Rights Community Action v. Secretary of State for Levelling Up, Housing and Communities (Action Plan for Salt Cross Garden Village)

In April 2023, rights and climate collective Rights: Community: Action (“RCA”) issued a legal challenge to the decision of the government’s Planning Inspectors. The Planning Inspectors had reviewed the West Oxfordshire District Council’s Area Action Plan (“AAP”) for a planned new garden village in Salt Cross. The AAP included a draft policy (“Policy OS2”) which set out very detailed requirements for achieving net zero-carbon development. The Inspectors questioned whether the policies in the AAP relating to net zero carbon development, zero waste, green infrastructure, and protecting and enhancing environmental assets were justified by the evidence base and consistent with national policy in the form of a written ministerial statement (“the WMS”) dating from 2015. The WMS had included wording to the effect that local planning authorities should not set conditions requiring energy performance beyond level 4 of the (now defunct) Code for Sustainable Homes. They also said the standards demanded by the AAP are significantly higher than those required in the 2013 Building Regulations. The Claimant and the Council disagreed with the Inspectors, although the claim was brought by the Claimant only, and the Council did not appear in the hearing. There were three substantive grounds. 1. Whether the Inspectors had misinterpreted the WMS; 2. Whether the Inspectors had failed to deal properly with inconsistencies in their approach to the WMS when compared to the approaches taken by other Inspectors; 3. Whether there was procedural unfairness arising from the alleged failure of the Inspectors to explain their reasons for finding Policy OS2 to be unsound. GROUND 1 With respect to ground 1 the dispute focused on the approach to be taken to the WMS in circumstances where it had not (at the date of the hearing) been formally withdrawn but had been overtaken by events. The Claimant relied on the part of the WMS that states: “[L]ocal planning authorities will continue to be able to set and apply policies in their Local Plans which require compliance with energy performance standards that exceed the energy requirements of Building Regulations until commencement of amendments to the Planning and Energy Act 2008 in the Deregulation Bill 2015.” The Claimant stated, correctly, that the amendments that were to be brought in by the 2015 Bill (now Act) have not been brought into effect, and the Government has now indicated that it does not intend to do so. Therefore the WMS could not be interpreted to proscribe local plan policies that exceed the Building Regulations, because the premise of the policy no longer exists. The Claimant submitted that this must be the correct interpretation because no other interpretation now makes any sense of the policy position. The Court agreed with this and found that the WMS has to be interpreted taking into account this change since the date of its drafting. The Court noted that amongst other inconsistencies, part of the difficulty in this case is that national policy is not defined in the statute, and can in practice be promulgated in different ways, and unfortunately can and sometimes is, contradictory. The reality here is that the Government has issued documents and statements that pull in different directions, and that has made the interpretation of “policy” a difficult task. The Court found at para 76: In my view, the Inspectors’ interpretation neither makes sense on the words, seen in their present context, or of the mischief to which it was applying. To interpret the WMS so as to prevent or restrict the ability of the LPA to set a standard higher than Level 4 is plainly wrong in the light of subsequent events. For this reason, the Inspectors erred in law in their approach by finding that Policy 2 of the AAP was inconsistent with the WM. GROUND 2 The Claimant submitted that the Inspectors Report is inconsistent with the Reports of the Inspectors in Bath and North East Somerset and Cornwall. The Court did not agree with the reasoning put forward in the Inspectors Report which stated that the different approach turned on the findings relating to the specific evidence base in the other Plans. Rather, the Court found that a proper reading of the Reports shows that there was a completely different approach to the WMS, quite separately from any different evidential findings. GROUND 3 The Claimant alleged that the Inspectors approach to Policy 2 was procedurally improper because they failed to explain the nature of their concerns to the Local Authority either before or during the hearing sessions. They only did so when they presented their Report, by which stage it was too late for the Local Authority or the Claimant to influence the conclusions. However, the court agreed with the SoS that the Claimant did not participate in the hearings and it was at those hearings that Policy 2 was explored. The Claimant’s failure to understand the Inspectors’ reasons, and thus alleged prejudice, arose from the fact it had not been involved in the earlier stage, not from any lack of fairness in the process. Overall, the Court found that, the Inspectors error in respect of the WMS infected the entirety of their analysis. If they had properly understood and applied national policy, then they might well have reached a different set of conclusions on Policy 2, whether in part or on its entirety. In February 2024, the High Court of Justice (King's Bench Division) allowed the claim to proceed. The court allowed Ground 1. The Claimant was successful.