High Court Rejects First Claim on the Environmental Principles Duty in Section 19 of the Environment Act 2021

02 July, 2024

The High Court – Mrs Justice Lieven – has today handed down judgment in R (Rights Community Action Ltd) v SSLUHC [2024] EWHC 1693 (Admin), a challenge to the Written Ministerial Statement (“WMS”) of 13 December 2023 on energy efficiency standards in new homes.

High Court Rejects First Claim on the Environmental Principles Duty in Section 19 of the Environment Act 2021

02 July, 2024

The High Court – Mrs Justice Lieven – has today handed down judgment in R (Rights Community Action Ltd) v SSLUHC [2024] EWHC 1693 (Admin), a challenge to the Written Ministerial Statement (“WMS”) of 13 December 2023 on energy efficiency standards in new homes.

The first ground of challenge alleged a breach of s.19(1) of the Environment Act 2021 – i.e. the duty to have due regard to the Environmental Principles Policy Statement (“EPPS”).  The Defendant accepted that by oversight, the EPPS was not considered by the relevant Minister on approving the final version of the WMS.  However, an assessment of an earlier version had been done and a subsequent assessment had also been carried out post-publication.

The judgment addresses first “the correct legal approach to the due regard” duty”, rejecting the argument that it must be interpreted analogously to the duty to have due regard in s.149 of the Equality Act (the public sector equality duty (“PSED”)).  While the Judge acknowledged that the s.19 duty must be applied “with substance, rigour and an open mind”, she held that:

“The two duties are very different, both in terms of the statutory provisions (save for the broad words “have due regard”) and the aims to be achieved” (para.42).

She also held that a failure to address the duty when making the WMS could be remedied later (para.44), relying in part on PSED case law.

On the facts she concluded that the assessment carried out for the WMS complied with the statutory duty.  Notably, it was lawful for the Minister to have regard to wider policy development (the Future Homes Standard) in considering the environmental impacts of the WMS.

Grounds 2 and 3 related primarily to s.1(1)(c) of the Planning and Energy Act 2008.  The Judge held that properly interpreted, the WMS accords with the approach in that provision.  Overall, she held that the WMS does not unlawfully attenuate or emasculate any statutory powers that local planning authorities otherwise have to promote policies on energy efficiency.

Ned Westaway appeared for the Defendant; Mark Westmoreland Smith KC acted for the Defendant at an earlier stage of the proceedings.