decision

R (Rights: Community: Action Limited) v The Secretary of State for Housing, Communities and Local Government - decision

Litigation

Sabin

Sabin Litigation

Filing Year For Action

Rights Community Action, a campaigning NGO, applied for judicial review of a Written Ministerial Statement (WMS) released in December 2023, which advised that local planning authorities should not set energy-efficiency standards for new buildings that exceed those contained in current or forthcoming Building Regulations. Rights Community Action’s position was that local authorities should be able to impose higher energy efficiency standards to reduce GHG emissions from buildings. 

IN THE HIGH COURT

The government’s rationale was that differing local standards create complexity and cost, undermine economies of scale and could adversely affect housing supply. Rights Community Action challenged the lawfulness of the WMS on three grounds: 

1.        That the Secretary of State failed to fulfill his duty to have due regard to the Environmental Principles Policy Statement under s 19(1) of the Environment Act 2021. 
2.        That the WMS unlawfully purported to restrict the exercise by local authorities of statutory powers under s 1 of the Planning and Energy Act 2008 and under s 19 of the Planning and Compulsory Purchase Act 2004). 
3.        That it mis-presented the legal position of decision-makers (particularly planning inspectors). 

Justice Lieven Dbe rejected all grounds of challenge, on July 2, 2024. 

IN THE COURT OF APPEAL 

The claimants appealed. The core issue on appeal was whether the Secretary of State had complied with the environmental principles duty in section 19 of the Environment Act 2021 (s.19 EA 2021). The claimant argued that the Secretary of State had failed to have “due regard” to the Environmental Principles Policy Statement (EPPS) when the WMS was adopted in December 2023, and a later assessment carried out in February 2024 could not retrospectively cure that failure. As a separate ground, the claimant argued that the WMS unlawfully restricted local authorities’ statutory powers to set higher local energy-efficiency standards under the Planning and Energy Act 2008.

A bench consisting of Lord Justices Dingemans, Lewis, and Holgate rejected the appeal on July 25, 2025. On the s19 duty, the Court agreed that there was a failure to have regard to the EPPS at the moment the WMS was adopted, but held that this defect could subsequently be cured by a legally adequate assessment undertaken in February 2024. The Court emphasized that s.19 imposes a procedural duty; what matters is that the policy-making process as a whole demonstrates due regard, not that regard is shown at a single, fixed point in time. This case was the first time that the s 19 duty was considered in court. As such, this judgment set an important precedent regarding how the Environmental Principles Policy Statement should be applied.  

On the challenge to the lawfulness of the WMS itself, the Court held that the WMS does not override the statutory powers of local planning authorities under the Planning and Energy Act 2008. As such, local planning authorities remain entitled to adopt local plan policies that require higher energy efficiency standards, but only where such departures are supported by local circumstances and viability evidence. 

The claimants have applied to the UK Supreme Court for permission to appeal.