“Due Regard” under the Environment Act 2021 and Statutory Limits on Local Energy-Efficiency Standards:
Commentary on Rights: Community: Action Ltd (RCA) v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 990

Introduction

This Court of Appeal decision resolves two nationally significant questions:

1. What amounts to compliance with the new ministerial duty in s.19 Environment Act 2021 (“EA 2021”) to have “due regard” to the Environmental Principles Policy Statement (EPPS) when formulating policy.
2. Whether a Written Ministerial Statement (“2023 WMS”) that discourages Local Planning Authorities (“LPAs”) from setting energy-efficiency standards above current or planned Building Regulations unlawfully constrains powers expressly conferred by s.1 of the Planning and Energy Act 2008 (“PEA 2008”).

The appellant, Rights: Community: Action Ltd, a climate-focused NGO, sought to quash the 2023 WMS. Lieven J in the High Court dismissed the claim; the Court of Appeal (Lewison, Lewis and Dingemans LJJ) has now dismissed the appeal.

Summary of the Judgment

The Court held—

• Ground 2 (statutory powers): Section 1(1)(c) PEA 2008 only authorises LPAs to choose energy-efficiency standards that have already been set out or endorsed nationally. The 2023 WMS lawfully permits local standards up to the level of the draft Future Homes Standard (“FHS”) and simply requires extra justification for anything higher. It therefore does not “cut across” or empty s.1 of content.
• Ground 1 (s.19 duty): Although the Minster failed to consider the EPPS when first publishing the WMS (December 2023), a subsequent, detailed EPPS assessment (February 2024) satisfied the “due regard” duty before the matter reached court. The Court accepted that:
  • s.19 applies at all stages of “making” policy (developing, adopting, revising),
  • a later assessment does not retrospectively cure the earlier breach but may persuade the court to withhold relief, and
  • the February 2024 assessment was adequate, proportionate, undertaken in good faith, and balanced environmental gains against housing-supply considerations.

The appeal was therefore dismissed.

Analysis

1. Precedents Cited

1. Hotak v Southwark LBC [2015] UKSC 30 – Lord Neuberger’s observation that the weight and extent of a “due regard” duty are “highly fact-sensitive” was transplanted from the Public Sector Equality Duty (PSED) to s.19 EA 2021.
2. PSED Case-law – Bracking, Rowley, Banks, Carlton-Conway were cited to argue for strict, real-time compliance. The Court distinguished them: the EPPS duty is textually and contextually different although similar language (“due regard”) is shared.
3. Loup (1995) & City of Edinburgh [1997] 1 WLR 1447 – Confirm the primacy of the development plan under s.38(6) PCPA 2004 but also the discretion to weigh national policy. Used to show the WMS did not displace the statutory scheme.
4. Hopkins Homes [2017] UKSC 37 – Lord Carnwath’s caveat that national policy must not distort the statutory plan-led system.
5. West Berkshire DC [2016] EWCA Civ 441 – National policy can be departed from where local circumstances justify.

2. Legal Reasoning

a) Interpretation of s.1 PEA 2008

• The final text of s.1(2) restricts “energy-efficiency standards” to those set out or endorsed by the Secretary of State.
• Therefore LPAs may not invent wholly novel metrics (e.g., LETI) unless nationally endorsed.
• The 2023 WMS, while discouraging standards above the draft FHS, still endorses that draft FHS; hence it fits within the statutory gateway.

b) Scope and Timing of the s.19 Duty

• “Making policy” (s.47 EA 2021) = developing, adopting, revising – a continuing process.
• Absence of an EPPS assessment at the point of adoption is a breach, but:
  • a minister can revisit the policy before litigation is decided, undertake a compliant assessment, and persuade the court to deny relief;
  • the subsequent assessment does not erase the earlier breach; it goes to the court’s discretion on remedy.
• Proportionality is baked into both s.17(2) and s.19(2). Here, marginal extra carbon-savings from higher local standards weighed against disruption of housing supply justified the ministerial balance.

3. Potential Impact

• Blueprint for s.19 Compliance – Departments may now rely on “iterative” EPPS assessments provided they are genuine, proportionate and precede final judicial scrutiny.
• Planning Practice – LPAs wishing to exceed Building Regulations must root their standards in nationally endorsed metrics or risk unsoundness at examination.
• Policy Drafting – Future WMSs or NPPF revisions will likely be accompanied by concise, proportionate EPPS assessments replicating the template approved here.
• Litigation Strategy – Claimants should challenge early. Government may now “cure” omissions quickly, making quashing unlikely unless the later assessment itself is defective.

Complex Concepts Simplified

• Written Ministerial Statement (WMS): A short statement laid in Parliament by a Minister. In planning law it constitutes “national policy” to which decision-makers must have regard but which does not override the statutory development plan.
• EPPS & the “Five Principles”: Integration, Prevention, Precaution, Rectification at Source, Polluter Pays. Ministers must think about these when making policy; they are not obliged to reach any particular substantive outcome.
• “Due Regard”: Not a tick-box. The decision-maker must:
  1. Identify which principles are relevant,
  2. Understand their meaning,
  3. Conscientiously weigh them against other policy aims.
  The extent/depth of consideration is context-sensitive.
• Future Homes Standard (FHS): Scheduled 2025 uplift to Building Regulations requiring ~75% lower CO₂ than 2013 standards – intended to make homes “net-zero-ready”.
• TER & SAP Metrics: “Target Emissions Rate” and the “Standard Assessment Procedure” are government-approved calculation methods for assessing carbon performance of new dwellings.

Conclusion

The Court of Appeal has delivered the first authoritative guidance on the nascent s.19 EPPS duty, confirming that:

• Compliance can be iterative and proportionate; later conscientious assessments may avert quashing, though they do not erase earlier breaches.
• The statutory phrase “energy-efficiency standards” in s.1 PEA 2008 ties local ambition to nationally endorsed measures; LPAs cannot roam beyond that remit without robust national backing.

Practitioners should expect EPPS assessments to become standard annexes to any national policy instrument, and LPAs should recalibrate local plan work to align with endorsed standards (currently the draft FHS) or prepare detailed viability-led justifications. This judgment balances environmental aspiration with housing delivery and embeds a flexible, but disciplined, approach to the new environmental governance regime post-Brexit.