CA-2024-001754 - [2025] EWCA Civ 990

The PEA 2008 resulted from a Private Member’s bill. As introduced to Parliament, s.1 of the Bill simply provided as follows:

“Development plans

A local planning authority may in its development plan and development plan documents specify that any person making an application for planning permission should include such reasonable provision as the authority may specify for—

(a)

the generation of energy from renewable sources as part of the proposed development;

(b)

the generation of low carbon energy as part of the proposed development;

(c)

an energy efficiency standard in all, part or parts of the proposed development that exceeds that required by any building regulations in force at the time of the application.”

In this original form s.1(c) would simply have allowed a LPA to include in a DPD a policy requiring proposed development to meet an energy efficiency standard that exceeded what was required by any relevant building regulation. The draft Bill did not limit the extent of any exceedance. It appears that the purpose of the Bill may have been to overcome doubts about whether LPAs could lawfully include in their DPDs policies of the kind referred to in s.1.

However, as a result of discussions with the Department, the promoter of the Bill, and then Parliament, agreed that a new version of s.1 should be substituted corresponding to the text which was finally enacted. The result was to impose constraints upon the policy-making power in s.1(1)(c) to set energy efficiency standards exceeding the requirements of building regulations. First, s.1(2) provides a definition of “energy efficiency standards”. Thus, a standard which a LPA wishes to include in a DPD policy made under s.1(1)(c) is one which is set out or referred to in regulations made by the Secretary of State, or is set out or endorsed in national policy issued by the Secretary of State. Second, s.1(1)(c) authorises local energy efficiency standards to be adopted which exceed the “energy requirements” (as defined in s.1(2)) of building regulations. Third, a policy included in a DPD by virtue of s.1(1)(c) must not be inconsistent with “national policies relating to furthering energy efficiency” (s.1(5) and s.1(7)(c)). That third requirement should be read compatibly with s.1(1)(c) and (2). Thus, local policies must not be inconsistent with national policies furthering energy efficiency which go beyond the setting out of energy efficiency standards. Read properly, s.1(5) does not duplicate or overlap s.1(1)(c) and (2).

The key point is that s.1(1)(c) only authorises a LPA to choose an energy efficiency standard falling within the ambit of a standard referred to in regulations or policy made by the Secretary of State (s.1(2)). The 2023 WMS allows LPAs to set a standard compatible with the draft FHS (“planned buildings regulations”) during the interim period leading up to the adoption of the FHS. The draft FHS is an energy efficiency standard which exceeds the energy requirements of current building regulations for the purposes of s.1(1)(c) and (2). The effect of the 2023 WMS is that a LPA is able to set a local standard up to the level of the draft FHS. The 2023 WMS therefore accords with the language and purpose of s.1 of the PEA and the manner in which it is intended to operate.

It appears that the parties agreed in the High Court that extracts from Hansard addressing the amendments to the Bill were admissible. However, in R v Secretary of State for the Environment, Transport and the Regions ex parte Spath Holme Limited [2001] 2 AC 349 Lord Bingham emphasised that the conditions laid down in Pepper v Hart [1993] AC 593 for the admissibility of Hansard on issues of statutory interpretation “should be strictly insisted upon” (p.392D). Lord Nicholls said at p.398H-399A that it is rare for a reference to Hansard to be of assistance on statutory construction.

In my judgment s.1(1)(c) and (2) of the PEA 2008 are not ambiguous or obscure. Their meaning is clear and the language used does not lead to an absurdity (see [67]-[68] above). Accordingly, the first test in Pepper v Hart is not satisfied.

In any event, the extract quoted by Lieven J at [65] is no more than a paraphrase of the legislation itself. The Hansard material does not shed any more light on the meaning or purpose of the legislation than the PEA itself. In my judgment it is not admissible. I would only add that it has not been explained to us how a statement by a Minister on what appears to have remained a Private Member’s bill is admissible under the second rule in Pepper v Hart.

The 2023 WMS also addresses previously adopted DPD policies that set energy efficiency standards more onerous than building regulations. It simply says that such policies should be applied flexibly in development control decisions where the developer can satisfy certain criteria. I agree with the judge that this approach is not unlawful. It is entirely consistent with s.38(6) of the PCPA 2004 as explained in Loup and City of Edinburgh (see [14] above) and the Secretary of State’s role as the central planning authority (see [23] above). There is no inconsistency with any part of s.19 of the PCPA 2024.

The appellant has misread both the legislation and the 2023 WMS. For the reasons set out above, the 2023 WMS does not override the power conferred by s.1 of the PEA 2008 or distort or displace the statutory scheme (per Lord Carnwath in Hopkins Homes— see [24] above). The 2023 WMS does not empty s.1 of content, so that LPAs cannot set standards in excess of the Building Regulations (para.58 of the appellant’s skeleton).

Some LPAs wish to go further under s.1(1)(c) than simply set a standard related to the draft FHS. They wish to set standards using metrics proposed by the London Energy Transformation Initiative (“LETI”). The practical significance of this point is explained in a witness statement by Dr. Hugh Ellis of the Town and County Planning Association, upon which the appellant relies. The Secretary of State’s approach uses metrics based on Target Emissions Rate (“TER”) and the Standard Assessment Procedure (“SAP”) (see also [11] above). It is said that TER metrics rely upon grid decarbonisation to achieve reductions in carbon emissions compatible with net zero whereas LETI’s approach does not. The latter sets absolute energy metrics for the performance of a building. The draft FHS which the 2023 WMS allows LPAs to use as the basis for their DPD policies employs the TER metric.

This application for judicial review is not a proper forum for resolving the dispute as to whether one metric is preferable to another. Rather, Mr. Goodman sought to avoid the analysis in [67]-[68] above by submitting that “standards” in s.1(1)(c) and s.1(2) of the PEA 2008 refers only to the metrics or measures used in assessing energy efficiency. Although this argument would appear to be simply one of statutory interpretation, in my judgment it involves rewriting, not interpreting, the legislation. The language used by Parliament does not limit “energy efficiency standards” to a choice of metric.

In any event, the appellant’s argument would not assist LPAs who wish to set local standards based on LETI’s approach. The relevant metrics for that approach have not been referred to or endorsed by the Secretary of State in national regulations or policy.

The 2023 WMS does recognise that a LPA may wish to set energy efficiency standards which go beyond the draft FHS. Here, the WMS states that a LPA should provide a well-reasoned and robustly costed justification for any such policy which meets a number of criteria. Development must remain viable, the effect of the policy on housing supply and affordability must be considered and the additional requirement should be expressed as a percentage uplift of a dwelling’s “target emissions rate”. Those criteria do not set out or endorse any particular “energy efficiency standard”. Instead, they lay down a basis upon which the justification for a LPA standard higher than the draft FHS can be tested by an Inspector during the examination of a DPD.

That raises the question, what is the statutory power under which a LPA could include in a DPD a policy standard more onerous than one set in national regulations or policy, such as the FHS? If the source is not s.1(1)(c) and (2) of the PEA 2008, could it be s.19 and the other related powers in Part 2 of the PCPA 2004? For reasons which are unclear, s.1(4) of the PEA 2008 makes s.1(1) subject to s.19 of the PCPA 2004. However, if s.19 provides the source of power for a LPA to make a local policy setting a more onerous standard than one endorsed by the Secretary of State, such as the draft FHS, it could be said that a LPA has no need to rely upon s.1 of the PEA 2008 at all and the restraints in that provision upon setting standards that exceed the requirements of building regulations could be circumvented. That would not appear to make sense.

I am left with the impression that the draftsman did not think through the tension between the intention to use national measures to impose statutory restraints on how far a LPA may set standards exceeding building regulations and the well-established legal principle that a LPA can include in its DPD a local policy which conflicts with national policy, justified, for example, by local circumstances (see e.g. West Berkshire).

The parties did not produce a convincing analysis of the legislation which would resolve this issue. No assistance is to be gained from the secondary materials to which we were referred, including Hansard. However, it is unnecessary for the court to reach a conclusion on the matter in order to determine this ground of appeal. Even if the PEA 2008 does not empower LPAs to set a higher standard than is contained in national policy, e.g. the draft FHS, then the fact that the 2023 WMS goes further by addressing that exceptional case does not lend any support to the appellant’s argument that the WMS unlawfully cuts across the PEA 2008.

Accordingly, I would reject ground 2.