Organisations launch legal challenge to government over zero carbon housing

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The Good Law Project (GLP) is backing a campaign by Rights Community Action which challenges the government over a confusing ministerial statement which appears to undermine the drive to net zero housing.

Rights Community Action is a collaborative group of campaigners, lawyers and planners working to empower communities to tackle climate change, including through the use of planning initiatives that support more environmentally friendly housing.

At the end of February this year they received a judgement on the Salt Cross Garden Village development which had been stalled by central government because its plans to be carbon net-zero and 100% powered by on-site renewables were rejected as being “too high and prescriptive, and conflicted with national energy efficiency policy”.

Having taken the issue to court last year alongside West Oxfordshire Council, the judgement handed down in February by Mrs Justice Lieven dismissed the government’s arguments, finding that the planning inspector’s interpretation of national policy didn’t make sense.

The government’s position appeared to suggest that national planning policy could prevent local authorities from setting their own energy efficiency requirements for new developments.

Having won the case which was funded by GLP, the coalition now seeks further clarification on a ministerial statement released in December 2023 which states: “Any planning policies that propose local energy efficiency standards for buildings that go beyond current or planned buildings regulation should be rejected at examination if they do not have a well-reasoned and robustly costed rationale.”

GLP fears that loose definitions within the statement could favour developers who want cheaper developments that are less carbon efficient.

Speaking to elemental, Director of Rights Community Action Dr Naomi Luhde-Thompson explained why the need for clarity was important for the longer-term planning of net zero homes. “It’s confusing because the Future Homes Standard is not quite zero carbon on the measurement of performance,” she told us. “If you get into technical details, it depends on how you measure the energy performance of a building.

“There are two different approaches, and one approach means that you build and put the fabric first, making it as energy efficient as possible, because then you need the least amount of inputs into it. Or you can build less fabric if you put more sustainable electricity into it, but that puts a huge pressure on the grid because then you’re building homes that aren’t as efficient as they could be.”

Although the more efficient building would mean a greater investment by the developer, Luhde-Thompson argues that the cost is not that much more up front, and that by insisting all homes are built to the highest efficiency, costs will come down as economies of scale kick in. “But it’s much better in terms of resource use and it makes a difference for the person living in the property,” she says, because energy bills will be that much smaller.

Developers looking to maximise profits won’t be focused on the end user when they cost up a project. “This constant delay [in setting clear standards] it may be saving current construction companies some money, but it’s costing people a lot. All those households will have to retrofit, so in the end it costs more,” says Luhde-Thompson.

Good Law Project’s Legal Manager Ian Browne agrees. He told us, “From a very common-sense point of view we should be pushing standards higher up rather than cutting them low.”

Funding the Rights Community Action campaign fits with GLP’s remit to promote good governance, support communities and protect the environment. Browne says, “Energy efficiency is a really important part of the journey to net zero, especially in existing homes, but also in future homes as well. And so we were interested in how the law was being used to allow for better homes to be built.”

The two organisations are keen to begin the next challenge to bring clarity from the ministerial statement. Browne said, “It’s effectively saying that local planning, and local democratically accountable authorities aren’t able to set higher standards, so we have now started a new legal challenge against the ministerial written statement.”

GLP has sent a pre-action protocol letter to the Department for Levelling Up, Housing & Communities arguing that the minister’s statement is unlawful on the grounds that it restricts local authorities from exercising powers, it “presents a misleading picture” by not setting out councils’ legal responsibility to impose energy efficiency standards, and that the minister “failed to have due regard to the environmental principles policy statement”.

The move is supported by at least 50 local authorities and The Town and Country Planning Association who have signed a joint letter supporting the action.

GLP is inviting the public to join the movement by writing a letter to Michael Gove, the minister for Levelling Up, Housing and Communities.

Meanwhile the Good Homes Alliance is urging all stakeholders with an interest in the push to build more net zero properties to take part in the current government consultation, and to sign their own joint letter.

Luhde-Thompson hopes that a successful challenge will open the door to local authorities to become the driving force behind a move to greater carbon efficiency.

“Local governments are really committed to zero carbon and trying to do their best,” she said. “And so much of the delivery mechanism on our carbon budget sits with local authorities because it’s housing, energy and transport. That is how we’re changing and transforming our built environment to be zero carbon. Many of those decisions are being made by local authorities. They need to cover a huge suite of different issues and all of those synergies, so they need really robust plans to do it.”

Find out the latest on zero carbon homes at InstallerSHOW 2024 – running 25-27 June at the NEC.