Rights Community: Action Limited, R (on the application of) v The Secretary of State for Housing, Communities and Local Government

A Minister's duty to have due regard to environmental principles applies throughout the making of policy, including development, formulation of options and adoption. A later, legally adequate assessment does not cure or retrospectively validate an earlier breach, but may make declaratory or quashing relief inappropriate. The assessment must address relevant principles in substance, with rigour and an open mind, proportionately to the policy and its environmental effects. Under the Planning and Energy Act 2008, local standards exceeding building regulations must fall within standards referred to in national regulations or policy. The draft Future Homes Standard met that description. The Written Ministerial Statement therefore did not unlawfully restrict local planning powers or distort the statutory planning scheme. The appeal was dismissed.

The appellant sought judicial review of a Written Ministerial Statement concerning local planning policies imposing energy-efficiency standards exceeding building regulations. It alleged breach of the duty under section 19 of the Environment Act 2021 and unlawful restriction of powers under section 1 of the Planning and Energy Act 2008 and the Planning and Compulsory Purchase Act 2004. Lieven J refused relief in [2024] EWHC 1693 (Admin), reported at [2025] PTSR 135. The appeal concerned the legal effect of a later environmental-principles assessment and the proper interpretation of the statutory power to set higher local standards.

Appeal dismissed unanimously. The court rejected both grounds of appeal.

1. The duty under section 19(1) of the Environment Act 2021 applies at several stages of making policy, including development, formulation of policy options and adoption. The absence of any regard to the EPPS when the WMS was approved in December 2023 was therefore a breach.
2. A later compliant assessment does not cure or retrospectively validate that breach. However, where a Minister reconsiders the policy before the judicial review hearing, the court examines the adequacy and good faith of the later assessment, together with the surrounding circumstances, when deciding whether declaratory or quashing relief is appropriate. This approach was consistent with West Berkshire at [2016] EWCA Civ 441.
3. The duty requires consideration in substance, with rigour and with an open mind, of the relevant environmental principles. It does not require a particular outcome. The weight given to relevant matters is for the Minister, subject to ordinary public-law controls. The scope and intensity of the duty are fact-sensitive and proportionate to the policy and its environmental effects, as indicated by Hotak at [2015] UKSC 30.
4. The February 2024 assessment was undertaken in good faith, substantially reflected the earlier assessment, recognised the potential for greater environmental benefits from higher local standards, and balanced those benefits against housing supply, viability and affordability. It was not merely a rearguard exercise. Taking the draft Future Homes Standard into account was appropriate because the WMS was an interim policy intended to operate until that standard was adopted.
5. Section 1(1)(c) read with section 1(2) of the Planning and Energy Act 2008 permits a local planning authority to select an energy-efficiency standard exceeding building regulations only where the standard falls within the ambit of standards referred to in national regulations or policy. The WMS accordingly permitted standards up to the level of the draft Future Homes Standard. The court did not need to decide whether a higher standard could alternatively derive from section 19 of the Planning and Compulsory Purchase Act 2004.
6. National planning policy cannot displace or distort the statutory planning scheme. Previously adopted development-plan policies remained part of the statutory development plan, and the WMS's provision for flexible application in individual decisions was consistent with section 38(6) of the Planning and Compulsory Purchase Act 2004. The argument that section 1 of the 2008 Act was emptied of content was rejected.
7. The statutory language was clear, so the first condition for resort to Hansard under Pepper v Hart was absent. The ministerial statement was in any event only a paraphrase of the legislation. The court also held that deciding whether further inquiry was needed under section 19 was a matter for the policy-maker, subject to irrationality. The February assessment complied with the duty and no relief was justified.

• Court of Appeal (Civil Division) dismissed the appeal on 25 July 2025.
• High Court of Justice, King’s Bench Division, Planning Court Lieven J refused the application for judicial review on 2 July 2024: [2024] EWHC 1693 (Admin); [2025] PTSR 135.