By David Browne
The Written Ministerial Statement of 25 March 2015 (WMS) by the then Secretary of State Eric Pickles set out that, from the date that the Deregulation Bill 2015 received Royal Assent, local authorities should not set in their emerging local plans or associated documents any additional local technical standards or requirements relating to the construction, internal layout, or performance of new dwellings. This included any policy requiring any level of the Code for Sustainable Homes to be achieved by new development. The WMS applies to England only.
A key exception to that general rule was that until amendments were made to section 1 of the Planning and Energy Act 2008 by the Deregulation Bill 2015, local authorities retained the right to set and apply policies in their local plans which required compliance with energy performance standards that exceed the requirements of the Building Regulations. Those amendments have still not been brought into force.
We outline some key aspects of what this means and how it applies to local authorities.
What is an energy efficiency standard?
To understand the WMS it is important to read it in the context of section 1 of the Planning and Energy Act 2008 (“the 2008 Act”).
The 2008 Act provides that local authorities may include in their local plans reasonable requirements for development in their area to comply with energy efficiency standards that exceed the energy requirements of Building Regulations.
Both “energy efficiency standards” and “energy requirements” are defined terms in the 2008 Act. "Energy efficiency standards” means standards for the purpose of furthering energy efficiency that are set out or referred to in regulations made by an appropriate national authority or endorsed in national policies or guidance issued by them. In England the appropriate national authority is the Secretary of State. “Energy requirements” means the requirements of Building Regulations in respect of energy performance or conservation of fuel and power.
Applying these definitions, a natural reading of the 2008 Act is that it provides a power for local authorities to incorporate existing energy efficiency standards which exceed the Building Regulations requirements in respect of energy performance and conservation of fuel and power, as long as these are created or endorsed by the appropriate national authority in their local plans.
This interpretation of the 2008 Act is in accordance with the WMS which explains the position in the 2008 Act as providing that local authorities have the power to “set and apply policies in their local plans which require compliance with energy performance standards that exceed the energy requirements of Building Regulations”.
Can local authorities continue to require compliance with the Code for Sustainable Homes Level 4?
The WMS states that it sets out the government’s new national planning policy on the setting of technical standards for new dwellings. It then goes on to make a number of statements which can be read as an endorsement by the Secretary of State of energy efficiency standards set at a level equivalent to the Code for Sustainable Homes Level 4.
It can therefore be argued that energy efficiency standards which are equivalent to the Code for Sustainable Homes Level 4 have been endorsed by the appropriate national authority in national policy or guidance and so are energy efficiency standards for the purpose of the 2008 Act. This is the approach which has been taken by several local authorities that have successfully added such standards to their local plans, following publication of the WMS.
Can local authorities require compliance with energy efficiency standards above the Code for Sustainable Homes Level 4?
The 2008 Act makes clear that any energy efficiency standard must be in accordance with national policy and guidance, which would include the WMS. The WMS is clear that the government would not expect local authorities to set policies requiring standards above the Code for Sustainable Homes Level 4. Unless an argument could be made that this prohibition in the WMS was no longer national policy, local authorities cannot set energy efficiency standards at a higher level.
How readily could the government remove the power to add such energy efficiency standards to local plans?
The WMS ends with a warning that if the government does not consider that the policies it sets out are being accorded sufficient weight by local authorities, it will consider bringing forward new legislation to secure implementation.
In relation to energy efficiency standards specifically, the Secretary of State can amend section 1 of the 2008 Act by bringing into force the provisions in the Deregulation Act 2015. These would remove the right for local authorities to add energy efficiency policies to their local plans which exceed the requirements of Building Regulations in relation to dwellings.
The 2008 Act also makes clear that any energy efficiency policies must be in accordance with national policy. The Secretary of State could readily withdraw the statements found in the WMS which support Code 4 by the publication of further national policy, including a further written ministerial statement. If this occurred, standards equivalent to Code 4 could no longer be added.
What is expected to happen next?
Since the WMS was published in 2015, there have been a number of changes in government policy on energy efficiency, and indeed a number of changes of government. These changes have included, for example, the scrapping of the zero carbon homes standard which formed a key part of the context for the statements of the WMS.
It is noticeable that over the course of the last three years no government has brought into force the amendments to the 2008 Act which would have stopped local authorities from adopting energy efficiency standards above the requirements of Building Regulations.
The government is currently consulting on the draft text of the revised national planning policy framework (NPPF) including paragraph 149, which provides that any local requirements for sustainability of buildings should reflect the government's policy for national technical standards. The government is specifically seeking responses on whether draft paragraph 149 should be amended "to reflect the ambitions in the Clean Growth Strategy to reduce emissions from buildings".
Later this year, the government also intends to consult on the energy performance standards contained within the Building Regulations as it develops its policy on the role of local authorities in improving the energy performance of buildings. It is to be hoped that these consultations will lead to a clear statement on the government's policy on the adoption of energy efficiency standards in local plans.
Conclusion
Local authorities can adopt energy efficiency standards above the requirements contained in the Building Regulations. There are good reasons for concluding that these requirements may be equivalent to but not more stringent than those previously contained in the Code for Sustainable Homes Code 4.
On a natural reading of the underlying legislation “energy efficiency standards” includes energy performance measures, which is the interpretation taken in the WMS. The government is consulting on its policy in this area which should lead to further clarity and potential development during the course of this year.