Section 1 of the Planning and Energy Act 2008 gave local planning authorities the power to set policies for energy efficiency which exceeded building regulations requirements. A written ministerial statement issued in 2015 stated that local planning authorities would continue to be able to set and apply policies in their local plans which required compliance with energy performance standards exceeding the energy requirements of building regulations until the commencement of proposed amendments to the Planning and Energy Act 2008 in the Deregulation Bill, after which their ability to do so would be restricted to a specific level. A summary of the ministerial statement was included in the National Planning Policy Guidance. The local planning authority submitted to the Secretary of State for independent examination under section 20 of the Planning and Compulsory Purchase Act 2004 an area action plan, the core objective of which was to design buildings fit for the future, mitigating the area’s impact on climate change by achieving zero-carbon development through ultra-low energy fabric and 100% use of low and zero-carbon energy, with no reliance on fossil fuels. The inspectors indicated that policy 2 was not sound, being neither consistent with national policy nor justified, whereupon the local planning authority, in accordance with section 20(7C) of the 2004 Act, requested that the inspectors should recommend any main modifications necessary to rectify the matters which they considered would otherwise make the area action plan unsound and thus incapable of being adopted. In the consultations which followed, the claimant, a non-governmental organisation involved in community planning, in particular in relation to the formulation of local development plans, became involved in the examination process and submitted a detailed consultation response. In the final report, published on 1 March 2023, the Secretary of State’s examining inspectors found that the detailed net zero policies in policy 2 of the plan were not sound, amounting to a significant uplift on the Building Regulations 2013, and that the approach in policy 2 therefore conflicted with national policy set out in the ministerial statement, which they considered remained an extant expression of national policy. One of the inspectors’ recommended main modifications was to substitute the wording of policy 2 to introduce the need for an ambitious approach to the use of renewable energy, sustainable design, construction methods and energy efficiency but without the specific, stringent requirements which they had found were neither consistent with national policy nor justified. The claimant brought a claim for judicial review challenging the inspectors’ alleged misinterpretation of the ministerial statement on the grounds, inter alia, that the premise of the policy no longer existed because the amendments to the 2008 Act, which would have constrained the local authorities’ powers under section 1 of the 2008 Act, had not been, and the Government had indicated that they would not be, brought into effect. The Secretary of State submitted, inter alia, that the inspectors had only made a “recommendation” and not a “decision”, so that there was no justiciable decision, and that the claimant lacked standing to bring the claim as there was an obviously better placed claimant for the judicial review, namely the local planning authority.
On the claim for judicial review—
Held, claim allowed in part. (1) The case law showed that the court’s jurisdiction to consider a judicial review depended very much on the particular statutory scheme and the particular facts. While the language of the Planning and Compulsory Purchase Act 2004 was that the inspector made a “recommendation”, it was a quite different scheme from that for a planning decision under section 77 of the Town and Country Planning Act 1989 and recommendations of a planning inspector made thereunder. In the latter situation, the Secretary of State had complete discretion as to whether he accepted the recommendation or not, subject to normal principles of public law. In contrast, under section 23 of the 2004 Act, the local planning authority’s discretion was fundamentally curtailed. It could choose not to accept the recommendations for modifications to a development plan but if it did the entire plan would fall. The Secretary of State had failed to engage with the reality, rather than the nomenclature, of the 2004 Act and the claim was justiciable (paras 38, 42–44, 47–49).
(2) The test for standing in judicial review was simply whether the claimant had sufficient interest in the matter to which the application related. In the present case, the matter was plainly the inspectors’ recommendation which had emerged from the area action plan process, in which the claimant had engaged albeit only in the latter stage, which was understandable and justifiable as the local planning authority had been pursuing a plan which accorded with the claimant’s aims. The claimant had sufficient interest in the matter pursuant to section 31(3) of the Senior Courts Act 1981 and had standing to bring the claim. The Divisional Court had not sought to create a new test for standing of whether there was a “better placed claimant”. Such a test would be a radical tightening of the rules in standing, that being a long step from a requirement that a claimant was not a “busybody” (someone who interfered in something with which he had no legitimate concern). In any event, the claimant, being an organisation with the specific aim, relevant to the case, of addressing the climate crisis through the planning system, and in particular by monitoring the work being done by local planning authorities through their development plan documents, met that test (paras 52, 58–63).
(3) Contrary to the Secretary of State’s contention that the inspectors should be assumed to have understood national policy, that they had understood that the ministerial statement had not proscribed policies from exceeding the building regulations and that they had simply applied the policy as a matter of judgment, the present case was not a question of policy application but one of policy interpretation for the court. On a correct reading of the report the inspectors had been interpreting the statement and the planning policy guidance by stating that policies should be not used to set conditions above a specific level and that was why they had said the approach in policy 2 of the area action plan conflicted with the national policy set out in the ministerial statement. The inspectors’ interpretation neither made sense on the words, seen in their present context, nor of the mischief to which it was applying. To interpret the ministerial statement so as to prevent or restrict the ability of the local planning authority to set a standard higher than the specific level was plainly wrong in the light of subsequent events. Thus, the inspectors had erred in law in their approach by finding that policy 2 of the area action plan was inconsistent with the ministerial statement (paras 68, 73, 74, 76–79).
Alex Goodman KC and Alex Shattock (instructed by Leigh Day) for the claimant.
Mark Westmoreland Smith (instructed by Treasury Solicitor) for the Secretary of State.
Charles Banner KC (instructed by Ashurst LLP) for the developer, as the second interested party.
The local planning authority, as the first interested party, did not appear and was not represented.