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 | 02 July 2024 |
Neutral Citation | [2024] EWHC 1693 (Admin) |
Court | King's Bench Division (Administrative Court) |
Docket Number | Case No: AC-2024-LON-000621 |
[2024] EWHC 1693 (Admin)
Mrs Justice Lieven DBE
Case No: AC-2024-LON-000621
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Alex Goodman KC and Mr Alex Shattock (instructed by Good Law Practice Ltd) for the Claimant
Mr Ned Westaway (instructed by Government Legal Department) for the Defendant
Hearing dates: 18–19 June 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 2 July 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 a Written Ministerial Statement (“WMS”) dated 13 December 2023 titled “Planning – Local Energy Efficiency Standards Update” (“the 2023 WMS”).
The Claimant was represented by Alex Goodman KC and Alex Shattock, and the Defendant was represented by Ned Westaway.
There are three Grounds of Challenge:
a) Ground 1: In promulgating the 2023 WMS, and subsequently, the Defendant failed to fulfil his duty under s.19(1) of the Environment Act 2021 (“EA”) to have due regard to the Environmental Principles Policy Statement (“EPPS”).
b) Ground 2: The Minister, through the 2023 WMS, unlawfully purported to restrict the exercise by local authorities of powers conferred by statute. In particular:
i. The 2023 WMS misdirects local authorities, or purports to restrain them, as to the exercise of their powers under s.1 of the Planning and Energy Act 2008 (“PEA”) 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.
ii. The 2023 WMS unlawfully misdirects or purports to restrain the ability of local authorities to meet their duty under s.19 of the Planning and Compulsory Purchase Act 2004 (“PCPA”) (which provides that development plan documents must 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).
iii. The 2023 WMS unlawfully misdirects decision-makers as to the application of the statutory presumption in favour of the development plan contained in s.38(6) of the PCPA.
c) Ground 3: The 2023 WMS presents an unlawfully misleading picture of the legal powers of decision makers (in particular Planning Inspectors): R (A) v SSHD [2021] 1 WLR 3931.
The Claimant is a non-governmental organisation incorporated as a limited company in January 2019 with social and environmental objectives, and is involved in community planning, particularly the formation of local development plans. There is no dispute about the Claimant's standing to bring this challenge.
The 2023 WMS
The 2023 WMS replaced policy in a 2015 WMS, which was subject to a successful judicial review brought by the Claimant ( R (Rights Community Action) v SSLUHC [2024] EWHC 359. It covers similar territory, namely the setting of energy efficiency standards for new homes. The WMS provides, as most relevant, as follows:
“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.” [emphasis added]
It is relevant to note at the outset that it is accepted by the Defendant that the Minister (Baroness Penn) did not have express regard to the EPPS before promulgating the WMS. However, there was consideration of it in February 2024 when the Government was considering what action to take in respect of the Claimant's threatened challenge.
The genesis of the 2023 WMS
The 2023 WMS replaced an earlier 2015 WMS, that covered the same subject matter of the scope of local authorities' powers to set standards for new buildings above the building regulations, in circumstances where the 2015 WMS had become outdated after 2021. The 2013 WMS was the subject of my decision in R (Rights Community Action Ltd) v SSHLUC [2024] EWHC 259.
In October 2019 the Government carried out a consultation on a document called “the Future Homes Standard” (“FHS”), which was intended to provide for stricter standards in relation to newly built homes, in order to reduce their CO2 impact and move towards “net zero” new homes. As I understand it, the FHS lies in part in changes to the building regulations and in part in changes to relevant standards. The FHS is intended to make changes to the building regulations to ensure that new homes produce at least 75% lower CO2 emissions than those built to the earlier 2013 standards.
In response to the 2019 consultation the Government said it would take two separate steps. Firstly, in 2021 it brought in an uplift to the building regulations, with effect from June 2022. This required new homes to deliver around 30% lower CO2 emissions compared to the standard in 2013. This is described by Mr Palmer, the Defendant's Deputy Director for Building Performance, in his witness statement as a “stepping stone” to the FHS. Secondly, the Government indicated an intention to introduce the FHS in 2025.
There was a further consultation on the FHS in December 2023 that was published at the same time as the 2023 WMS. Although this is perhaps rather less than clear in the document itself, Mr Westaway told the Court that the reference in the WMS to not going beyond “current or planned building regulations” is a reference to the consultation draft of the FHS, as set out in the December consultation document, or as subsequently amended before any formal adoption. Mr Westaway was clear in oral argument that Local Planning Authorities (“LPAs”), acting in accordance with the WMS, can apply standards that go up to those in the draft FHS, at whatever relevant date such a draft has been issued.
There is disagreement between the Claimant, together with at least some LPAs, and the Defendant about whether or not LPAs should be able to set their own different standards. Mr Palmer explains the Defendant's position, which is reflected in the documentation, that to allow different standards causes difficulties for housebuilders. This in turn may lead to less new houses being delivered, which potentially results in less lower carbon housing being built. The Claimant (and some local authorities) wish to impose higher carbon efficiency standards or requirements in order to ensure that future housing has lower carbon impacts. Dr Ellis, the Claimant's witness and Director of Policy at the Town and Country Planning Association, sets out the benefits in terms of achieving net zero, of the LPAs being able to set different standards from those in the WMS and the emerging FHS.
One difference between the policy in the WMS and that which some LPAs wish to adopt is the approach of national policy in the WMS and FHS to rely on Target Emission Rate (“TER”), which is a measure or metric of the energy performance of the home dependent on the level of decarbonisation of the national electricity grid; as opposed to the metric preferred by some local authorities, London Energy Transformation Initiative (“LETI”), which focuses on the carbon efficiency of the home itself. The impact of the WMS is to prevent local authorities relying on LETI and thus will lead, according to Dr Ellis, to higher carbon emissions from homes built than would be the case if local authorities were free to set their own standards.
Mr Palmer summarises the Defendant's position in his witness statement as follows:
“20. By encouraging local standards to match current or planned national standards, and where they do go further, to do so in a consistent way, the WMS, therefore, aims to mitigate the risk of adverse effects on housing supply caused by divergent local standards.”
The process of consideration of the WMS 2023, and the draft FHS for consultation, was as follows. On 26 April 2023 there was a submission to Ministers on an “Optional Framework” for plan-makers and housebuilders wanting to build to higher standards than the building regulations.
On 17 July 2023 the Minister and the Secretary of State were advised to publish a new WMS. This included the following:
“… “We would still wish to allow local innovation and ambition where...
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