December’s Ministerial Statement Ineffectual Against Tightening Planning Energy Targets

Developers should assume that local authorities will be able to by-pass the 13/12/2023 Ministerial Statement and apply energy standards that go beyond Building Regulations compliance.

Confusion has arisen from the Statement, given by Minister of State for Housing Lee Rowley, in which it was declared that ‘Government does not expect plan-makers to set local energy efficiency standards for buildings that go beyond current or planned buildings regulations’. This appears to exclude the possibility of local authorities applying tougher standards, as many have been doing to date. The GLA’s London Plan, which currently sets CO₂ reduction targets which go well beyond current Part L, is the best example of this. There are many others.

However, there is both existing precedent and further content in the Ministerial Statement which places doubt on this conclusion:

• A 2015 Ministerial Statement (from then Secretary of State for Communities and Local Government, Eric Pickles) stated that local authorities were not expected to set conditions which exceeded the Code Level 4 equivalent for energy (a 19% reduction over Part L 2013). Many councils have continued to successfully apply policies that exceed this;
• A recent High Court judgement which ruled the Secretary of State had erroneously demanded a softening of net-zero policies in the Salt Cross Garden Village Area Action Plan with reference to the above 2015 statement;
• Further content in the 2023 statement, which states that where energy efficiency standards are proposed that go beyond Building Regulations, they ‘should be rejected at examination if they do not have a well-reasoned and robustly costed rationale’ that prohibits ‘viable’ development and that ‘the additional requirement is expressed as a percentage uplift..of a dwelling’s TER calculated using..SAP’. This leaves the door open for additional policies to exist, should they meet these tests.

Furthermore, energy efficiency is defined within the Building Regulations to be more expansive than purely CO₂ emissions (i.e. the TER). In addressing this particular point, higher standards relating to the other Part L metrics (TFEE and TPER) could also be applied. Conversely, where local authorities look to introduce additional targets which do not conform with these assessment metrics (such as Energy Use Intensity or Passivhaus), these could be challenged.