The government is facing a legal challenge against its “unnecessarily draconian” rules which limit the ability of local councils to set their own energy efficiency standards.
The challenge is being brought by Rights Community Action, supported by Good Law Project, who claim the government is “undermining local authority powers in an unlawful fashion has failed to properly apply its own Environment Act 2021”.
The challenge relates to a ministerial statement issued by the Department for Levelling Up, Housing and Communities (DLUHC) in December 2023.
The statement – prepared by DLUHC under secretary of state Baroness Penn – prohibits local councils from setting energy efficiency standards above those outlined in building regulations.
It states that “local plans must be consistent with national policy” and adds that “any planning policies that propose local energy efficiency standards for buildings that go beyond current or planned buildings regulation should be rejected at examination”.
The statement replaces rules set in 2015 which effectively allowed local councils to set their own energy efficiency standards for new build properties above the national minimum requirement. In the subsequent years, local authorities in Bath, North East Somerset, Cornwall and Central Lincolnshire have set their own standards beyond the national requirement.
The ministerial statement adds: “There has been a long-standing debate within planning about both the best method and body to set energy efficiency and environmental standards.
“For a number of years, the plans of some local authorities have sought to go further than national standards in terms of such efficiency for new-build properties.
“Equally, there is a legitimate consideration for the government to want to strike the best balance between making progress on improving the efficiency and performance of homes whilst still wanting to ensure housing is built in sufficient numbers to support those who wish to own or rent their own home.”
It concludes: “The government does not expect plan-makers to set local energy efficiency standards for buildings that go beyond current or planned buildings regulations.
“The proliferation of multiple, local standards by local authority area can add further costs to building new homes by adding complexity and undermining economies of scale.”
The statement was met with condemnation by local leaders and campaigners alike. A joint letter sent to Levelling Up secretary Michael Gove earlier this month describes the rule change as “unnecessarily draconian” and warns that it “will have a severe impact on the many local authorities who have invested significant sums to develop much more effective energy performance standards in local policy”.
The letter – signed by The Town and Country Planning Association (TCPA), alongside 12 organisations and over 50 local authorities – adds: “The contains a number of clear factual errors including the assertion that local authorities are adopting a confusing array of differing standards. This is entirely false. Local authorities have been working collaboratively to establish consistent policies using absolute energy metrics.”
It adds: “We most strongly urge government to clarify the policy in the by making clear that local planning authorities can adopt standards in local plans which utilise absolute energy metrics and go beyond current and future Building Regulations so long as such policy is robustly evidenced and viable.
“Government must not prescribe approaches which both undermine their own carbon reduction targets and prevent the innovation in policy and technology which this nation urgently needs to tackle the climate crisis.”
Lawyers for Rights Community Action and the Good Law Project have now issued a pre-action protocol letter to DLUHC setting out the grounds of their legal challenge.
Naomi Luhde-Thompson, director of Rights Community Action, said: “Communities and local councils in England have been developing and adopting zero carbon plans for places, but the government seems determined to smash any local hopes, instead dictating a sub-standard approach, failing to apply its own environmental assessment procedures to the policy that has been announced.”
Good Law Project legal manager Ian Browne added: “In the midst of a climate emergency and with millions of households struggling to pay their heating bills, we think the government’s roadblock to delivering more energy efficient homes is not just illogical, but unlawful.
“That’s why we’re going through the courts to make it easier for councils to be at the forefront of unlocking the next generation of green homes.”
A government spokesperson said: “We do not recognise these claims. Our policies allow more energy efficient homes to be delivered, as long as local authorities do this in a way that is easily understandable for housebuilders and does not affect the viability of new housing.
“We are improving the efficiency of homes with our Future Homes Standard, which will deliver the new homes needed for a net zero future.”