Court of Appeal Gives Judgment on Local Energy Efficiency Standards and a Key Environment Act Duty

Public Law and Judicial Review, Cornerstone Climate

The Court of Appeal has today (25 July 2025) handed down judgment in R (Rights: Community: Action Ltd) v Secretary of State for Housing, Communities and Local Government [2025] EWVA Civ 990 (available here). The case concerns the lawfulness of a 2023 Written Ministerial Statement (2023 WMS) that had been interpreted by some Planning Inspectors, local planning authorities (LPAs) and developers as limiting the power of LPAs to set local energy efficiency standards higher than building regulations – which outcome the Appellant said was unlawful. This was supported by an intervention in writing by the Essex Planning Officers Association.  

Furthermore, the Secretary of State acknowledged that, when the 2023 WMS was made, the Minister had not seen any assessment of the policy in light of the Environmental Principles Policy Statement (EPPS), so the Appellant contended the WMS was unlawful for failure to give due regard to the EPPS, as required by section 19 of the Environment Act 2021. This was supported by interventions orally and in writing by the Office for Environmental Protection (OEP) and in writing by Green Alliance. 

Although the Court of Appeal dismissed the appeal, its reasons for doing so differed markedly from the High Court, and have provided some clarity on both the 2023 WMS and the section 19 EPPS duty.

Local Energy Efficiency Standards 

The 2023 WMS addresses both plan-making and decision-taking. On plan-making, it states that “the Government does not expect plan-makers to set local energy efficiency standards for buildings that go beyond current or planned buildings regulations”, although it gives guidance to local plan examiners that they should reject energy efficiency standards going beyond “current or planned building regulation”, “if they do not have a well-reasoned and robustly costed rationale that ensures that development remains viable” and any additional requirement “is expressed as a percentage uplift of a dwelling’s Target Emissions Rate (TER) calculated using a specified version of the Standard Assessment Procedure (SAP)”. 

On decision-taking the 2023 WMS states that, where plan policies “go beyond current or planned building regulations, those polices should be applied flexibly to decisions on planning applications and appeals where the applicant can demonstrate that meeting the higher standards is not technically feasible”. 

The Court of Appeal reminded that national policy “is no more than guidance”, and that “[l]ocal circumstances may justify a departure from national policy…even where national policy is expressed in unqualified terms” (§24), citing R (West Berkshire DC) v SSCLG [2016] 1 WLR 3923 at §§21-30, per Laws and Treacy LLJ.   

The Court of Appeal went on to consider the Planning and Energy Act 2008 (the 2008 Act), which is one source of the power for LPAs to set local energy efficiency standards beyond building regulations. Differently from the High Court, the Court of Appeal held that the wording of the 2008 Act is sufficiently clear that there was no need to resort to Parliamentary materials as an interpretative aid (§§69-72). 

On plan-making, the Court of Appeal held that the 2023 WMS is a policy of the type envisaged by section 1(1)(c) of the 2008 Act, as it endorses reliance on the draft Future Homes Standard (FHS) as one way in which LPAs can go beyond current building standards (§68). 

The Court of Appeal rejected submission that the reference to the TER metric was an unlawful limitation of LPAs’ powers under the 2008 Act. It held that this was not endorsement of any particular “energy efficiency standard”, but rather one way in which the WMS envisages LPAs can go beyond the energy efficiency standards in the draft FHS (§77). It held that judicial review was not the proper forum for resolving the dispute as to whether one metric was preferable to another (§75). 

Finally, the Court of Appeal accepted that there is a tension between the approach of the 2008 Act (which limits LPAs to using energy efficiency standards endorsed by the Secretary of State), the wider power of LPAs to act under section 19 of the Planning and Compulsory Purchase Act 2004 (2004 Act), which provides that development plan documents must include policies designed to secure that the development and use of land in the local planning authority’s area contribute to the mitigation of, and adaptation to, climate change, and the principle in West Berkshire that an LPA can include within its development plan documents policies that conflict with national policy, where justified (§§78-79). However, the Court held it did not have to reach a conclusion on the matter (§80), meaning that it remains open to LPAs to set local energy efficiency standards, such as those using metrics proposed by the London Energy Transformation Initiative (LETI), as an exercise of their powers under section 19 of the 2004 Act.

On decision-making, the Court of Appeal held that the reference to extant local plan policies being applied flexibly simply reiterates the usual approach under section 28(6) of the 2004 Act (§72). 

EPPS Duty and section 19 of the Environment Act 2021  

Turning to the duty to have due regard to the EPPS, the Court of Appeal emphasised that the “the duty applies when a policy is being developed, so that the requirement to have ‘due regard’ to the EPPS does not apply simply at the point when a policy is adopted. It applies when a policy is being formulated and different policy options are being considered. (§85).   

Although not mentioned to by the Court of Appeal, this reflects the wording of the EPPS itself, which provides that “policymakers” (i.e. Ministers, their officials and “others developing policy on [Ministers’] behalf”) should “consider and use the principles iteratively from the outset and during subsequent stages in policy development”. Policymakers “should identify potential environmental effects (positive or negative) and use the principles to inform and influence the design of the policy.” It indicates that proper use of the principles will “ensure that nature and the environment are proactively designed into the policymaking process”. The EPPS emphases that the principles should prompt “new”; “creative”; “innovative” thinking.  

The Court of Appeal clarified that the fact that no regard was had to the EPPS when the decision was taken to approve the 2023 WMS means there was a breach of the section 19 EPPS duty at that stage (§86). The Court of Appeal emphasised that any legally adequate due regard to the EPPS which takes place later “does not alter the position that there was a breach of the s.19 duty when the policy was adopted initially. It would be wrong to say that a s.19 compliant EPPS assessment carried out subsequently has remedied the earlier breach of s.19 when the policy was adopted, or has retrospectively validated that decision.” (§88). This differs from the High Court’s judgment, which had not clearly held that the initial failure constituted a breach and had suggested later assessment could remedy any breach (HC §44). 

The Court of Appeal clarified that the EPPS duty must be carried out in substance, with rigour and an open mind (§93). If there has been a failure at an earlier stage to comply with the EPPS duty, the legal adequacy and good faith of any subsequent reconsideration of the duty are matters which can be challenged and which a Court can review. Depending on the circumstances, a Court can quash the policy if it considers this necessary (§§87-88). Again the Court of Appeal cited West Berkshire, which held that courts should not be “disciplinarian, punishing for the sake of it” if a later consideration was undertaken in substance, with rigour and an open mind, but that “a particularly dilatory state of affairs” at the earlier stage may nevertheless lead to a decision of unlawfulness and quashing despite later proper consideration. 

Beyond that, the Court of Appeal declined the invitation of the OEP (see here), Green Alliance (see here) and the Appellant to lay down general principles on the nature of the section 19 EPPS duty (§12).  

On the facts of the specific case, which included that the initial stages of the 2023 WMS were developed when the section 19 EPPS duty was not in force, the Court of Appeal held that the later consider of the EPPS was lawful and proportionate, and so dismissed the appeal. 

Estelle Dehon KC represented Green Alliance in its first legal intervention in its 45 year history. 

Rowan Clapp represented the Essex Planning Officers Association in its intervention. 

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