Rights Community Action can appeal judgment restricting green planning ambitions

The challenge targets the government’s 2023 Written Ministerial Statement (WMS), which prevents local authorities from enforcing higher energy efficiency requirements than those outlined in national building regulations. RCA argues that this policy undermines the government’s legal duty under the 2021 Environment Act, which mandates that environmental principles must be considered in policy-making, particularly regarding climate change impacts.

In its initial challenge, RCA, represented by Leigh Day, argued that the updated WMS unlawfully restricted local authorities' powers to implement greener policies. However, the High Court dismissed the case in June 2024. Following this ruling, RCA has now been given permission to appeal to the Court of Appeal.

The 2023 WMS update followed a 2015 policy statement which was deemed outdated after a judge ruled that it was inconsistent with current climate-related policies. The new update specifies that housing developments cannot include energy efficiency standards that surpass those required by current or future government regulations. RCA maintains that this policy shift is contrary to the government’s legal obligations under both the Environment Act 2021 and the Planning and Energy Act, which allows local councils to incorporate green energy policies into planning.

In appealing the decision, RCA will argue the following:

• The High Court judge misunderstood Section 19 of the Environment Act, which obligates ministers to consider environmental principles when crafting policy.
• The judge misinterpreted Section 1 of the Planning and Energy Act, which grants local authorities the power to set energy efficiency standards above government regulations in development plans.

RCA’s appeal is supported by interventions from the Office for Environmental Protection (OEP), which ensures the government complies with environmental laws, as well as from the environmental NGO Green Alliance.

Dr. Naomi Luhde-Thompson, director of Rights Community Action, commented:
"The Environment Act 2021 is meant to guide ministers in considering the environmental impact of policy, especially in relation to climate change. The government’s failure to consider the evidence that local planning policies can deliver better energy efficiency is a significant oversight. This omission is detrimental to both the climate and communities, especially when we are in a climate emergency."

Dr. Luhde-Thompson continued, "The government’s own housing targets contradict its emissions reduction goals. Energy-efficient homes will not only be more affordable to run but will also contribute to a greener economy. The current policy falls short of tackling the pressing climate crisis."

Ricardo Gama, environment solicitor at Leigh Day, emphasised the broader implications of the appeal:
“Our client is fighting to ensure that new homes are built to be energy efficient from the start, rather than being retrofitted later at great cost to homeowners. The previous Labour government had put in place legislation allowing local authorities to set higher standards, so we are perplexed as to why the current government is defending a policy that restricts councils’ efforts to build homes fit for the future.”

The appeal, which could have significant implications for local planning powers and the government's commitment to climate change, has drawn considerable attention from environmental groups, policymakers, and local authorities.