What was the controversial 2023 Written Ministerial Statement?
I covered this in our handy 2023 blog, but to summarise, the dispute centred on a Written Ministerial Statement (WMS) issued in December 2023, which many inspectors, LPAs, and developers had interpreted as limiting councils’ ability to set local energy efficiency standards higher than national building regulations.

Rights Community Action (led by the incredible Naomi Luhde-Thompson and her team), along with support from the Essex Planning Officers Association, argued this outcome was unlawful. As I look back over my 2023 piece, I’m reminded just how strong the emotions were at the time: I described it as a ‘shock’ and a ‘disaster’ and described the government as presenting ‘a false dichotomy’.

A second key issue was whether the government had breached its duty under section 19 of the Environment Act 2021 by failing to consider the Environmental Principles Policy Statement (EPPS) when formulating the WMS.

What are the key takeaways from the new judgement?
I’ll summarise this in three points – all of which could be seen as good news for local planning and the environment:

Higher local standards remain possible: The Court confirmed LPAs can set energy efficiency standards above national regulations, where justified by local circumstances and backed by evidence. National policy is guidance, not a legal ceiling.
The 2023 WMS is not a legal block: The WMS does not, in itself, prohibit higher local standards – especially where there is a clear rationale and viability evidence.
Government breached the EPPS duty: Ministers failed to give due regard to the EPPS when the WMS was made, contrary to section 19 of the Environment Act – but it was deemed acceptable that it was done retrospectively instead.
Local energy efficiency standards – what did the judgment actually say?

Plan-making: as fellow planning geeks will no doubt recall, the WMS said the government “does not expect” councils to set standards above current or planned Building Regulations. It told inspectors to reject such policies unless the council provided a “well-reasoned and robustly costed rationale” showing the policy was viable. It went further, in setting the approach for any uplift as a percentage uplift on a home’s Target Emissions Rate (TER) under the SAP energy modelling method. (A methodology we know to be inaccurate.)
Development management: where a local plan already had higher-than-regulation standards, the WMS said these should be applied “flexibly” if a developer could show it wasn’t technically feasible to comply.
Rights Community Action argued that these stipulations within the WMS interfere with the Planning and Energy Act 2008, which grants LPAs the power to set higher energy efficiency standards than those of building regulations. Because legislation has primacy, it would not be lawful for national policy to try to inhibit the function of legislation.

The Court of Appeal took a different view. It stressed that national policy — such as the WMS — is guidance, not a legal requirement. In other words: councils can depart from it if they have strong local justification – which, as far as I’m concerned, is great news in terms of giving councils the ability to go beyond national policy.

The court stressed that national policy – such as the WMS – is guidance, not a legal requirement.

To reach this decision, the court looked closely at the Planning and Energy Act 2008. Unlike the High Court, the Court of Appeal found the wording of this Act was clear and didn’t need to be interpreted using Parliamentary debate records. A key point was that the court found that the 2008 Act contained within it a condition for consistency with national policy.

However, the judges recognised there’s an inherent tension between several things:

The powers in the 2008 Act for councils to go further than building regulations.
The fact that legislation (such as this act) holds primacy over national policy, yet the 2008 Act wording could be interpreted to allow national policy to condition how the legislation is applied.
Councils’ broader legal duty under section 19 of the Planning and Compulsory Purchase Act 2004 to include policies that help tackle climate change.
The government’s preference, expressed in the WMS, for sticking to national standards and metrics.
Case law that already established that LPAs can diverge from national policy, such as the WMS, if they have sufficient justification to do so.
The court did not resolve this tension, as it was simply concerned with “whether the WMS itself was unlawful, not whether LPAs have to follow the WMS”, nor “whether the different pieces of legislation pull against each other”.

The court’s view was that the creators of the 2008 Act “did not think through the tension between the intention to use national [policy] to impose statutory restraints on [LPAs’ power to set higher standards] and the well-established legal principle that a LPA can include a local policy which conflicts with national policy [where] justified”.

The court also noted that some LPAs may wish to use energy efficiency metrics other than the WMS’s preferred TER metric (a key sticking point with LPAs wanting to go faster and harder on climate action), but states that this court was “not a proper forum for resolving the dispute as to whether one metric is preferable to another”. The judgement did not directly engage with whether the WMS would, in practice, cause LPAs to struggle with their legal duty to mitigate climate change imposed by Section 19 of the 2004 Act.

As a whole, this judgement allows the WMS to remain in place, but usefully, reconfirms the ability of LPAs to diverge from it where justified. This could be interpreted as leaving the door open for LPAs to adopt more ambitious standards, including metrics like those from the London Energy Transformation Initiative (LETI) – something I (and Bioregional) would be huge advocates for, as we always recommend it to the ambitious local authorities we support.