Rights Community Action can appeal judgment restricting green planning ambitions

The claim challenges an update to a Written Ministerial Statement (WMS) made in 2023, which allows the government to prevent local authorities setting higher and more ambitious energy efficiency requirements for housing developments than the minimum levels in the building regulations.

RCA argues that the implementation of the 2023 WMS contradicts the government’s duty under the 2021 Environment Act to consider the environmental principles such as that government policy should aim to prevent environmental harm.

After its initial challenge to the policy was knocked back, RCA, represented by law firm Leigh Day, has been granted permission to bring its claim to the Court of Appeal.

The 2023 WMS was implemented by the government to update a statement published in 2015, which was ruled by a judge to have been out of date because it had been overtaken by current policies. The judge overturned a decision by government planning inspectors which relied on the 2015 WMS to water down plans for a net zero village in Oxford.

The 2023 WMS update involved changing a section on housing standards, which now states that plans for developments should not contain energy efficiency standards for buildings that go beyond what is set out in current or future government building regulations.

This was challenged by RCA, which argued that the 2023 WMS unlawfully restricted the powers of local authorities to push for more energy efficient homes and failed to undertake the duty under the Environment Act 2021 to consider environmental impacts properly.

However, this challenge was dismissed by the High Court in June 2024 when a judge ruled in favour of the government.

After being granted to permission to appeal this judgment, RCA will argue its case on the below grounds:

• The judge misunderstood section 19 of the Environment Act, which requires ministers to give consideration to the government’s environmental principles when making policies.

• The judge misinterpreted section 1 of the Planning and Energy Act, which empowers local authorities to include green energy policies when putting forward development plans.

The Office for Environmental Protection, the body set up to make sure the government complies with environmental law, has taken the unusual step of intervening in the case. Environmental NGO the Green Alliance is also intervening.

Dr Naomi Luhde-Thompson, director of Rights Community Action, said:

"The Environment Act 2021 is meant to help ministers consider the environmental impacts of policy, in this case the impact on climate change. Having admitted they had not carried out the duty in the first instance, the ‘rearguard action’ failed to consider the - widely available - evidence in local plans on the difference in climate impact between building regulations and the best energy performance planning policies. This failure fundamentally undermines the duty laid out in the Environment Act 2021, and must be rectified in the face of the nature and climate crisis.

“Our government has said it wants to build 1.5 million homes, while also announcing a higher emissions reduction target of 81% by 2035. This policy on energy efficiency in England will mean those homes will be expensive to run, expensive to retrofit, and contribute far more emissions than is necessary.

“Communities, local government and the best in the sector have been far more ambitious than the government – actually facing the climate crisis head on and pushing for homes that are built fabric first to be warm and secure to run, and at the same time contributing to the green economy.”

Leigh Day environment solicitor Ricardo Gama said:

“Our client’s appeal is the latest attempt in an ongoing battle to get government to grapple with the fact that new homes need to be built to be as energy efficient as possible. Otherwise, they’ll just need to be retrofitted later down the line and the people living in them will be saddled with higher bills in the meantime. The previous Labour government put in place legislation which specifically allowed local councils to include ambitious energy efficiency policies, and so it’s unclear to our client why the new government is defending a Tory policy which hinders attempts by councils to do the right thing in the face of the climate crisis.”