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

The claimant sought judicial review of a Written Ministerial Statement of 13 December 2023 (the 2023 WMS) on the ground that the Secretary of State breached the duty in s.19 Environment Act 2021 to have due regard to the Environmental Principles Policy Statement (EPPS), unlawfully constrained local authorities' statutory powers under s.1 Planning and Energy Act 2008 and related duties in the Planning and Compulsory Purchase Act 2004, and misstated the law to decision-makers.

The court held that the s.19 duty must be discharged "in substance, with rigour and with an open mind" (applying Hotak and analogous PSED authorities) but that a retrospective, conscientious assessment can in appropriate cases cure the absence of a contemporaneous EPPS consideration. The February 2024 EPPS assessment satisfied that test on the facts. The court also held that the WMS did not unlawfully emasculate or misstate the effect of s.1 PEA, nor did it frustrate the duties in s.19(1A) or the primacy in s.38(6) PCPA: the WMS was a permissible national policy statement intended to ensure consistency with national standards (including the emerging Future Homes Standard) and to guide flexible application of adopted policies. All Grounds were dismissed.

This is a first-instance judicial review of a Written Ministerial Statement of 13 December 2023 concerning local energy efficiency standards for new buildings. The claimant, a non-governmental organisation active in community planning, sought relief challenging the lawfulness of the WMS on three principal grounds: (i) failure to have due regard to the Environmental Principles Policy Statement under s.19 Environment Act 2021; (ii) unlawful attempt to restrict or misdirect local planning authorities in the exercise of powers under s.1 Planning and Energy Act 2008 and in the discharge of planning duties under the Planning and Compulsory Purchase Act 2004 (s.19(1A) and s.38(6)); and (iii) that the WMS presented a misleading account of the legal position to decision-makers.

The issues framed by the court included whether the s.19 duty should be interpreted in the same way as the Public Sector Equality Duty under s.149 Equality Act 2010 (and whether the caselaw on that duty is applicable by analogy), whether a retrospective EPPS assessment could cure the absence of contemporaneous consideration, whether the February 2024 assessment met the required standard of "substance, rigour and an open mind," and whether the WMS unlawfully frustrated statutory powers or misstated the law.

Key facts and procedural posture: the 2023 WMS replaced an earlier WMS and was published alongside a consultation draft of the Future Homes Standard (FHS). It contained a central statement that the Government did not expect local plan-makers to set local energy efficiency standards beyond current or planned building regulations, and directed that local policies exceeding those standards should be rejected at examination unless well-reasoned and robustly costed. It is accepted that the Minister who approved the WMS on 13 December 2023 did not have an EPPS assessment at that time; an EPPS assessment was prepared and sent to the Minister in February 2024 after pre-action correspondence.

The court analysed the legal standard for the s.19 duty, noting that while the Hotak formulation ("in substance, with rigour and with an open mind") applies, the duties under the Environment Act and the Equality Act are different in nature and context. The judge accepted that retrospective assessments can in some cases meet the statutory duty if carried out conscientiously. Applying that standard to the February 2024 assessment, the court concluded it had addressed potential environmental effects and balanced them against housing supply and viability considerations, and therefore met the statutory requirement. On the statutory-interpretation challenges, the court held that s.1 PEA must be read subject to the section's own limits (notably s.1(2) and s.1(5)) and national policy, and that the WMS did not unlawfully override or misstate local authorities' powers, nor did it mislead decision-makers in the way identified in R (A) v SSHD. The judge therefore dismissed all Grounds and dismissed the claim.

The claim is dismissed. The court held (i) that the s.19 Environment Act 2021 duty to have due regard to the EPPS is to be applied "in substance, with rigour and with an open mind," but that a retrospective, conscientious assessment can satisfy the duty; the February 2024 EPPS assessment met that standard; and (ii) the 2023 WMS did not unlawfully restrict or emasculate local authorities' statutory powers under s.1 Planning and Energy Act 2008 nor misstate the law as to duties under the Planning and Compulsory Purchase Act 2004 and decision-making primacy under s.38(6).