Introduction and background
The Town and Country Planning Association (TCPA), the Good Homes Alliance (GHA) and a collaboration of industry organisations have voiced concern over the 2023 Written Ministerial Statement (WMS) on Local Energy Efficiency Standards, which seeks to constrain the ability of local plans to set policies for net zero new homes. The WMS was challenged in the High Court by Rights Community Action, but the case was dismissed, meaning the WMS remains current government policy.
In the guest blog below, Estelle Dehon KC of Cornerstone Barristers explains why the WMS should not be interpreted as an absolute constraint on local planning authorities’ powers to set energy efficiency policies that go beyond building regulations. This is following pre-action correspondence between DLUHC and Cornerstone Barristers, on the instruction of an anonymous coalition of Local Planning Authorities, in which the former Secretary of State for Levelling Up, Housing and Communities confirms the WMS should be read as a material consideration which does not override legal obligations and rights of local authorities.
Neither the current Building Regulations nor proposals for the Future Homes Standard go far enough to meet our climate commitments (see GHA led response to the Future Homes Standard), particularly in regard to the proposed fabric energy efficiency for new buildings. Therefore, the opportunity to set more ambitious policies in local plans is an important avenue for local authorities to meet their carbon reduction commitments.
The following guest blog has been written by Estelle Dehon KC of Cornerstone Barristers, interpreting the former Secretary of State’s response to pre-action correspondence on the 13 December WMS. Estelle acted on behalf of a coalition of local authorities, and the correspondence represents the position of the Secretary of State in prospective proceedings against the authorities. Although the authorities did not take forward a legal challenge, the correspondence provides helpful clarification about how the status of the WMS should be interpreted, as Estelle explains below.
Further background and resources on this topic are available here.
Guest Blog
Estelle Dehon KC of Cornerstone Barristers
The former Secretary of State for Levelling Up, Housing and Communities officially clarified in pre-action correspondence with a group of local authorities that the Written Ministerial Statement “Planning – Local Energy Efficiency Standards Update” (the 2023 WMS) does not “prevent local authorities from exercising their power to prescribe policies which go beyond the Building Regulations under section 1 of the” Planning and Energy Act 2008 (the 2008 Act) and that, “in the context of decision making, the 2023 WMS is a material consideration and does not purport to be any more than that.”
The Secretary of State’s clarification was very plain: the 2023 WMS “does not restrain local planning authorities from applying development plan policies or exercising their section 1 powers.”
Plan making
The Secretary of State made clear that the 2023 WMS amounts to national policy on “how to create policies that go beyond current or planned Building Regulations which would in the Government’s view meet the reasonable requirement included in section 1 of the 2008 Act.” This clarification means that the Secretary of State considered the stipulation in the 2023 WMS that the additional requirement is expressed as a percentage uplift of a dwelling’s Target Emissions Rate (TER) calculated using a specified version of the Standard Assessment Procedure (SAP) is just one of the ways such policies can be considered reasonable. Other metrics can reasonably be used and can pass examination if they are supported by an evidence base that justifies their viability.
This is an important clarification. While the 2023 WMS is written in unqualified and trenchant terms (stating policies “should be rejected at examination” if they are not expressed in a specific way, the Secretary of State requires the 2023 WMS to be “[r]ead fairly and as a whole”, which means that policies expressed in different terms can pass examination if they are reasonable. Local authorities retain their full powers under section 1 of the 2008 Act and must also still comply with their duties under section 19(1A) of the Planning and Compulsory Purchase Act 2004 (the 2004 Act).
Decision-taking
On decision-taking, the Secretary of State has clarified that the 2023 WMS is no more than a material consideration. Local authorities retain the powers and remain subject to the duties in section 38(6) of the 2004 Act and section 70(2) of the Town and Country Planning Act 1990 (the 1990 Act). Accordingly, although the language of the 2023 WMS states that plan policies that go beyond current or planned building regulations “should be flexibly applied”, this is not a requirement, but is only a material consideration alongside all other material planning considerations.
How the clarification was made
The wording of the 2023 WMS has caused concern to a number of local planning authorities, who fear that it muddies the waters for fulfilling primary statutory powers and obligations: on plan-making, the power to set local energy efficiency policies and the duty to have policies designed to secure that development contributes to the mitigation of climate change; and on decision-taking, the obligation to determine planning applications in accordance with the development plan unless material considerations indicate otherwise. The local authorities felt there was a danger of misinterpretation of the WMS by planning inspectors and other stakeholders and a risk that valuable time and cost might be wasted at local plan examinations.
The local authorities wrote formally to the Secretary of State on 6 February 2024, via a legal pre-action letter. They asked the Secretary of State to confirm, explicitly, in his response that the intention of the 2023 WMS was not to countermand or frustrate the effective operation of the relevant statutory provisions, and that it cannot and should not be applied in a way that countermands or frustrates section 1 of the 2008 Act and section 19(1A) of the 2004 Act, and/or section 38(6) of the 2004 Act and section 70(2) of the 1990 Act.
On 19 March 2024, the Secretary of State responded. This PAP Response letter represents the Secretary of State’s considered response, on legal advice, to any question raised. As it is open correspondence, it can be made public. The Secretary of State gave the clarifications set out above, including stating that the 2023 WMS “does not restrain local planning authorities from applying development plan policies or exercising their section 1 powers.”
On 10 May 2024, the local authorities replied, acknowledging the Secretary of State’s clarification. The local authorities stated that, in light of the clarification and the fact that another judicial review claim challenging the lawfulness of the 2023 WMS had been granted permission to proceed, they had decided not to pursue their own claim, despite considering that other grounds of challenge raised in their pre-action letter remained cogent.
The full course of correspondence is available here.
End of guest blog
