The claim concerned the lawfulness of policy in a December 2023 Written Ministerial Statement (“WMS”) that gave guidance to local planning authorities on energy efficiency policies, among other things, setting criteria for circumstances where such policies should exceed standards in Building Regulations.

The Minister who approved the final version of the policy was mistakenly not made aware of the duty in section 19 of the Environment Act 2021 to have “due regard to the policy statement on environmental principles”, which came into force on 1 November 2023.

While there had been some earlier consideration of the Environmental Principles Policy Statement (“EPPS”), the Secretary of State also addressed the omission by undertaking a subsequent EPPS assessment in February 2024.  The Appellant argued that such ‘rearguard’ action was unlawful, and in any event that the assessment was legally inadequate.  As this was the first case considering one of the key environmental governance duties in the Environment Act 2021, the Office for Environmental Protection and Greener Alliance were granted permission to intervene in the Court of Appeal. 

The Essex Planning Officer’s Association was also granted permission to intervene in relation to the second ground in the case, which concerned the compatibility of the WMS and section 1(1)(c) of the Planning and Energy Act 2008.

The Court of Appeal (Holgate LJ with whom Dingemans and Lewis LJJ agreed) dismissed the appeal and upheld the conclusions of Lieven J in the High Court.

Holgate LJ emphasised that the weight and extent of the duty to have due regard are highly fact sensitive ([12] and [93]).  However, there was nothing to prevent the section 19 duty being satisfied by a subsequent assessment ([86]-[88] and [110]) despite an admitted failure earlier in the process.

The Court also made the following general points:

• The duty applies at a number of stages in the “making” of policy [85]
• The duty must be carried out “in substance, with rigour and with an open mind” [93]
• The proportionality principle in ss.17(2) and 19(2) only requires an assessment that is proportionate and appropriate to the issues raised [94] and [110]

On the facts, the Court held that the subsequent EPPS assessment was legally adequate and could not be characterised as merely ‘rearguard’ action.  It was relevant that there had been prior consideration of the EPPS.  There was nothing to prevent the EPPS assessment of the WMS having regard to the draft Future Homes Standard – a separate, but related, policy.

On ground 2, the Court noted that there was a tension in the drafting of section 1(1)(c) and (2) of the Planning and Energy Act 2008 ([78]-[79]), but however that tension fell to be resolved, the WMS could not be said to unlawfully cut across the provision.

Ned Westaway acted for the Secretary of State.