On 25 July 2025, the Court of Appeal handed down its much-anticipated judgment in the snappily-named case, Rights: Community: Action Ltd v Secretary of State for Housing, Communities and Local Government, something that could have far-reaching implications for local planning authorities (LPAs), developers, and environmental campaigners.

Before we get into the nitty-gritty, here’s a courtesy heads-up: this blog is probably only going to land with the serious planning geeks out there. There’ll be jargon, there’ll be acronyms, and there’ll be reasonably knotty legal shenanigans. Now, if you’re ready for all that, then buckle up.

What was the controversial 2023 Written Ministerial Statement?

I covered this in our handy 2023 blog, but to summarise, the dispute centred on a Written Ministerial Statement (WMS) issued in December 2023, which many inspectors, LPAs, and developers had interpreted as limiting councils’ ability to set local energy efficiency standards higher than national building regulations.

Rights Community Action, with support from the Essex Planning Officers Association, argued this outcome was unlawful. As I look back over my 2023 piece, I’m reminded just how strong the emotions were at the time: I described it as a ‘shock’ and a ‘disaster’ and described the government as presenting ‘a false dichotomy’.

A second key issue was whether the government had breached its duty under section 19 of the Environment Act 2021 by failing to consider the Environmental Principles Policy Statement (EPPS) when formulating the WMS.

What are the key takeaways from the new judgement?

I’ll summarise this in three points – all of which could be seen as good news for local planning and the environment:

• Higher local standards remain possible: The Court confirmed LPAs can set energy efficiency standards above national regulations, where justified by local circumstances and backed by evidence. National policy is guidance, not a legal ceiling.
• The 2023 WMS is not a legal block: The WMS does not, in itself, prohibit higher local standards - especially where there is a clear rationale and viability evidence.
• Government breached the EPPS duty: Ministers failed to give due regard to the EPPS when the WMS was made, contrary to section 19 of the Environment Act – but it was deemed acceptable that it was done retrospectively instead.

Local energy efficiency standards – what did the judgment actually say?

The 2023 WMS tries to influence both plan-making (writing local plans) and development management (deciding planning applications):

• Plan-making: as fellow planning geeks will no doubt recall, the WMS said the government “does not expect” councils to set standards above current or planned Building Regulations. It told inspectors to reject such policies unless the council provided a “well-reasoned and robustly costed rationale” showing the policy was viable. It went further, in setting the approach for any uplift as a percentage uplift on a home’s Target Emissions Rate (TER) under the SAP energy modelling method. (A methodology we know to be inaccurate.)
• Development management: where a local plan already had higher-than-regulation standards, the WMS said these should be applied “flexibly” if a developer could show it wasn’t technically feasible to comply.

Rights Community Action argued that these stipulations within the WMS interfere with the Planning and Energy Act 2008, which grants LPAs the power to set higher energy efficiency standards than those of building regulations. Because legislation has primacy, it would not be lawful for national policy to try to inhibit the function of legislation.

The Court of Appeal took a different view. It stressed that national policy — such as the WMS — is guidance, not a legal requirement. In other words: councils can depart from it if they have strong local justification – which, as far as I’m concerned, is great news in terms of giving councils the ability to go beyond national policy.

To reach this decision, the court looked closely at the Planning and Energy Act 2008. Unlike the High Court, the Court of Appeal found the wording of this Act was clear and didn’t need to be interpreted using Parliamentary debate records. A key point was that the court found that the 2008 Act contained within it a condition for consistency with national policy.

However, the judges recognised there’s an inherent tension between several things:

• The powers in the 2008 Act for councils to go further than building regulations.
• The fact that legislation (such as this act) holds primacy over national policy, yet the 2008 Act wording could be interpreted to allow national policy to condition how the legislation is applied.
• Councils’ broader legal duty under section 19 of the Planning and Compulsory Purchase Act 2004 to include policies that help tackle climate change.
• The government’s preference, expressed in the WMS, for sticking to national standards and metrics.
• Case law that already established that LPAs can diverge from national policy, such as the WMS, if they have sufficient justification to do so.

The court did not resolve this tension, as it was simply concerned with “whether the WMS itself was unlawful, not whether LPAs have to follow the WMS”, nor “whether the different pieces of legislation pull against each other”.

The court’s view was that the creators of the 2008 Act “did not think through the tension between the intention to use national [policy] to impose statutory restraints on [LPAs’ power to set higher standards] and the well-established legal principle that a LPA can include a local policy which conflicts with national policy [where] justified”.

The court also noted that some LPAs may wish to use energy efficiency metrics other than the WMS’s preferred TER metric (a key sticking point with LPAs wanting to go faster and harder on climate action), but states that this court was “not a proper forum for resolving the dispute as to whether one metric is preferable to another”. The judgement did not directly engage with whether the WMS would, in practice, cause LPAs to struggle with their legal duty to mitigate climate change imposed by Section 19 of the 2004 Act.

As a whole, this judgement allows the WMS to remain in place, but usefully, reconfirms the ability of LPAs to diverge from it where justified. This could be interpreted as leaving the door open for LPAs to adopt more ambitious standards, including metrics like those from the London Energy Transformation Initiative (LETI) - something I (and Bioregional) would be huge advocates for, as we always recommend it to the ambitious local authorities we support.

Still with us? Hang on in there – we’re about halfway through.

What did the judgement say on the Environment Act duty?

Section 19 of the Environment Act requires ministers to have due regard to the Environmental Principles Policy Statement (EPPS) when developing policy — not just at adoption. The EPPS itself calls for environmental principles to be applied iteratively from the outset, prompting “new”, “creative”, and “innovative” policy design.

The court found:

• No EPPS consideration occurred before the WMS was approved — a breach of the duty.
• Later assessment cannot “remedy” that breach or retrospectively validate the decision, but can still be lawful if done with substance, rigour, and an open mind (on the basis of previous case law that had established this)
• Even where the EPPS assessment identifies environmental harm that will occur, the duty to have due regard to that assessment did not oblige Government to refrain from making policy that had those harmful impacts – and the Government was still free to prioritise other objectives over the environmental ones, such as, in this case, national assumptions that having the WMS in place would protect housing delivery.

As the WMS’s early development began before section 19 of the Environment Act came into force, the later assessment was found lawful and proportionate, and so the appeal was dismissed.

The Future Homes Standard and the limits of the court’s power

A key point to note, the judgement relays that the Government’s eventual EPPS assessment had assumed that the incoming Future Homes Standard would already make homes compatible with the UK’s legislated carbon goals, (a point that we disagree with) and that the WMS would therefore have an insignificant impact on carbon emissions compared to if LPAs set more effective energy efficiency standards for new homes.

However, the court did not interrogate the accuracy of that assumption, merely finding that the Secretary of State could have rationally believed it. On this, the judgement states that “It is not a matter for [this] court … to say whether those conclusions are right or wrong. No party has argued that … the Secretary of State could not rationally hold those views”.

Similarly, the judgement did not interrogate the EPPS assessment’s assumption that higher energy standards in local plans would slow down housing delivery (and in fact we note that the Government admitted in March 2024 that it had no evidence of this when it made and assessed the WMS, in response to a pre-action letter of February 2024).

This may have concerning implications for the quality of EPPS assessments in future: While the case law establishes that such assessments should be done with “substance, rigour and an open mind”, it is uncertain what “substance” or “rigour” mean when this Court of Appeal did not seem concerned with whether this EPPS assessment’s key assumptions had any degree of accuracy. For comparison, our own analysis for several local authorities has found that:

• Energy and carbon standards much better than the Future Homes Standard are necessary for various local areas to stay within their share of national carbon budgets
• While the Government (and developers) have not presented any actual evidence to support their claim that more effective local plan energy efficiency policies would slow down housing delivery, our research suggests there is no evidence of a slowdown in applications in local plan areas that already have such policies in place.

So, why does this matter?

This judgment:

• Confirms the WMS is not a brick wall that blocks stronger local standards.
• Reasserts councils’ ability to depart from national policy where justified.
• Adds a new interpretation of the Environment Act duty to “have regard” to environmental principles when making policy, which may affect how ministers incorporate environmental considerations in future policymaking.

It’s also a symbolic case for environmental advocacy, in that it is Green Alliance’s first courtroom intervention, and brought together input on this topic from a range of sectors, including local authorities, a charity, and planning body TCPA.

More good news: Tendring & Colchester lead the way

In June 2025, Tendring & Colchester Borders Garden Community DPD became the first plan to secure examination approval while incorporating Energy Use Intensity (EUI) metrics since the 2023 WMS has been in place. The policy demands:

• Net-zero operation upon occupation (or within five years in exceptional cases)
• Homes with Space Heat Demand (SHD) < 30 kWh/m²/year and EUI < 40 kWh/m²/year (translation for the non-geeks: very low heat and energy use)
• On-site renewables matching total energy use, or configurable offsetting
• Coverage for non-residential buildings via net-zero operational duty

Inspectors found this justified, viable, and backed by robust Essex-level feasibility studies—including support from the Garden Community’s lead developer via a Statement of Common Ground.

Uttlesford and Salt Cross join the momentum

Uttlesford Local Plan: This plan’s net-zero carbon policy holds tight on SHD/EUI limits, differentiating by building typologies, banning fossil fuels on site, and maintaining strong renewable energy mandates. Full transparency: Uttlesford is a client of ours, and after Marina and I successfully defended this policy at the examination in mid-2025, the Inspectors’ post-hearing letter in August confirmed no intent to relax these standards.

Salt Cross Area Action Plan, whose EUI-based net-zero carbon policy was originally rejected under the 2015 WMS, was revived successfully in its 2024-2025 re-examination despite the new 2023 WMS. In a post-hearing letter dated 1 August 2025, Inspector Helen Hockenhull confirmed the net-zero carbon development policy is consistent with national policy as a whole. She accepted that using the EUI metric instead of the WMS’s preferred TER/SAP metric is justified -especially given the Council’s evidence that EUI more comprehensively reflects total energy usage, both regulated and unregulated. She acknowledged the WMS as a material consideration but pointed to the broader context -like the Climate Change Act and NPPF’s climate objectives - to support Salt Cross’s approach.

What now?

The Court of Appeal has left the door open for local ambition. The next step is for LPAs to seize the opportunity - adopting stronger, evidence-based energy standards that reflect local climate commitments. At the same time, Government must raise its game in how it applies environmental principles when making policy. With net-zero deadlines looming, the onus is now on both local and national actors to ensure planning plays its part in delivering climate-ready homes and communities.

How we can support you

We’re already supporting a number of local authorities across the UK on this challenge — from developing evidence bases to defending ambitious policies at examination. Get in touch below if you’d like to discuss how we can support your authority to take the next step.

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