Rights Community Action Ltd, R (on the application of) v Secretary of State for Levelling Up

A Minister’s duty to have due regard to environmental principles requires consideration of the relevant policy statement in substance, with rigour and with an open mind. The application of that duty is context-sensitive because environmental effects may be complex and non-linear. A retrospective assessment may satisfy the duty where the statutory scheme permits policy review and the assessment is conscientious. The court must not substitute its view of the policy merits for that of the Minister.

National planning policy may constrain local planning authorities’ exercise of statutory powers to set higher energy-efficiency standards, provided it remains within the statutory framework. Guidance requiring flexibility in applying existing policies does not necessarily conflict with the statutory primacy of the development plan.

The claimant sought judicial review of a Written Ministerial Statement dated 13 December 2023 concerning local energy-efficiency standards for new buildings. It challenged the statement on three grounds: failure to comply with the duty under the Environment Act 2021 to have due regard to the Environmental Principles Policy Statement; unlawful restriction or misdirection concerning local planning authorities’ statutory powers and duties; and presentation of a misleading account of the legal position.

The challenge concerned the interaction between national policy, the power under the Planning and Energy Act 2008 to set standards exceeding building regulations, and duties under the Planning and Compulsory Purchase Act 2004. The central issues were whether the environmental assessment was legally sufficient and whether the statement unlawfully constrained local planning powers.

1. Ground One dismissed. The duty under section 19 of the Environment Act 2021 requires the Minister to consider the Environmental Principles Policy Statement in substance, with rigour and with an open mind. The approach in the equality-duty authorities is relevant by analogy, but cannot be applied mechanically because the statutory schemes and protected interests differ.
2. The duty is fact-sensitive. Environmental impacts may be multifaceted and non-linear, and the Minister may balance possible environmental benefits against effects on housing supply and the delivery of lower-carbon homes. The court reviews whether there was conscientious consideration, not the weight assigned to competing policy considerations.
3. The Minister’s failure to consider an assessment before publication did not automatically invalidate the statement. Sections 19 and 47 of the Environment Act 2021 contemplate policy-making including review. A later assessment may satisfy the duty if it is conscientious and meets the substantive standard.
4. The February 2024 assessment acknowledged that higher local standards might produce further carbon reductions, but balanced that against possible disruption to housing supply and reduced delivery of zero-carbon-ready homes. That was a sufficient inquiry into the environmental effects. Reliance on the emerging Future Homes Standard was also permissible because the statement and the proposed standard formed an inter-related policy package.
5. Grounds Two and Three dismissed. Section 1 of the Planning and Energy Act 2008, read as a whole and in light of the Ministerial statement referred to under R (Gujra) v Crown Prosecution Service, permits national policy to constrain local standards. The statute does not support the claimant’s distinction between standards and requirements. The statement therefore did not emasculate the statutory power.
6. National policy may require specified matters to be considered when applying existing development-plan policies. That approach is compatible with the development-plan primacy in section 38(6) of the Planning and Compulsory Purchase Act 2004. The statement did not misstate the legal position contrary to R (A) v Secretary of State for the Home Department. The claim was dismissed.