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

The grounds of appeal are as follows;

“Ground 1

The judge erred in her interpretation of s 19 of the Environment Act 2021 (“EA 2021”):

i.

The judge failed to understand that the duty to have “due regard” under section 19 EA 2021 is not discharged by way of a “rearguard” assessment of the kind undertaken in this case (see R (Rowley) v Minister for the Cabinet Office [2021] EWHC 2108) (and not simply retrospective).

ii.

Even if s 19 does permit rearguard action, it does not allow for an after-the-event assessment that was “striving to defend an earlier decision in the context of adversarial litigation”, applying R (Banks) v SSEFRA [2004] EWHC 416 (Admin), [105].

iii.

Nor did it permit an assessment carrying a real risk that a fair-minded member of the public would consider that the decision to revisit the 2023 WMS was improperly tainted by the Respondent’s concern about a judicial review challenge, applying the Court of Appeal authority R (Carlton-Conway) v LB Harrow [2002] JPL 1216 (the judge did not address that latter point).

iv.

Properly understood, the s 19 duty requires consideration of the impacts of the individual policy against the environmental principles: that duty is not discharged by assessing the impacts by reference to anticipated benefits of an inchoate policy that is not yet in force. The judge erroneously held that the s 19 duty could be discharged from an assessment that was largely directed towards the Future Homes Standard (a different and as yet inchoate policy)

v.

Although the judge accepted the principle that the section 19 duty required regard to the EPPS with “substance, rigour and an open mind” (as the EPPS itself states), she failed to acknowledge the practical implication of that requirement was to demand due regard to each of the Environmental Principles and to make reasonable inquiries as to the impact of those policies on those affected, including in this case local authorities. She failed to acknowledge the intensity of review required in this context.

Ground 2

The judge erred in her interpretation of s 1 of the Planning and Energy Act 2008. Properly understood, it allows local authorities to set a percentage uplift above the Building Regulations that does not have to be set out in national policy. This error of interpretation tainted her consideration of whether the 2023 WMS cut across the statutory power in s 1.”

It is convenient to deal with ground 2 first.