May-Lean & Co Ltd v The Gas and Electricity Markets Authority & Ors

Practical regulatory guidance and policy documents must be interpreted objectively, in context, and with regard to their purpose, intended audience and relevant common practice. They should not be read with the technical literalism appropriate to legislation.

Requirements that loft insulation cover the entire loft space, and that a loft hatch be completely insulated as far as practical, do not prohibit small gaps around a hatch or the use of a self-fabricated insulation method, particularly where draught-proofing is used. Area-weighted U-value requirements do not require uniform performance throughout the loft. A claim for judicial review may also be refused relief where unexplained delay would cause substantial hardship, prejudice or detriment to good administration.

The claimant manufactured a proprietary loft-hatch insulation product and challenged the defendant’s acceptance of installations using a self-fabricated method under the ECO 2 energy-efficiency scheme.

The challenge alleged that the method failed to comply with the Electricity and Gas (Energy Company Obligation) Order 2014, PAS 2030, the CITB requirements and guidance, the defendant’s Delivery Guidance, and the Building Regulations and Approved Document L1B. Four grounds concerned the interpretation and application of requirements relating to coverage, U-values, thermal bridges, and approved materials. The court also considered delay and the discretionary availability of mandatory relief.

1. Interpretation of regulatory guidance. Documents incorporated into the ECO 2 scheme were not statutes or legal instruments. They had to be interpreted objectively and contextually, having regard to their practical purpose, intended audience and relevant common practice. A broader and non-technical approach was appropriate.
2. Coverage requirements. The requirement in paragraph 4.1 of the CITB requirements and guidance that insulation cover the entire loft space did not prohibit every small gap in the insulation layer. Read with paragraphs 2.38 and 2.39 of the Delivery Guidance, it required the whole loft area, including provision for the hatch, to be treated. It did not outlaw the self-fabricated method.
3. Loft hatch insulation. Paragraph 5.4.1 required the hatch cover to be insulated, as far as practical, to at least the same U-value degree as the rest of the roof space. Paragraph 5.4.2 separately required draught-proofing in accordance with the insulation material’s specifications or instructions. Read together, the provisions were capable of being satisfied by insulating the whole hatch cover with material of equivalent performance and draught-proofing the hatch. They did not prohibit the self-fabricated method.
4. Approved Document L1B. The Approved Document provided guidance rather than prescriptive rules. Its reference to reasonably avoidable thermal bridges required an evaluative judgment and did not exclude the method. The 0.16 U-value for pitched roofs at ceiling level was an area-weighted average, so differing performance in the hatch area did not necessarily produce non-compliance.
5. Materials and products. Paragraph 3.2 of the CITB requirements and guidance referred to insulation materials and products, not every bag, staple, screw, adhesive or other fixing used in an installation. The claimant’s wider construction was inconsistent with the practical purpose of the document.
6. Relief. The claim was dismissed on the merits. In any event, the unexplained delay from April 2015 until proceedings were issued in July 2016, together with the substantial hardship, prejudice and disruption that mandatory relief would cause to the scheme and energy suppliers, would have justified refusing mandatory relief. At most, a declaration would have been appropriate.