R (on the application of Rights: Community: Action Limited) (Appellant) v Secretary of State for Housing, Communities and Local Government and others (Respondents)

Permission to Appeal application lodged

Case summary
Permission to Appeal
Previous proceedings

Case summary

Case ID

UKSC/2025/0173

Parties

Appellant(s)

Rights: Community: Action Limited

Respondent(s)

Secretary of State for Housing, Communities and Local Government

Office for Environmental Protection

Green Alliance

Essex Planning Officers Association

Issue

Did the Minister when making a policy about local energy efficiency standards: (i) have due regard to the environmental principles policy statement (“EPPS”) as required by section 19 of the Environment Act 2021? (ii) unlawfully restrict the power of local authorities under section 1 of the Planning and Energy Act 2008 to adopt policies in their local plans that set energy efficiency standards for new buildings above the minimum required by building regulations?

Facts

On 13 December, the Secretary of State for Housing, Communities and Local Government made a written ministerial statement (“WMS”) titled “Planning – Local Energy Efficiency Standards Update” (“the 2023 WMS”). The relevant part of the 2023 WMS established that “the Government does not expect plan-makers to set local efficiency standards for buildings that go beyond current or planned building regulations… Any planning policies that propose local energy efficiency standards for buildings that go beyond current or planned building regulation should be rejected at examination if they do not have a well-reasoned and robustly costed rationale…” One difference between national policy as set out in the 2023 WMS and that which some local planning authorities (“LPAs”) wish to adopt is the measure or metric of the energy performance of a building. The metric endorsed in national policy is Target Emission Rate (“TER”) which relies on decarbonisation of the national electricity grid. By contrast, some LPAs wish to use the London Energy Transformation Initiative (“LETI”) which focuses on the carbon efficiency of the home itself. The 2023 WMS was approved for publication on 13 December 2023. On 1 November 2023, section 19 of the Environment Act 2021 (“EA 2021”) came into force. This established a new duty for a Minister to have regard to the EPPS when making policy. The Minister did not have an EPPS assessment when the decision was made to approve and publish the 2023 WMS. However, in October 2023, her predecessor had been provided with an assessment of the draft version of the 2023 WMS against the EPPS. In February 2024, an EPPS assessment was carried out and the Minister decided that the 2023 WMS should remain published. The February 2024 assessment recognised the potential for positive environmental effects if LPAs set higher standards than those mandated by the building regulations. However, this needed to be balanced against the potential disruption to housing supply caused by different standards across the country. The Appellant brought a claim for judicial review in which it alleged that the Minister was in breach of the duty to have regard to the EPPS under section 19 of the EA 2021 when making the 2023 WMS. It further alleged that the 2023 WMS frustrates section 1 of the Planning and Energy Act 2008 (“PEA 2008”) as it seeks to restrain LPAs from adopting policies in their development plan documents (“DPDs”) that set energy efficiency standards for new development above the minimum required by the building regulation. The High Court dismissed the claim for judicial review. The Court of Appeal dismissed the appeal. The Appellant now seeks permission to appeal to the Supreme Court.