Authority (“ LPA”) responsible for the AAP. The Second Interested Party is the developer of the Salt Cross development area.
The Claimant was represented by Alex Goodman KC and Alex Shattock, the Defendant was represented by Mark Westmoreland Smith, the First Interested Party was not represented, and the Second Interested Party was represented by Charles Banner KC.
The case concerns whether the Inspectors erred in law in their treatment of a Written Ministerial Statement (“WMS”) dated 2015, which purported to control how energy performance requirements in new housing development would relate to the Building Regulations and the Code for Sustainable Homes. There is some inconsistency in the documentation between whether the Inspectors should be called “the Examiners” and whether their report is an Inspectors' Report or an Examiners' Report. For the purposes of consistency, I describe them throughout as the Inspectors and refer to the Inspectors' Report (“IR”).
The case raises the following issues:
a. The Claimant's standing to bring the case;
b. Whether there is a justiciable decision;
c. The Grounds:
i. Whether the Inspectors erred in law in respect of their approach to the WMS?
ii. Whether the IR failed to lawfully deal with the inconsistency of approach with other Inspector's reports dealing with the same WMS?
iii. Whether there was procedural unfairness.
The Planning and Energy Act 2008 and the Written Ministerial Statement 2015
The legislative framework for the scope of energy policies in Local Authority development plan documents is set out in section 1 of the Planning and Energy Act 2008 (“PEA”) which provides:
“ 1 Energy policies
(1) A local planning authority in England may in their development plan documents, a corporate joint committee may in their strategic development plan, and a local planning authority in Wales may in their local development plan, 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.
(3) In subsection (2) “appropriate national authority” means—
(a) the Secretary of State, in the case of a local planning authority in England;
…
(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).”
[emphasis added]
The issue at the centre of the case is the interpretation of, and approach to, a WMS issued by the then SoS, Eric Pickles MP, in 2015. The WMS covered a series of disparate town planning issues and included a heading “Housing Standards Streamlining the system”. There was then a sub-heading “Plan making”. This included the following:
“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. This statement does not modify the National Planning Policy Framework policy allowing the connection of new housing development to low carbon infrastructure such as district heating networks.”
[emphasis added]
A summary version of the WMS was inserted into the National Planning Policy Guidance (“NPPG”) on 15 March 2019. This states:
“The Written Ministerial Statement on Plan Making dated 25 March 2015 clarified the use of plan policies and conditions on energy performance standards for new housing developments. The statement sets out the government's expectation that such 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 (this is approximately 20% above current Building Regulations across the build mix).”
Subsequent to the WMS, various things happened which materially impacted upon the policy set out therein.
Firstly, the Deregulation Act 2015 gained Royal Assent and therefore became an Act and not a Bill. However, the amendments to the PEA which were contained in the Deregulation Act 2015, and referred to in the WMS, have not been commenced.
Secondly, in a statement made in January 2021 the Government stated 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.” [emphasis added].
Thirdly, amendments to Part L of the Building Regulations in 2021, set energy standards for homes at a level exceeding Level 4 of the Code for Sustainable Homes. Therefore the current standards in the Building Regulations are above those that the WMS told local authorities not to exceed.
Fourthly the Government's January 2022 response to the Select Committee report on Local Government and the path to net zero, where it said:
“The National Planning Policy Framework (NPPF) is clear that the planning system should support the transition to a low-carbon future in a changing climate, taking full account of flood risk and coastal change. It should help to shape places in ways that contribute to radical reductions in greenhouse gas emissions, minimise vulnerability and improve resilience; encourage the reuse of existing resources, including the conversion of existing buildings; and support renewable and low-carbon energy and associated infrastructure. The NPPF expects Local Plans to take account of climate change over the longer term; local authorities should adopt proactive strategies to reduce carbon emissions and recognise the objectives and provisions of the Climate Change Act 2008. Local authorities have the power to set local energy efficiency standards that go beyond the minimum standards set through the Building Regulations, through the Planning and Energy Act 2008. In January 2021, we clarified in the Future Homes Standard consultation response that in the immediate term we will not amend the Planning and Energy Act 2008, which means that local authorities still retain...
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