Rights: Community: Action Ltd, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government

Factual and Procedural Background

The Appellant, a non-governmental organisation involved in community planning and local development plans, challenged the lawfulness of a Written Ministerial Statement ("WMS") issued on 13 December 2023 by the Secretary of State for Levelling Up, Housing and Communities ("the 2023 WMS"). The 2023 WMS provides national policy guidance to local planning authorities ("LPAs") on setting building energy efficiency standards exceeding building regulations in development plan documents ("DPDs"). The Appellant sought judicial review aiming to quash the 2023 WMS or obtain a declaration of its unlawfulness.

The 2023 WMS was issued against a statutory framework including the Planning and Compulsory Purchase Act 2004 ("PCPA 2004"), the Planning and Energy Act 2008 ("PEA 2008"), and the Environment Act 2021 ("EA 2021"). The EA 2021 imposes a duty on Ministers to have due regard to the Environmental Principles Policy Statement ("EPPS") when making policy (s.19). The duty came into force on 1 November 2023, shortly before the 2023 WMS was approved.

Initially, a draft of the 2023 WMS was approved by Minister Rowley on 5 October 2023, accompanied by an EPPS assessment. Subsequently, ministerial responsibility passed to Minister Penn, who approved the final WMS on 13 December 2023 without receiving an EPPS assessment or being informed of the s.19 duty. Following pre-action correspondence, a detailed EPPS assessment was submitted to Minister Penn in February 2024, who decided the WMS should remain. The Secretary of State then delegated the final decision to Minister Rowley, who confirmed the WMS on 19 March 2024 after considering the assessment.

The Appellant challenged the WMS on two principal grounds: (1) failure to comply with the s.19 duty to have due regard to the EPPS when promulgating the WMS; and (2) that the WMS unlawfully restricts the statutory powers of LPAs under s.1 of the PEA 2008 and s.19 of the PCPA 2004, and misdirects decision-makers regarding the statutory presumption in favour of the development plan under s.38(6) of the PCPA 2004.

The Office for Environmental Protection ("OEP"), Green Alliance (an environmental think tank), and the Essex Planning Officers' Association were granted leave to intervene, focusing respectively on environmental governance, the s.19 duty, and interpretation of s.1 of the PEA 2008.

The High Court dismissed the Appellant's claim on 2 July 2024. The Appellant now appeals that decision.

Legal Issues Presented

1. Whether the Minister failed to fulfil the statutory duty under s.19(1) of the Environment Act 2021 to have due regard to the Environmental Principles Policy Statement when making the 2023 WMS.
2. Whether the 2023 WMS unlawfully restricts or misdirects local planning authorities in exercising their statutory powers under s.1 of the Planning and Energy Act 2008 and s.19 of the Planning and Compulsory Purchase Act 2004, including misapplication of the statutory presumption in favour of the development plan under s.38(6) of the PCPA 2004.

Arguments of the Parties

Appellant's Arguments

• The s.19 duty to have due regard to the EPPS was not properly discharged because the assessment was carried out after the policy was adopted ("rearguard" assessment), which is insufficient and impermissible.
• The subsequent EPPS assessment was improperly motivated by litigation concerns and lacked independence.
• The assessment improperly relied on the Future Homes Standard ("FHS"), an inchoate policy not yet in force, rather than considering the actual impacts of the 2023 WMS itself.
• The Minister failed to make reasonable inquiries about the impact of restricting LPAs from setting higher energy efficiency standards.
• Section 1 of the PEA 2008 allows LPAs to set energy efficiency standards exceeding building regulations without those standards needing to be set out or endorsed in national policy, contrary to the effect of the 2023 WMS.

Respondent's Arguments (Secretary of State and Interveners)

• The s.19 duty applies at various stages of policy-making, including development and adoption, and subsequent assessments can satisfy the duty if done with substance, rigour, and an open mind.
• The February 2024 EPPS assessment was legally adequate, carried out in good faith, and addressed relevant environmental principles proportionately.
• The 2023 WMS is an interim policy aligned with the draft FHS, which is a valid national policy standard exceeding current building regulations.
• Section 1(1)(c) and (2) of the PEA 2008 restrict LPAs to adopting energy efficiency standards only if these are set out or endorsed in national regulations or policy; the 2023 WMS complies with this by endorsing the draft FHS.
• The 2023 WMS does not unlawfully restrict LPAs’ powers but provides national guidance consistent with statutory provisions and the national planning framework.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hotak v Southwark London Borough Council [2015] UKSC 30	Principle that the weight and extent of the duty to have due regard are fact-sensitive and depend on individual judgment.	Applied to interpret the s.19 duty under the EA 2021, emphasizing substance, rigour, and open-mindedness.
R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345	Principles relating to the public sector equality duty ("PSED").	Considered but distinguished as s.19 duty differs from PSED in language and aims.
Loup v Secretary of State for the Environment (1995) 71 P&CR 175	Interpretation of s.38(6) of the PCPA 2004 regarding the weight of development plan policies.	Confirmed that the development plan has priority but the decision-maker decides the weight to be given.
City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447	Confirmed Loup and emphasized decision-maker's judgment in weighing material considerations.	Applied to support the court’s understanding of planning decision-making.
R (Alconbury Developments Limited) v Secretary of State [2001] UKHL 23	Role of national policy as material consideration and decision-maker's discretion on weight.	Supported the view that national policy guides but does not displace statutory development plans.
Hopkins Homes Limited v Secretary of State for Communities and Local Government [2017] UKSC 37	National policy-making must not displace or distort statutory scheme.	Reinforced that national policy is guidance consistent with statutory framework.
R (West Berkshire District Council) v Secretary of State [2016] EWCA Civ 441	Local circumstances can justify departure from national policy.	Supported the principle that local plans may differ from national policy if justified.
R v Secretary of State for the Environment, Transport and the Regions ex parte Spath Holme Limited [2001] 2 AC 349	Strict conditions for admissibility of Hansard in statutory interpretation (Pepper v Hart test).	Held that Hansard extracts were not admissible for interpreting s.1 of the PEA 2008.
Pepper v Hart [1993] AC 593	Conditions for using Hansard as an aid to statutory interpretation.	Applied strictly; court found conditions not met for Hansard to clarify s.1 PEA 2008.
R (Khatun) v Newham London Borough Council [2004] EWCA Civ 55	Judicial review principles including irrationality in public law decisions.	Referenced to confirm limits on court interference with policy judgments.
Barratt Development Limited v City of Wakefield Metropolitan District Council [2010] EWCA Civ 897	Contextualising planning policy within the statutory framework.	Referenced to place the 2023 WMS policy in proper legal context.
R (Carlton-Conway) v LB Harrow [2002] JPL 1216	Concerns about improper motivation in administrative decisions.	Appellant cited it to allege improper motivation; court rejected this allegation.
R (Banks) v SSEFRA [2004] EWHC 416 (Admin)	Limits on after-the-event assessments in public law.	Appellant cited it to argue against retrospective EPPS assessment; court rejected this.

Court's Reasoning and Analysis

The court first identified the legal framework governing local planning policies, including the primacy of the statutory development plan under s.38(6) of the PCPA 2004 and the powers of LPAs under s.1 of the PEA 2008 to set energy efficiency standards exceeding building regulations, subject to limitations imposed by national policy.

Regarding the s.19 duty under the EA 2021, the court acknowledged that the duty to have "due regard" to the EPPS applies throughout the policy-making process, including development, adoption, and revision of policies. The court held that although there was a breach of the s.19 duty when the 2023 WMS was approved in December 2023 without an EPPS assessment, the subsequent detailed assessment carried out in February 2024 was legally adequate, done with substance, rigour, and an open mind, and thus satisfied the duty.

The court rejected the Appellant's characterization of the February 2024 assessment as a mere "rearguard" or litigation-driven exercise, finding no evidence of improper motivation or procedural unfairness. It emphasized that the duty does not require a particular outcome or result, only that due regard be had to relevant environmental principles proportionately and contextually.

On the substance, the court accepted the Government's policy judgment that the 2023 WMS, as an interim measure aligned with the draft Future Homes Standard ("FHS"), strikes an appropriate balance between environmental benefits and housing supply viability. The EPPS assessment acknowledged that higher local standards might yield marginal additional environmental benefits but could adversely affect housing delivery. This policy choice was held to be rational and lawful.

Regarding the statutory interpretation of s.1 of the PEA 2008, the court found that the provision authorizes LPAs to set energy efficiency standards exceeding building regulations only if those standards are set out or endorsed in national regulations or policy. The 2023 WMS, by endorsing the draft FHS, provides such a national policy standard. The court rejected the Appellant's argument that LPAs may set uplift standards independently of national policy, concluding this would conflict with the statutory scheme.

The court also addressed the tension between the statutory power for local policies and national policy guidance, recognizing some ambiguity in the legislation but declining to resolve that tension definitively as unnecessary for the appeal's determination.

Finally, the court found no unlawful misdirection or unlawful restraint by the 2023 WMS on LPAs' statutory powers, nor any distortion of the statutory presumption in favour of the development plan.

Holding and Implications

The court DISMISSED the appeal.

The decision confirms that the duty under s.19 of the Environment Act 2021 to have due regard to the Environmental Principles Policy Statement is a flexible, fact-sensitive obligation that can be satisfied by a subsequent rigorous assessment even if initially omitted, provided it is done in good faith and with proper consideration. The ruling affirms that national policy statements such as the 2023 WMS can lawfully guide and limit the scope of local planning authorities’ powers under the Planning and Energy Act 2008, requiring local standards to align with or be endorsed by national policy, here represented by the draft Future Homes Standard.

This judgment clarifies the interplay between environmental governance duties and planning law, reinforcing the principle that policy decisions balancing environmental aims with housing supply and viability are primarily matters of ministerial judgment subject to rationality review, not judicial substitution. The ruling does not set new precedent beyond the facts of this case but confirms established principles of statutory interpretation and public law procedural fairness in the context of environmental and planning policy-making.