Context
Local planning authorities wishing to set energy efficiency standards for new homes that go beyond building regulations have, in recent years, faced a complex and often contradictory policy context from national government.
The aim of this page to is bring together resources for local authorities to help navigate this so they can consider their options in relation to setting policies for net zero homes and buildings within their local plans.
The TCPA’s have published an updated statement on this issue (July 2024), which is available to view here.
Our previous statement, dated January 2024, is available here.
Why are local authorities setting planning policies for net zero building?
Many local authorities have developed climate action plans to demonstrate how they will deliver against national and local net zero carbon targets. The planning system provides an important lever to support emissions reductions in sectors responsible for high levels of carbon at a local level, including transport, energy and buildings. Within the context of urgent challenges such as decarbonising transport and retrofitting existing buildings, ensuring that new buildings are built to high standards of energy efficiency (so that they do not rely on carbon for their operation) is an easy win.
However, both existing building regulations, and planned changes through the Future Homes Standard, will fail to deliver net zero homes because:
- The methodology for reducing % carbon emissions does not incentivise energy efficiency in buildings as a first principle – meaning new homes can still be built to be draughty and inefficient;
- There is an evidenced ‘performance gap’ with the current approach, meaning that buildings use more energy in operation than the design model suggests;
- The building regulations consider regulated energy only, meaning that ‘unregulated’ energy (from plug loads) is not factored into the energy requirement;
- The Future Homes Standard is reliant on grid decarbonisation, and therefore commits to ‘net zero ready’ homes, rather than ‘net zero’ homes. This is a risky strategy, particularly in areas of high development where grid capacity is already a challenge. Also, as the grid decarbonises, carbon emissions become a less reliable measurement for building performance; and
- Using targets based on % reductions on building regulations creates moving goalposts, as these are regularly updated.
In response, local authorities and a consortium of technical experts (through LETI) have developed an evidenced policy approach using energy based metrics, which are designed to achieve net-zero buildings through securing highly energy efficient buildings and applying an energy hierarchy (so that any residual energy needs are met by onsite renewables). Three local authorities have successfully adopted such policies (Bath and North East Somerset, Cornwall and Central Lincolnshire). Many other authorities (we think up to 70) have invested considerable expertise and resources in evidence to support energy based metrics policies for their local plans (see table below).
Bioregional have published a blog which considers the performance of net zero buildings policies where they have been adopted, and finds that they have not hindered housebuilding in these authorities.
Current policy context
13 December 2023 Written Ministerial Statement
Published on 13 December 2023, the WMS on ‘Planning – Local Energy Efficiency Standards Update’ replaced the 2015 WMS which was found unlawful through a successful legal challenge (see below). The 13 December 2023 WMS represents current national policy, and seeks to constrain local authorities in setting energy efficiency standards that go beyond current building regulations, and by directing local authorities, where they do set higher standards, to express these ‘as a percentage uplift of a dwelling’s Target Emissions Rate (TER) calculated using a specified version of the Standard Assessment Procedure (SAP).’
Through the inclusion of this, the WMS expresses a preference for policies to utilise the metrics used within building regulations, rather than energy based metrics.
Legal Challenge to the WMS
In June 2024, a legal challenge against the 13 December 2023 WMS was heard in the High Court. This challenge was bought by community group, Rights Community Action, and supported by the Good Law Project. The challenge was made on three grounds:
- That the minister failed to have due regard to the environmental principles policy statement as required through Section 19 of the Environment Act 2021 when making the policy.
- The WMS seeks to unlawfully constrain powers conferred to LPAs by statute: Section 1 of the Planning and Energy Act 2008 expressly allows LPAs to set energy efficiency requirements that exceed building regulations.
- The WMS also misdirects decision makers in relation to the statutory presumption in favour of the development plan.
The legal challenge was unsuccessful on all three grounds, and the group are seeking to appeal the decision. The court judgement is available to read here.
An update on the high court case from RCA is available here.
Local authority pre-action correspondence with the Secretary of State
As well as the legal challenge above, a coalition of local authorities also engaged in pre-action correspondence with the Secretary of State regarding the legality of the 13 December WMS. This correspondence is available below, via Estelle Dehon KC, acting on behalf of the authorities (which remain anonymous). The correspondence is helpful because it explicitly clarifies the status and intent of the WMS, which is to be treated as a material consideration, which provides an opportunity for local authorities to set policies that aren’t in accordance with the WMS where local evidence and circumstances justify this. This is explained further in a guest blog by Estelle Dehon KC, available here.
Pre-action correspondence:
The TCPA’s response to the 13 December 2023 WMS
The TCPA has published an updated statement in response to the court’s dismissal of the judicial review of the WMS. The aim is to provide some clarity and advice to local authorities where local evidence and circumstances demonstrate that energy based metrics policy is the most sound approach, but the 13 December WMS is creating concern about taking this forward.
The TCPA sent a joint letter, alongside over fifty other organisations and local authorities, to the Secretary of State in February 2024.
In January 2024, the TCPA published this statement in response to the WMS.
As well as a short video statement from the TCPA’s Director of Policy, Hugh Ellis:
Open legal advice
Essex County Council have published open legal advice by Estelle Dehon KC at Cornerstone Barristers. The open advice document establishes the legal justification for requiring higher targets for energy performance standards for development than the national baseline and can be relied upon by local planning authorities in open fora, such as public inquiries and local plan examinations.
Further legal advice published by Etude
Etude is a leading sustainability consultant working with a number of local authorities on their local plan evidence base for climate change mitigation policies. Etude have investigated whether the December 2023 WMS means local authorities can still set higher environmental standards with different metrics than those used in Part L of Building Regulations.
Following legal advice, Etude have found that policies using energy metrics can be bought forward. The legal advice has been made available via this webpage.
Salt Cross Judicial Review and the 2015 Written Ministerial Statement
Prior to the publication of the 13 December 2023 WMS, policies in local plans that set energy efficiency targets beyond building regulations were being treated inconsistently by the Planning Inspectorate. This was because of confusion caused by a previous Written Ministerial Statement from March 2015, the status of which was being interpreted differently by different planning inspectors.
In the case of the Salt Cross Area Action Plan in West Oxfordshire, the Inspectorate’s decision to water down the plan’s net zero buildings policy was successfully challenged by Rights: Community: Action in April 2023.
A copy of the judgement (issued in February 2024) on this case is available here.
Local Authorities policy table
The table below brings together a list of local authorities that we understand are seeking to set higher energy efficiency standards than building regulations in their emerging local plans, and will therefore be affected by the WMS. The list is not exhaustive as it does not contain many authorities at early stages of plan review.
If you would like to receive updates on this policy topic, please email Clémence.dye@tcpa.org.uk to request being added to our mailing list.
