Campaign group Rights Community Action has won a court battle over the net zero requirements of a planned garden village.
In a ruling handed down today in the High Court, Mrs Justice Lieven ruled that a planning inspector was wrong to stop West Oxfordshire District Council from stipulating that Salt Cross Garden Village should be a zero carbon development.
RCA is comprised of lawyers, planners, writers and scientists seeking to tackle the climate emergency.
At the centre of the case is a 2015 written ministerial statement issued by then secretary of state for communities and local government, Eric Pickles.
The statement said: “Local planning authorities will continue to be able to set and apply policies in their Local Plans which require compliance with energy performance standards that exceed the energy requirements of Building Regulations until commencement of amendments to the Planning and Energy Act 2008 in the Deregulation Bill 2015.”
The complication that gives rise to the case is that the government didn’t make the amendments envisaged in this statement.
According to the ruling handed down today, the planning inspector interpreted this as meaning that local planning authorities were barred from setting conditions that went beyond the 2015 bill.
Therefore they found that the council’s stipulation that the development should be carbon neutral was beyond planning law and impermissible.
However, lawyers for RCA argued that, because the amendments referred to in the ministerial statement didn’t take place, the premise of the policy no longer exists, and it cannot be interpreted as a block on individual councils’ net zero ambitions.
In her ruling today, planning judge Mrs Justice Lieven backed RCA.
“In my view, the inspectors’ interpretation neither makes sense on the words, seen in their present context, or of the mischief to which it was applying,” she said in her ruling.
“To interpret the [written ministerial statement] so as to prevent or restrict the ability of the [local authority] to set a standard higher than level 4 is plainly wrong in the light of subsequent events.
“For this reason, the inspectors erred in law in their approach.”
This mistake “infected the entirety of their analysis”, she said. “If they had properly understood and applied national policy, then they might well have reached a different set of conclusions.”
Leigh Day’s 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. So it is 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,” he said.
Rights Community Action Ltd v Secretary of State for Levelling Up, Housing and Communities
Planning Court (Lieven J) 20 Feb 2022
