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

A planning inspector’s report under the Planning and Compulsory Purchase Act 2004 may be amenable to judicial review before formal plan adoption where the statutory scheme leaves the local planning authority with no realistic option except to accept the recommendation or abandon the plan.

A Written Ministerial Statement must be interpreted in its current context and by reference to the mischief it addressed. A policy based on an uncommenced statutory amendment cannot rationally be treated as preventing local authorities from setting higher energy-efficiency standards where subsequent events have removed that premise. An error in interpreting national policy may infect the assessment of justification and cannot necessarily be severed from the remainder of the examination.

The claimant, an NGO concerned with community planning and climate change, challenged the Inspectors’ Report on the Salt Cross Garden Village Area Action Plan. The challenge concerned the recommendation that the Plan’s detailed net-zero energy policy be substantially modified.

The claimant argued that the Inspectors had misinterpreted a 2015 Written Ministerial Statement which addressed local energy-efficiency standards pending commencement of amendments to the Planning and Energy Act 2008. It also alleged inconsistency with other inspectors’ reports and procedural unfairness. The defendant and interested party challenged justiciability, standing and relief.

1. Justiciability. The claim was justiciable. Under sections 20 and 23 of the Planning and Compulsory Purchase Act 2004, an inspector’s recommendation of main modifications materially constrained the local planning authority. The authority could accept the recommendation or allow the whole plan to fail. The recommendation therefore had direct legal and practical consequences and was not merely a non-binding recommendation ([37]-[49]).
2. Standing. The claimant had sufficient interest. It was an NGO operating specifically in the fields of local plan-making and climate change, and its engagement after the Inspectors raised concerns about Policy 2 was understandable. The standing test did not require the claimant to be the best-placed potential claimant, nor was it a busybody ([50]-[63]).
3. Interpretation of the WMS. The Inspectors had treated the 2015 WMS and associated NPPG as national policy preventing policies requiring standards above Code for Sustainable Homes Level 4. That was an error of law. The WMS had to be interpreted in its current context and by reference to the mischief addressed. The Deregulation Act amendments had not been commenced, the Government had stated that they would not be brought into force, and later Building Regulations standards exceeded the level referred to in the WMS. The restriction relied upon by the Inspectors therefore no longer made sense and could not rationally operate as a bar on higher local standards ([64]-[79]).
4. Consistency and procedural fairness. The inconsistency ground added nothing to the successful interpretation ground. The procedural-fairness ground failed because the claimant had to establish prejudice, had not participated in the hearing sessions, and the local planning authority had received sufficient information about the potential modifications through the questions and hearings ([80]-[90]).
5. Relief. It was not highly likely that the same outcome would have followed absent the error. The Inspectors’ conclusions linked the national-policy and evidence-base issues, and the error concerning the WMS infected the analysis. Policy 2 might have been retained in whole or in part had national policy been properly understood ([91]-[95]). Ground One therefore succeeded and relief was granted.