NGO successfully challenges planning inspectors’ report on energy performance standards
The recent decision (20 February 2024) of the High Court in R (Rights Community Action) v Secretary of State is a rare example of an NGO succeeding in a climate change legal action under English law. In the case, Rights Community Action persuaded the High Court to overturn a finding by the Secretary of State’s Planning Inspectors that a local authority’s “net zero” policy was unlawful.
The claim arose in relation to a proposed new “garden village” development in Oxfordshire. The settlement was to be built out in accordance with an Area Action Plan which set out various requirements aimed at achieving zero-carbon development with no reliance on fossil fuels.
The policies in the Action Plan were prescriptive and went well-beyond nationally applicable requirements set out in Building Regulations.
The issue was whether a local authority had the power, through the Action Plan, to require higher standards than those set out in Building Regulations.
The Secretary of State’s Planning Inspectors decided that it did not have such power. This was because the Secretary of State had issued guidance prohibiting local authorities from insisting on higher standards until new legislation was brought in.
The High Court held that this decision of the Planning Inspectors was flawed because the guidance relied on by the Planning Inspectors had been superseded by events and was no longer applicable.
In some ways, the case is fact-specific and turns on the fact that guidance prohibiting local authorities from imposing higher standards was no longer in effect. However, the court could have decided that in any event, policy on “net zero” is a matter properly dealt with at national, not local level and so should be left to national authorities. It did not do so, leaving open the door to local authorities to impose their own, potentially stringent, climate-related requirements. This decision is an acknowledgement by the courts of the urgency of the climate crisis and the overriding necessity of measures to tackle it.