High court dismisses energy efficiency challenge
Court affirms local energy standards with robust evidence requirement.
In July, a legal challenge by two campaign groups against the written ministerial statement (WMS) was dismissed by a High Court judge. The campaign groups, ‘Rights: Community: Action’ and ‘Good Law Project’, mounted their challenge to the WMS, claiming that the written ministerial statement failed to consider key principles outlined in the Environment Act.
The WMS prepared by former junior housing minister Baroness Penn stated that the government "does not expect plan-makers to set local energy efficiency standards for buildings that go beyond current or planned buildings regulations". Baroness Penn added “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."
The challenge centred around three grounds. The first ground argued that the government had not fulfilled its duty under the Environment Act to consider the environmental principles policy statement (EPPS) when issuing the 2023 WMS. Campaigners claimed that no assessment had been conducted prior to approving the WMS, or that the subsequent assessment lacked substance and rigor.
In response, Mrs Justice Lieven DBE argued that a retrospective assessment could still meet the statutory duty as long as it was carried out conscientiously. Ultimately, Justice Lieven DBE deemed the February 2024 assessment to have met these criteria, acknowledging its recognition of potential environmental benefits from setting higher standards. This ground was rejected by Justice Lieven DBE.
The second ground of the challenge alleged that the government unlawfully restricted local authorities' powers granted by statute. The claimant argued that the WMS effectively prevented local planning authorities from setting standards higher than those prescribed in building regulations. The justice refuted this claim, stating that the WMS did not prohibit standards beyond building regulations but outlined specific criteria for their application.
The third ground questioned the accuracy of the WMS regarding the legal powers of decision-makers, particularly planning inspectors. The ruling determined that the WMS did not falsely state the law or undermine the purpose of the Planning and Energy Act 2008, concluding that it aligned with government policy and did not curtail local authority powers. Grounds two and three were therefore dismissed.
The campaign groups are currently seeking permission to take the case to the Court of Appeal because, in their view, the ministerial statement still constrains the scope of certain planning policies. Moreover, they want to ensure the new Labour government sees that there is an opportunity with its ambitious housebuilding targets to promote energy-efficient housing.
Despite the dismissal of the challenge, this ruling delivers a clear message, signalling both the power and responsibility of local authorities in helping to shape sustainable building practices. While the ruling clarifies that councils can surpass national building regulations, it also emphasises the importance of providing robust evidence to support these policies and highlights the need for a well-reasoned and costed rationale when proposing higher standards. While we should watch this space to see how the campaign groups appeal unfolds, this case marks a key ruling in the pursuit of sustainable development within the housing sector.
If you would like to discuss how this may affect your projects, please get in touch with our planning team.
