High Court overturns inspectors’ decision to water down net zero policy in council’s 2,200-home plan

Ricardo Gama, solicitor at Leigh Day which acted on behalf of the claimant, 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”. 

The community in West Oxfordshire has won in the High Court. The Judge overruled the Inspector’s decision that Salt Cross should not to be the zero carbon development it was planned to be.

We’ve yet to understand how this new decision might be affected by Lee Rowley’s Written Ministerial Statement of Dec ’23 that said that councils couldn’t set higher building standards than building regs….(exactly what the original argument was about – its almost as if Rowley wanted to undo any likely judgement in the case).

High Court overturns inspectors’ decision to water down net zero policy in council’s 2,200-home plan

A High Court judge has found that planning inspectors erred in law in demanding the softening of net zero policies in a council’s 2,200-home development plan, concluding that their interpretation of a written ministerial statement was “plainly wrong” and had “infected the entirety” of their analysis. by Samantha Eckford 20 February 2024

In February 2021, West Oxfordshire District Council submitted an area action plan (AAP) for the Salt Cross Garden Village. 

The proposed scheme, on a 154-hectare greenfield site north of Eynsham in Oxfordshire, halfway between Witney and Oxford, includes schools and a business park and is a key part of West Oxfordshire District Council’s 2018-adopted local plan. 

The AAP proposed that all of its new 2,200 homes should be insulated to ensure all energy consumption could be fossil fuel-free and generated by on-site renewables. 

However, in their final report on the plan, issued in March last year, inspectors Darren McCreery and David Spencer said the AAP’s proposed environmental standards conflicted with national policy on energy efficiency set out in a 2015 written ministerial statement (WMS).

 They questioned the council’s proposed requirement for all homes on the development to be net zero carbon, noting “inconsistencies between the approach set out in the policy and the national policy position” related to exceeding building regulations. 

Their report concluded that policy two of the AAP, which related to net zero-carbon development, should “remove prescriptive detail and enable a more pragmatic approach for the necessary transition to a low carbon future”.

Rights: Community: Action (RCA), which describes itself as “a rights and climate collective”, subsequently challenged this decision, arguing that the inspectors’ interpretation of the WMS was wrong and the AAP did not conflict with it. In addition, they claimed that the eight-year-old WMS is outdated.

In her judgment, which was handed down at 10:30am this morning (Tuesday 20 February), Mrs Justice Lieven found that the inspectors’ interpretation of the WMS “neither makes sense on the words… or of the mischief to which it was applying”. 

“To interpret the WMS so as to prevent or restrict the ability of the LPA to set a [higher] standard… is plainly wrong”, she said, concluding that the inspector had erred in law in finding that policy two of the AAP conflicted with the WMS. 

This misinterpretation “infected the entirety” of the inspectors’ analysis, Mrs Justice Lieven said. 

“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 added. 

However, she rejected the claimant’s contention that the inspector’s decision was “prejudiced”, agreeing with the secretary of state’s contention that the claimant’s failure to participate in the hearings contributed to its failure to understand the inspectors’ reasoning, as opposed to any “any lack of fairness in the process”. 

According to RCA, the government withdrew the 2015 WMS after the conclusion of hearings in November, before the judgment was handed down. 

The director of Rights Community Action, Dr Naomi Luhde-Thompson, 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”, she said. 

“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”, she added.   

West Oxfordshire Council and Grosvenor Developments, which is promoting the garden village project, were interested parties in the case. 

Planning approached the Department for Levelling Up, Housing and Communities (DLUHC), and West Oxfordshire Council for comment, but both had yet to respond at the time of publication. The Planning Inspectorate (PINS) declined to comment.