Court of Appeal clarifies powers of local planning authorities on Energy Efficiency Standards

In a judgment handed down this week, the Court of Appeal has clarified the powers of local planning authorities on Energy Efficiency Standards. 

On 25 July 2025, the Court of Appeal handed down its decision in R (Rights: Community: Action Ltd) v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 990 confirming that Local Planning Authorities (“LPAs”) can set higher energy efficiency standards than national regulations and establishing that Ministers must meaningfully consider environmental principles at the outset of policy-making under section 19 of the Environment Act 2021. 

Background

The case arose from a Written Ministerial Statement (“WMS”) issued by the Secretary of State for Housing, Communities and Local Government in December 2023, which available here. The WMS was widely interpreted as discouraging LPAs from setting local energy efficiency standards above those in national building regulations. 

A judicial review claim was started by Rights: Community: Action Ltd (RCA), a non-profit organisation. This claim was brought on two grounds:

1. That the Secretary of State failed to comply with the section 19 duty under the Environment Act 2021 by not having due regard to the government's Environmental Principles Policy Statement (“EPPS”).
2. That the WMS unlawfully restrained LPAs’ powers under the Planning and Energy Act 2008.

The High Court dismissed both grounds, but the Court of Appeal granted permission to appeal.

Ground 1: Section 19 of the Environment Act 2021

Section 19 of the Environment Act 2021 requires Ministers to have “due regard” to the EPPS when making policy. This was the first case in the Court of Appeal to consider the scope and application of this duty.

The Court of Appeal found that the Secretary of State had breached s19 by failing to consider the EPPS at the time the WMS was formulated. Although a retrospective assessment was carried out in February 2024, the Court of Appeal held that this did not cure the breach. 

The ruling also emphasised on several overarching principles:

• Para 85: The section 19 duty applies at multiple stages throughout the policy-making process
• Para 93: The duty must be fulfilled “in substance, with rigour and with an open mind”
• Para 94 and 110: The proportionality requirement under sections 17(2) and 19(2) calls for an assessment that is appropriate and proportionate to the nature and complexity of the policy issues involved.

This ruling confirms that s19 imposes a substantive obligation that must be integrated into the policy-making process from the outset, as the duty applies not only at the point of final decision-making but also during the formulation of policy options.

Ground 2: Local Energy Efficiency Standards

The Court of Appeal dismissed the second ground but provided an important clarification. It held that the WMS does not have the force of law and does not override the statutory powers of LPAs under the Planning and Energy Act 2008. LPAs remain entitled to adopt local plan policies that require higher energy efficiency standards, provided those policies are justified by local circumstances and supported by evidence.

24. […] Local circumstances may justify a departure from national policy […] even where the national policy is expressed in unqualified terms (R (West Berkshire District Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 441; [2016] 1 WLR 3923 at [21]-[30]).

78. That raises the question, what is the statutory power under which a LPA could include in a DPD a policy standard more onerous than one set in national regulations or policy, such as the FHS? […] 

79. I am left with the impression that the draftsman did not think through the tension between the intention to use national measures to impose statutory restraints on how far a LPA may set standards exceeding building regulations and the well-established legal principle that a LPA can include in its DPD a local policy which conflicts with national policy, justified, for example, by local circumstances (see e.g. West Berkshire).

This clarification is significant as it confirms that LPAs are not bound by the WMS and can continue to pursue local climate policies with more ambitious targets. The Court’s reasoning reinforces the discretion afforded to LPAs in addressing climate change through planning policy.

Implications for stakeholders

The decision signals to Ministers and policymakers that environmental principles must be meaningfully considered in the development of policy. It also provides a framework for future challenges where s19 compliance is in question.

For LPAs, the ruling provides reassurance that they retain the ability to set higher local energy efficiency standards, provided those policies are evidence-based and justified. The WMS does not override their statutory powers.

For developers, the decision means that local requirements may vary and could exceed national minimums. This reinforces the importance of engaging with local plans and understanding the policy context in each area.

Conclusion

While the appeal was dismissed overall, the Court of Appeal’s reasoning represents a significant shift from the High Court’s approach and sets a higher bar for environmental compliance in policy-making.

By confirming that LPAs can set higher energy efficiency standards than national regulations, the Court of Appeal has reaffirmed the autonomy of LPAs to pursue climate policies with more ambitious targets.

Also, the ruling on the applicability of the s19 duty since the outset of the development of policies not only shows that environmental principles should be taken into account from early stages, but also provides a framework for future challenges where s19 compliance is in question.

Read more about Irwin Mitchell's planning and environment expertise.