Challenging government policy on green planning

The climate campaign group Rights Community Action (RCA) is set to challenge government policy that limits local planning authorities' green ambitions in the Court of Appeal. During the hearing scheduled for the 24th and 25th of June, RCA will contest an update to a government Written Ministerial Statement (WMS) that prevents councils from imposing higher environmental standards on housing developments. This contentious WMS, initially published in 2015, serves as a key aspect of government planning policy across various areas.

A judgment delivered in February 2024 overturned a prior ruling by planning inspectors that had weakened net zero initiatives for a village in Oxford. The judges found that the WMS had been outpaced by more current policies. Subsequently, the government revised the WMS, asserting that development plans must not exceed energy efficiency standards outlined in existing or future government building regulations.

RCA argues that this policy effectively restricts local authorities from pursuing greener development projects, thereby unlawfully limiting their capacity to create more energy-efficient homes. Moreover, the group contends that the updated statement is inconsistent with the government’s obligations under the Environment Act 2021, which mandates consideration of the government's environmental principles policy statement.

After RCA’s judicial review claim against the update was dismissed by the High Court last summer, permission to appeal the decision was granted in November 2024. The RCA plans to present its appeal on several grounds, including a claim that the High Court judge misunderstood section 19 of the Environment Act, which requires ministers to take the government's environmental principles policy statement into account during policy development, and misinterpreted the Planning and Energy Act, which permits local authorities to include green energy policies in development plans.

Naomi Luhde-Thompson, CEO of Rights Community Action, expressed the group’s frustrations, saying, “It shouldn’t be controversial to expect government support for councils who want to build homes that are fit for the future — warm, energy efficient, and aligned with our climate commitments. Local communities are ready to lead the way, but the government is tying their hands with outdated and short-sighted policy - why? This case is also crucial to ensuring that Ministers use scientific evidence in making policy at national level that has an impact on the environment. This is just common sense. We’re going to the Court of Appeal because we believe local authorities must be empowered, not blocked, when it comes to protecting people from high energy bills and acting on the impacts of the climate crisis, and that the Government should take its environmental responsibilities seriously. The Government seems to think people are the problem - we've taken this case because we know that people are the solution.”

Ricardo Gama, a partner at Leigh Day who represents RCA, conveyed his bewilderment at the government’s position, stating, “It is bizarre that the government seems happy to allow new homes in 2025 to be built without proper insulation and other energy efficiency measures, which would reduce bills and will need to be introduced at some point if we’re going to meet the net zero target. Failing to build homes to a net zero standard at the outset just means they’ll need to be retrofitted in a few years’ time, at even higher cost. That’s why Rights Community Action are disappointed that they are having to go all the way to the Court of Appeal to establish the legal right of local councils to fill the gap left by national government policy. They are looking forward to putting their case to the court.”