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

Rights: Community: Action Limited appeals against the decision of Lieven J on 2 July 2024 ([2024] EWHC 1693 (Admin); [2025] PTSR 135) refusing its application for judicial review of the written ministerial statement (“WMS”) made by the Secretary of State for Levelling Up, Housing and Communities on 13 December 2023 entitled “Planning – Local Energy Efficiency Standards Update” (“the 2023 WMS”). The appellant sought an order quashing the 2023 WMS and/or a declaration that it is unlawful.

The 2023 WMS is a statement of national policy on the inclusion by local planning authorities (“LPAs”) of policies in their development plan documents (“DPDs”), for example local plans, setting building efficiency standards for new development that exceed the requirements of building regulations. The Government is concerned that higher standards set at a local level may cause developers to incur costs which adversely affect the delivery of new homes, or other forms of development. The 2023 WMS gives guidance on the approach to be taken to local policies setting higher standards in both adopted DPDs and in draft DPDs that are subject to independent examination by a Planning Inspector under the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”).

The duties and powers of a LPA to prepare and adopt DPDs for their area are contained in Part 2 of the PCPA 2004. Section 1 of the Planning and Energy Act 2008 (“PEA 2008”) introduced an additional provision to be read alongside the PCPA 2004. This enables a LPA to include in their DPDs policies imposing reasonable requirements for development inter alia to comply with energy efficiency standards that exceed the energy requirements of building regulations. The ambit of such DPD policies is subject to a number of limitations defined in s.1.

Sections 17 to 19 of the Environment Act 2021 (“EA 2021”) are concerned with the Policy Statement on Environment Principles (commonly referred to as “the EPPS”). Section 17 imposes a duty on the Secretary of State to prepare an EPPS which explains how the five environmental principles set out in s.17(5) should be interpreted and “proportionately applied” by Ministers when making policy. Section 19(1) of the EA 2021 imposes a duty on a Minister to have “due regard” to the EPPS when making policy.

Section 17 of the EA 2021 came into force on 10 May 2022. The EPPS was published on 12 May 2022. A final version of the document was laid before Parliament on 31 January 2023 and came into effect on that day (s.18(6)). The duty in s.19 to have due regard to the EPPS came into force on 1 November 2023, a few weeks before the decision to approve the 2023 WMS.

On 5 October 2023, before the s.19 duty came into force, officials sent a draft of the 2023 WMS, together with a brief assessment of that policy against the EPPS to a Minister, Mr. Lee Rowley. He approved that draft for publication. But on 14 November 2023 ministerial responsibility for this area passed to Baroness Penn. A final version of the WMS with some changes from the October draft was sent to her for approval. The Minister was told that Mr. Rowley had approved the October 2023 draft, but not about the s.19 duty, and she was not given an EPPS assessment of the policy. She approved publication on 13 December 2023. Following pre-action protocol correspondence which raised non-compliance with the s.19 duty, on 22 February 2024 a more detailed EPPS assessment was submitted by officials to Baroness Penn asking her to decide whether, in the light of that assessment, the WMS should remain as published. Baroness Penn responded that it should. The matter was put before the Secretary of State who delegated the final decision to a Minister, who turned out to be Mr. Rowley again, Baroness Penn being unavailable. A submission accompanied by the EPPS assessment was put to Mr. Rowley on 18 March 2024. He decided the following day that, after considering the assessment, the WMS should remain as published.

The appellant raised three grounds of challenge before the judge of which only the first two are relevant in this appeal:

Ground 1:

In promulgating the WMS, the Minister failed to fulfil his duty under s.19(1) of the Environment Act 2021 to have due regard to the Environmental Principles Policy Statement (‘EPPS’).

Ground 2:

The Minister through the 2023 WMS unlawfully purports to restrict the exercise by local authorities of powers conferred by statute. In particular:

a)

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, in a manner inconsistent with the Act’s purpose (which expressly empowers local authorities to impose energy efficiency standards in their development plan documents that exceed the energy requirements of the Building Regulations).

b)

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 2004”) (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).

c)

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 2004.

Dr. Naomi Luhde-Thompson, the appellant’s Director and Chief Executive, explains in her witness statement that the company is a NGO involved in community planning and, in particular, the formation of local development plans. It is a group of campaigners, lawyers, planners, writers and scientists with a commitment to tackling climate change.

The Office for Environmental Protection (“OEP”) was granted leave to intervene in this appeal. The OEP was established by Chapter 2 of Part 1 of the EA 2021. Its principal objective is to contribute to environmental protection and the improvement of the natural environment (s.23). The OEP is responsible for holding Government and public authorities to account for their compliance with environmental law. The OEP must monitor the implementation of such law (s.29(1)) and may report on any related matter. Its reports are laid before Parliament and published (s.29(6)). The OEP also has functions under the EA 2021 for the enforcement of environmental law (ss.31-43). Mr. Stephen Tromans KC and Ms. Ruth Keating made written and oral submissions on behalf of the OEP.

Green Alliance is a charity and environmental think tank. It has been involved in helping to shape and improve national environmental governance post-Brexit. The Alliance was given leave to intervene in the appeal by written submissions. They focused on the s.19 duty, drawing parallels with the public sector equality duty (“PSED”) in s.149 of the Equality Act 2010. They made submissions similar to those of the appellant.

The Essex Planning Officers’ Association was given leave to intervene by written submissions. They focused on the interpretation of s.1 of the PEA 2008 and the effect of the 2023 WMS in relation to that provision. In particular, they made submissions comparing the metrics used by the Government for assessing the energy efficiency performance of a building – Target Emission Rates (“TER”) and the Standard Assessment Procedure (“SAP”) – with those used by a number of LPAs. They rely upon a witness statement from one of its members, Nicola Melville, the Lead Planning Officer in the Climate and Planning Unit at Essex County Council.

The appellant, the OEP and the Green Alliance have made some wide-ranging submissions about the interpretation and application of the s.19 duty, referring to the case law on the PSED. There is a dispute about the extent to which the two duties are similar and the case law on the PSED is applicable to the s.19 duty. Some of those submissions invited the court to lay down principles which go far beyond the ambit of the issues raised by this appeal. That would be inappropriate. However, the statement of Lord Neuberger PSC in Hotak v Southwark London Borough Council [2015] UKSC 30; [2016] AC 811 at [74] is certainly apposite for the s.19 duty: “the weight and extent of the duty [to have due regard] are highly fact-sensitive and dependent on individual judgment.” The issues in the present appeal concerning compliance with the s.19 duty can largely be resolved by reference to the facts of this case. The broader legal issues which have been raised should be left to a case in which they fall to be determined.