Environmental Principles in Court: s.19 of the Environment Act 2021

10 July, 2024

On 2 July, the High Court handed down an important judgment: the first to consider s.19 of the Environment Act 2021, which requires a Minister to have due regard to the Environmental Principles Policy Statement when making policy. 

Environmental Principles in Court: s.19 of the Environment Act 2021

On 2 July, the High Court handed down an important judgment: the first to consider s.19 of the Environment Act 2021, which requires a Minister to have due regard to the Environmental Principles Policy Statement when making policy. 

In summary, the Court held that, in promulgating a Written Ministerial Statement, the Secretary of State did not fail to fulfil his duty under s.19(1) Environment Act 2021 to have due regard to the Environmental Principles Policy Statement.

R (Rights Community Action) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 1693 (Admin). 

This case saw a challenge brought to a Written Ministerial Statement of 13 December 2023 entitled “Planning – Local Energy Efficiency Standards Update” (“WMS”). Ground 1 of the challenge alleged that the Defendant failed to fulfil his duty under s.19(1) of the Environment Act 2021 (“EA 2021”) to have due regard to the Environmental Principles Policy Statement (“EPPS”).

This is the first court judgment to address this provision of the Environment Act 2021, and so is of considerable interest to environmental law practitioners.

The WMS

The WMS replaced a 2015 policy which had been successfully judicially reviewed very recently. The WMS sets energy efficiency standards for new homes, and in particular states that the Government “does not expect plan-makers to set local energy efficiency standards for buildings that go beyond current or planned buildings regulations,” and that any planning policies that suggest such local divergent standards should be rejected at examination if they do not have a well-reasoned and robustly costed rationale that ensure [development viability and no prejudice to affordable housing delivery].”

Legal Provisions

s.17 of the EA 2021 requires the Secretary of State to prepare a policy statement on environmental principles, which is a statement explaining how the environmental principles should be interpreted and proportionately applied by Ministers of the Crown when making policy, and how matters will be taken into account. These environmental principles are set out at s.17(5) and include the principle of integrating/incorporating environmental protection into the making of policies; the principle of preventative action; the precautionary principle; the principle that environmental damage should as a priority be rectified at source; and the polluter pays principle. 

In respect of the first of these, the Integration Principle, the current EPPS states:

“Applying the integration principle involves considering whether the policy has the potential to cause a negative environmental effect which could be avoided, minimised or reduced through alterations to the policy in proportion to other policy aims.”

S.28 EA 2021 sets out a process for the drafting and adoption of the Policy Statement. The present EPPS was laid before Parliament and adopted on 21 January 2023.

s.19(1) EA 2021 requires that “A Minister of the Crown must, when making policy, have due regard to the policy statement on environmental principles currently in effect.” This provision, which came into force on 1 November 2023, formed the basis for ground 1 of the challenge, which was that in promulgating the WMS the Secretary of State did not have due regard to the EPPS. 

S.47 EA 2021 sets out various definitions, including that the “making” of policy “includes developing, adopting or revising policy.”

The Court’s Analysis

It was common ground that at the time of promulgating the WMS, the relevant Minister had not had express regard to the EPPS, but (i) an assessment of an earlier version of the WMS having regard to the EPPS had been provided to a predecessor Minister; and (ii) subsequent to promulgation of the WMS an assessment of the WMS against the EPPS had been prepared by officials (Judgment at [6]).

The Claimant’s argument on ground 1 centred around the parallel between the “have due regard” duty in s.19 of the EA 2021, and the similarly worded duty in s.149 of the Equality Act 2010. The s.149 Equality Act duty requires that due regard be had to the need to eliminate discrimination, harassment, victimisation, advance equality of opportunity and foster good relations between those sharing a relevant protected characteristic and those who do not. The case law emphasises that this duty must be exercised in substance, with rigour and with an open mind (Judgment at [23-34]).

At [42], the Court held that the caselaw on the “due regard” duty in section 149 of the Equality Act 2010 was of only limited assistance, given the “very different” statutory context and aims to be achieved. Whereas impact on those with protected characteristics under the Equality Act may “generally be relatively straightforward to set out, the environmental issues as set out in the EPPS will often be very multifaceted and complex.” The Court considered the present WMS to be a case in point: whilst setting higher CO2 standards for new homes may appear to be more environmentally positive, it might have consequences that lead to an environmentally less good ultimate outcome. 

Although the Judge considered that the test applicable to s.149 of the Equality Act as set out in the case of Hotak v London Borough of Southwark [2016] AC 811 requiring the need to undertake consideration with substance, rigour and an open mind was applicable to the EPPS and s.19 EA 2021 duty, the precise approach required turns on the individual facts and the broader purposes of the EA 2021 (Judgment at [43]).

Notwithstanding the distinction drawn between the present case and the s.149 Equality Act duty, the Court relied upon cases dealing with s.149 to hold that failures to have regard at the relevant time can be in appropriate cases remedied later by retrospective consideration. In such a case the retrospective assessment will have to be scrutinised to ascertain whether it meets the duty of conscientious consideration (Judgment at [44]). The Judge was fortified in applying this approach by reference to the fact that s.19 EA 2021, when read with s.47 (set out above), expressly defines the “making” of the policy as including the “reviewing” of the policy (Judgment at [45]).

Having reached that view, the Judge reviewed the retrospective assessment that had been undertaken and found that it was adequate, as it had fairly accepted the possible negative impacts or harm of the policy, and, whilst short, was comprehensive enough for its purposes (Judgment at [47]).

The Judge also rejected the argument that the Defendant had erred in considering the WMS and a related draft policy – the First Homes Standard – together. She held that it was reasonable for the assessment to take account of this draft policy, and to omit to do so would have undermined the attempt to understand the holistic policy approach directed by the EPPS (Judgment at [49-50]).

Comment

As the first case to consider the section 19 EA 2021 duty, this is of interest to environmental law practitioners because it illustrates the approach the Courts will take when asked to scrutinise consideration given by the Government to the EPPS when making policy. It shows the Court taking a proportionate and moderate approach to such scrutiny. The complexity of the objectives in the EA 2021 and the inter-relation of issues in the EPPS evidently led the Court to feel that the appropriate level of judicial scrutiny was less exacting than that applicable for the Equality Act duty that was discussed.

The case is a reminder that the s.19 duty is ultimately about process, not result, and that the principles in the EPPS are guiding principles for policy making, not substantive principles for the review by the court of such policy. Further, as the Defendant submitted in this case, the s.19 duty is underwritten by the principle of proportionality.

It is also a reminder that the statutory provisions in the EA 2021 will be interpreted having regard to the purpose and objects of the statute as a whole, and that the opportunity for read-across from similar wording in other statutory contexts may be limited.

Jonathan Welch is a barrister at Francis Taylor Building, specialising in planning, environmental, infrastructure, and compulsory purchase law. He is ranked by Legal 500 as a rising star in environmental law.

Ned Westaway appeared for the Defendant in this case, but has had no involvement in the drafting of this blog post.

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