High Court to hold judicial review into ‘draconian’ planning rules

The High Court has given the green light for a judicial review of new “unnecessarily draconian” planning rules, which limit the ability of local councils to set their own energy efficiency standards.

The review relates to a ministerial statement issued by the Department for Levelling Up, Housing and Communities (DLUHC) in December 2023.

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 [and] has failed to properly apply its own Environment Act 2021”.

The High Court has said that the hearing into the challenge must take place as soon as possible after 20 May.

The WMS, issued by DLUHC junior minister Baroness Penn, prohibits councils from setting energy efficiency standards in their local plans above those outlined in building regulations.

RCA argues that the statement is unlawful because it cuts across the objectives of the Climate Change Act 2008.

The other grounds for challenge include whether the government has failed properly to apply its own Environment Act 2021, which requires policy to be assessed for its environmental impacts.

The WMS 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, since when some councils have set their own energy efficiency standards for new build properties above the national minimum requirement.

During the subsequent years, local authorities in Bath & North East Somerset and Cornwall 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 WMS was greeted by a widespread backlash with Grand Designs presenter Kevin McCloud branding the move a “policy disaster” and a letter, co-signed by more than 50 bodies, describing it as “unnecessarily draconian”.

Good Law Project executive director Jo Maugham said: “It is hard to believe, but it is true, that homes are being built today, perfectly lawfully, that are so poorly insulated that they will later need to be fitted with extra insulation. This will be costly, wasteful and an enormous headache for homeowners.

“Worse still – Michael Gove has adopted a ministerial statement which has the effect of discouraging the building of homes to a sustainable standard. This will be beneficial in the short term for the huge housebuilders and developers that fund the Conservative Party – and terrible for everyone else. We think it’s time to say ‘enough is enough’.”