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

The judge said that the issues under ground 1 fell into two parts: (1) Establishing the correct legal approach to the “due regard” duty in s.19 and (2) whether the Secretary of State satisfied that duty on the facts of the case. But to address the first issue it was necessary to consider the application of the duty in the context of the specific factual circumstances of this case [25].

The judge then considered the appellant’s submission that s.19 is analogous to the PSED and so the principles in the case law on the latter should be applied to the former. Mr. Alex Goodman KC who together with Mr. Alex Shattock appeared on behalf of the appellant, relied inter alia on the well-known summary of principles on the PSED in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; [2014] Eq. L.R. 60. (see Lieven J at [27]-[29]).

After having summarised the rival submissions of the appellant’s counsel and of Mr. Ned Westaway on behalf of the Secretary of State [30]-[41], the judge began her analysis by explaining why she regarded the s.19 duty and the PSED as being very different in terms of the language used (save for the words “due regard”) and the aims to be achieved. Whereas impacts on persons with protected characteristics may generally be relatively straightforward, the environmental issues for policy-making, as set out in the EPPS, may often be multi-faceted and complex, and need to be assessed in a holistic manner [42].

But the judge did consider that the approach in Hotak should apply to the requirement for a Minister to have due regard to the EPPS when making a policy: the principles need to be considered in substance, with rigour and with an open mind. Beyond that, the approach necessarily turns on the individual facts and on the broader purposes of the EA 2021 [43].

Turning to the absence of an EPPS assessment when the 2023 WMS was finally approved in December 2023, the judge held that it would be inappropriate for the court to make a declaration that the 2023 WMS is unlawful without considering the legal adequacy of the assessment carried out subsequently. That assessment may provide adequate justification for the court to refuse to grant relief on the basis of the earlier breach of the s.19 duty when the policy was adopted. The court should consider whether the subsequent assessment was done conscientiously, in substance, with rigour and with an open mind [44].

The judge concluded that the EPPS assessment carried out in February 2024 satisfied those tests [46]-[50]. The assessment acknowledged that greater environmental benefits could be achieved if LPAs were able to set higher standards. In substance that involved accepting that, in relative terms, the 2023 WMS could have a negative impact. The judge concluded that the assessment, in accordance with the EPPS, considered whether the 2023 WMS had the potential to cause a negative environmental effect. It would, in that the 2023 WMS might achieve less environmental benefit (e.g. in reducing carbon emissions) when compared to the higher standards that individual LPAs might set. But she said that the Secretary of State had been legally entitled to place considerable weight on the adverse impact that those higher standards might have on the supply of new housing. That was a policy choice for the Secretary of State, which was not irrational, even if experts might disagree about the issue [47].

The judge rejected the appellant’s criticism of the reliance placed in the 2023 WMS on the FHS. Given that the WMS is only an interim policy intended to apply until the FHS is finally approved, there is nothing unreasonable in the WMS accepting that, in the meantime, local policies may impose requirements in excess of the current Building Regulations up to the level of the draft FHS [50].

In relation to ground 2 the judge rejected the appellant’s contention that the 2023 WMS unlawfully emasculated s.1(1)(c) of the PEA 2008 [55]-[62]. The judge referred to a statement in Hansard by a Minister that section 1 allows a LPA to choose a standard in excess of the building regulations only if that standard has been set out or referred to in regulations made by the Secretary of State or which is set out or endorsed in national policy or guidance issued by the Secretary of State [65]. The 2023 WMS is entirely in line with that explanation. As a matter of national policy it allows a LPA to set a standard exceeding the Building Regulations up to the level of the draft FHS [66].