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

The Court of Appeal dismissed the challenge to the Secretary of State's Written Ministerial Statement of 13 December 2023 (the 2023 WMS). The key legal principles decided were: the duty in s.19(1) of the Environment Act 2021 to have "due regard" to the Environmental Principles Policy Statement (EPPS) must be performed "in substance, with rigour and with an open mind" and is fact-sensitive; a later EPPS assessment carried out before a hearing can be examined for legal adequacy and, if adequate, may mean no relief should be granted despite an earlier breach; and the 2023 WMS did not unlawfully cut across the statutory power in s.1 of the Planning and Energy Act 2008 (PEA 2008) or displace the statutory planning scheme including the presumption in s.38(6) of the Planning and Compulsory Purchase Act 2004 (PCPA 2004).

The court held that the February 2024 EPPS assessment was sufficiently detailed, undertaken in good faith and proportionate to the policy at issue; it identified the relevant environmental principles, considered the marginal environmental benefits of higher local standards against potential harms to housing delivery and supply chains and therefore discharged the statutory duty for the purposes of judicial review. The court also held that s.1 PEA 2008 limits local standards to standards set out or endorsed in national regulations or policy and that the WMS was consistent with that statutory scheme.

Background and parties: Rights: Community: Action Limited (an NGO) sought judicial review of the Secretary of State's 13 December 2023 Written Ministerial Statement "Planning – Local Energy Efficiency Standards Update". The appellant sought quashing or a declaration of unlawfulness. The OEP, Green Alliance and Essex Planning Officers' Association intervened. The claim was dismissed by Lieven J ([2024] EWHC 1693 (Admin)) and the appellant appealed to the Court of Appeal.

Nature of the claim / relief sought:

• Quashing order and/or declaration that the 2023 WMS was unlawful.

Legal and factual issues before the court:

• Ground 1: Whether the Minister breached s.19(1) Environment Act 2021 by failing to have due regard to the EPPS when approving the 2023 WMS and whether a subsequent EPPS assessment could remedy that breach for the purposes of judicial review.
• Ground 2: Whether the 2023 WMS unlawfully curtailed local planning authorities' statutory powers under s.1 Planning and Energy Act 2008 to require energy efficiency standards exceeding building regulations and whether it distorted the statutory planning framework including s.38(6) PCPA 2004.

Procedural posture: Appeal from the High Court (Planning Court) where Lieven J refused the application for judicial review; this Court heard argument and delivered judgment on 25 July 2025 ([2025] EWCA Civ 990).

Court's reasoning (concise):

• On s.19 EA 2021: the duty to have "due regard" applies across stages of "making policy" (developing, adopting, revising). A failure to have due regard at adoption is a breach, but if, before hearing, a Minister reconsiders with an EPPS assessment the court must judge the later assessment's legal adequacy. The court focused on whether the February 2024 assessment was carried out in substance, with rigour and good faith and proportionate to the policy. It concluded it was: it identified relevant environmental principles (integration and prevention), acknowledged potential environmental gains from local higher standards, assessed marginal benefits using departmental analysis, and balanced those benefits against risks to housing supply and affordability. Given the fact-sensitive and discretionary nature of the assessment, the Secretary of State's policy choice was not amenable to public law attack.
• On s.1 PEA 2008: s.1(2) constrains local standards to those set out or endorsed in national regulations or national policy; the WMS permissibly allowed local standards up to the level of the draft Future Homes Standard (FHS) and provided criteria for any higher local standard to be tested at plan examination. The WMS did not unlawfully displace or emasculate s.1 or the statutory planning scheme, nor did it unlawfully override the development plan presumption in s.38(6) PCPA 2004.

Subsidiary findings: the court rejected arguments that the February 2024 assessment was an impermissible "rearguard" exercise or that taking account of an inchoate national policy (the draft FHS) was improper; the court emphasised proportionality and the policy-maker's margin of judgment.

Appeal dismissed. The Court held that (i) although there was an initial breach of s.19 EA 2021 when the 2023 WMS was approved without an EPPS assessment, the subsequent EPPS assessment of February 2024 was carried out in substance, with rigour and good faith and was proportionate to the policy at issue so that no relief should be granted; and (ii) the 2023 WMS did not unlawfully cut across s.1 of the Planning and Energy Act 2008 nor displace the statutory planning framework, because s.1(2) confines local energy efficiency standards to standards set out or endorsed in national regulations or policy and the WMS operated within that framework.

Appeal from the High Court of Justice, King’s Bench Division, Planning Court (Lieven J) [2024] EWHC 1693 (Admin), where the application for judicial review of the 13 December 2023 Written Ministerial Statement was refused. Appeal determined in the Court of Appeal [2025] EWCA Civ 990.