R (on the application of Rights Community Action Ltd) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 1693 (Admin); [2024] PLSCS 123 is the first judicial treatment of the duty on ministers to have “due regard” to the Environmental Principles Policy Statement.
The environmental principles duty
Since 1 November 2023, ministers have been under the “environmental principles duty” in section 19 of the Environment Act 2021. This means a minister must have due regard to the EPPS when making policy, including ministerial statements.
The EPPS sets out how ministers should interpret and apply the environmental principles, so that they are used effectively to shape policy to protect the environment. The environmental principles include, among others, the integration principle, the polluter pays principle and the precautionary principle. Of particular relevance to this case, the integration principle involves considering whether the policy being proposed could have negative environmental effects, and if these can be avoided.
The facts
On 14 November 2023, the minister for the Department for Levelling Up, Housing and Communities (then Baroness Penn) published a written ministerial statement on local energy efficiency standards. The WMS set out the government’s expectation that local planning policies do not set local energy efficiency standards for buildings that go beyond current or planning building regulations. The government’s concern was that a proliferation of different standards could increase complexity and cost, and slow down housing delivery.
During the hearing of the case, the government conceded that the minister did not have a copy of an EPPS assessment when she made the decision to publish the WMS. However, an EPPS assessment of an earlier draft WMS was provided to the minister’s predecessor. Furthermore, following the publication of the WMS on 22 February 2024, an EPPS assessment was undertaken retrospectively.
Rights Community Action is, in its own words, a non-governmental organisation committed to tackling the climate emergency. RCA’s position was that local planning authorities should be able to set their own different energy efficiency standards, with a view to lowering the carbon impact of future housing.
RCA challenged the WMS by way of judicial review. Its primary argument was that the minister failed to have due regard to the EPPS, as required by the 2021 Act. In particular, RCA argued that the belated 2024 EPPS assessment was insufficient to discharge the duty. RCA also argued, referencing the integration principle, that the 2024 assessment failed to address the negative impact of the WMS on the environment.
The judgment
Sitting in the Administrative Court, Mrs Justice Lieven first considered the correct legal approach to the requirement to have due regard to the EPPS. Acknowledging there was no existing case law on the environmental principles duty, the judge considered the approach taken to due regard duties in other areas of law, including under equalities law.
As part of her judgment, she set out the following principles and tests in relation to the environmental principles duty:
- The minister must consider the EPPS “with substance, rigour and an open mind”.
- Failure to assess against the EPPS can, in appropriate cases, be remedied later. A later assessment can still discharge the statutory duty.
- The duty includes a duty of inquiry. If relevant material is not available, there will be a duty to acquire it, potentially involving further consultation with relevant groups.
- Whether the due regard duty is met is highly context and fact specific.
- It is for the decision-maker to determine how much weight to give to the environmental principles, as compared to other factors such as social and economic considerations. It is not the role of the court to interfere with the decision-makers’ weighting of these factors, where the statutory requirement to have due regard has been met.
Having established this framework, Lieven J adjudged that the (belated) February 2024 assessment met the tests. The judge also considered that the 2024 assessment had addressed the possible negative environmental effects of the policy, and that proper inquiry as to potential adverse effects had been made.
The significance of the decision
The court’s acceptance that the duty to have due regard to the EPPS may be discharged via an EPPS assessment several months after the date of the WMS is, at first glance, surprising.
The aim of the environmental principles duty is to create process change, and, in turn, behavioural change. Specifically, it requires those involved in policy development to consider the EPPS, which may then influence or modify their approach to policy. It does not prescribe the outcome, but it guides the process. With this backdrop, it appears conceptually challenging to conclude that this can occur effectively when the detailed assessment follows the event.
However, case law from other statutory due regard duties has established that an ex-post assessment does not automatically render the WMS unlawful. It appears the court has on this occasion taken a holistic approach to EPPS assessment, and found the assessment undertaken to be proportionate in the circumstances.
The case is a salutary reminder to ministers and officials of the new requirement to have due regard to the EPPS when making policy across government. The duty is not limited to environmental policy, and so consistent implementation will be required as the Labour government develops new policies.
As this is the first analysis of the environmental principles duty, the setting out of legal tests and criteria will be of assistance to ministerial decisions (and any challenges) that follow.
Given the wealth of case law on due regard duties in other areas of law, while this is the first case on the environmental principles duty, it is unlikely to be the last. Indeed, at the time of writing RCA has announced it will appeal. Perhaps the foundational principles will be recast.
James Nierinck is a senior associate in the environment team at Ashurst LLP
