High Court decision highlights conflict over energy efficient homes

Net Zero having become a core factor of policy

With the strive towards Net Zero having become a core factor of policy formation in recent years, it has begun to influence any and all sectors where there is an impact on climate change.

This has very much been the case for the world of planning and development, a long-term subject of tension between Local Planning Authorities (LPAs) and central government amid competing priorities over meeting target numbers for new homes whilst facing ever-increasing environmental standards.

This continuing confusion has made headlines again following a High Court decision to overturn a decision by the Planning Inspectorate to water down West Oxfordshire Council’s policies in its Local Plan which had sought to impose energy efficiency requirements on new homes above and beyond national requirements.

West Oxfordshire Council had created an area action plan to ensure that a new garden village being planned would be a net zero-carbon development, more specifically including policy requirements to ensure that its 2,200 homes would be insulated to a sufficiently high standard so that on-site renewable energy could supply the settlement's entire heat and power needs.

Net Zero battle in the High Court

In a report issued last March by the Planning Inspectorate, it was stated that the policies being proposed by West Oxfordshire Council differed to a ministerial statement from 2015 that said local plans that went beyond nationally set building regulations would be deemed “unsound”.

Having challenged the decision in the High Court, a local campaign group were able to convince the judge that inspectors had misinterpreted this messaging from the government and that the attempt to restrict their policy for more environmentally friendly homes was wrong.

Following the decision, the government has issued a new written ministerial statement which has made its position clear that LPAs shouldn’t be developing policies that go beyond national regulations. This, in turn, is currently being legally challenged by campaign group Rights Community Action.

What this means

Planning legislation, policy and guidance continues to be amended and replaced by successive governments, which has resulted in an array of conflicting statements, opening up policy to challenge.

With this latest victory for local government, it suggests that it is possible for more environmentally-minded LPAs who want to raise the bar on their efforts to reach Net Zero, potentially opening the floodgates to policies that prioritise energy efficiency standards over the rollout of mass housing.

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The ongoing High Court challenge of the government’s most recent written ministerial statement on the topic may well provide much-needed clarity that LPAs and developers need. At present, we are seeing a number of authorities currently seeking to raise the bar on new homes standards to achieve net zero at local level through emerging local plans. The outcome of this new High Court challenge may well dictate the soundness of such policies.  

The Future Homes Standards is set to come into force next year raising the bar on energy efficient homes, however the ongoing debate about the scope of councils to set higher standards will be relevant until then and continue to be for those authorities who seek higher standards than the Future Homes Standards.

What can developers do?

The current situation is highly unlikely to become the status quo as councils continue to push the boundaries of existing legislation, national policy and guidance.

For developers, the foremost objective needs to be getting their application over the line. This requires careful consideration of the political landscape and what in their proposals the decisionmakers will be amenable to.

Whilst potentially more costly to design and build, applications coming forward which are above and beyond the national and local requirements will most certainly be better received by both the LPA and the local community, potentially tipping the balance when it comes to determination.

With elections at local and national levels also taking place this year, there is likely to be changes in position across all levels of government. By preparing business practices to address new requirements that come in, it will enable developers to meet and potentially exceed them in such a way that not only will they be better received, but could also make the properties more marketable.

Harvey Davies, Solicitor in the Thrings Planning and Environment team, said: “This High Court decision is another example of how the planning world is in transition, with the environmental agenda being just one of the many business issues which developers need to deal with.

“For a long time, developers have been trading in a very uncertain environment, having to balance the commercial aspects of building new homes that make enough profit to continue trading in the long term versus the ever-increasing environmental requirements needed for approval.

“Needless to say, the tide is definitely turning, and these factors should be playing a role in business models for any and all developments to give them the best chance of being treated favourably when it comes to determination.”

Thrings’ Planning and Environment lawyers have extensive experience in navigating complex local and national planning policy legislation and has successfully supported commercial and residential applications through the approval and appeal processes. To find out more and for advice on your development proposals, including how to address enforcement notices, please get in touch.


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