Planning Court allows legal challenge after inspectors removed net zero policies included by council in garden village area action plan

A High Court judge has upheld a campaign group’s legal challenge to the removal by planning inspectors of certain net zero policies from a garden village area action plan drawn up by West Oxfordshire District Council.

At issue in Rights Community Action Ltd, R, (On the Application Of) v Secretary of State for Levelling Up, Housing And Communities [2024] EWHC 359 (Admin) was whether the inspectors erred in law in their treatment of a written ministerial statement ("WMS") dated 2015, which purported to control how energy performance requirements in new housing development would relate to the Building Regulations and the Code for Sustainable Homes. 

The Salt Cross garden village – part of the West Oxfordshire Local Plan 2031 – is to be built to the north of the A40 near Eynsham.

The council submitted the area action plan (AAP) to the Planning Inspectorate in February 2021.

The inspectors subsequently recommended main modifications in light of five deficiencies, one of which being a finding that the council should revise 'Policy 2' of its plan that requires development at Salt Cross to demonstrate net zero operational carbon on site.

The inspectors concluded the standards demanded by the scheme were significantly higher than those required in the 2013 Building Regulations and conflicted with national policy on energy efficiency set out in the 2015 WMS.

However, Mrs Justice Lieven concluded that the inspectors’ interpretation of the WMS “neither makes sense on the words, seen in their present context, or of the mischief to which it was applying.

“To interpret the WMS so as to prevent or restrict the ability of the LPA [local planning authority] to set a standard higher than Level 4 [of the Code for Sustainable Homes] is plainly wrong in the light of subsequent events.

“For this reason, the Inspectors erred in law in their approach by finding that Policy 2 of the AAP was inconsistent with the WMS.”

Turning to relief, Mrs Justice Lieven said she did not accept that the 'highly likely the outcome would be the same' test was met.

“Overall, in my view, the Inspectors error in respect of the WMS infected the entirety of their analysis. If they had properly understood and applied national policy, then they might well have reached a different set of conclusions on Policy 2, whether in part or on its entirety,” she said.

Commenting on the ruling, Naomi Luhde-Thompson of RCA said: “This case was David v Goliath; on one side, a community and local council fighting for the most ambitious net zero standards for a new local area. On the other, a developer seemingly concerned only about profit, and a lame-duck government determined to undermine local democracy and local voices.

“As an organisation, we truly understand that the most practical and effective way forward for delivering net zero is through making every local development decision matter on climate change. We want to support local community and local council visions for net zero.

“This judgment affirms what we already know needs to happen across the country. Local action from communities and local councils, developing and adopting zero-carbon plans, needs government support – not nonsensical barriers, which run contrary to everything that needs to happen now, to achieve climate safety and security for us all.”

Leigh Day solicitor Ricardo Gama, who acted for RCA, said: “The judge has found that the government’s planning inspectors were wrong to hold that national planning policy prevented local authorities from setting climate-compatible energy efficiency requirements for new buildings.

“The case is a frustrating example of a local authority trying to take ambitious action on climate change and being hamstrung by confusion in central government and so it’s welcome that the judge has clarified the legal position.

“The government updated its policy in between the High Court hearing and the judgment and the lawfulness of that policy is also being examined by our client.”