Essex planning officers make submissions to Court of Appeal over written ministerial statement on local energy efficiency standards

Submissions have been filed this month on behalf of the Essex Planning Officers Association (“EPOA”) at the Court of Appeal in support of a challenge to the previous government’s written ministerial statement (“WMS”) on local energy efficiency standards.

The Appellant, Rights: Community: Action, claims that the WMS restricts the power of local authorities to set energy efficiency standards in their local plans which exceed the requirements of the Building Regulations 2010 (“the Building Regulations”).

As such, it is argued that the WMS unlawfully interferes with the powers of local authorities conferred by statute (by s.1 of the Planning and Energy Act 2008 (“PEA”)) or otherwise represents a misleading picture of the powers of planning decision makers.

Rowan Clapp of Cornerstone Barristers obtained permission to intervene in the Court of Appeal on behalf of EPOA last month, and drafted written submissions on their behalf.

He said the association’s intervention focuses on three interpretative issues arising from the judgment of Mrs. Justice Lieven in the Court below (R(Rights Community Action Ltd) v SSLUHC [2024] EWHC 1693 (Admin)): 

1. That the judge considered the purpose of s.1 PEA was to prevent an inconsistency of energy standards, when the correct purposive interpretation (enriched by a close reading of Hansard) was to ensure local authorities could set standards which exceeded those in the Building Regulations, in the context of a suite of legislative measures directed at reducing carbon emissions to tackle climate change.  
2. That the judge erred in considering that s.1(5) PEA conferred on the Government a power to constrain the setting of standards in local plans, when the correct interpretation of s.1(5) PEA was to provide that local authorities should ensure their local plan policies are consistent with national policy. In that respect, national policy should be given a broad meaning which encompasses, for example, the NPPF and the policies therein concerning “radical reductions in greenhouse gas emissions” (para 161 NPPF). So understood, it is consistent with national policy for LPAs to set emissions standards exceeding the Building Regulations, which again is frustrated by the WMS.
3. That the judge erred in interpreting s.1(2)(a)-(b) PEA: correctly understood, the provision allows an LPA to select an energy efficiency standard from a number of sources. That choice is frustrated by the WMS which purports to limit LPAs to one energy standard (target emissions rate or ‘TER’).  

Clapp said the case would be of particular concern to those interested in:

1. national and local climate policy,
2. the energy efficiency requirements in the present and future Building Regulations 2010,
3. how the energy efficiency of buildings is measured, and
4. the extent of local plan policies regarding energy efficiency standards.  

A hearing date has been set for 24-25 June 2025.