How far a local plan can go beyond Building Regulations

A local plan can require energy efficiency standards that exceed the Building Regulations. The statutory basis is section 1 of the Planning and Energy Act 2008, which lets a plan set reasonable requirements for the proportion of energy from local renewable or low carbon sources and for compliance with energy efficiency standards beyond the energy requirements of building regulations. That power is still on the statute book. The subsection dealing with energy efficiency standards was earmarked for repeal by the Deregulation Act 2015, and that repeal has never been brought into force, which is the single most important fact in this area and the one most often stated wrongly.

So the answer to how far a local plan can go beyond Building Regulations is: further than people assume in law, and less far than many authorities would like in practice, because ministerial statements and examination pressure operate on the same question from the other direction.

The statutory basis for local energy policy

Section 38(6) of the Planning and Compulsory Purchase Act 2004 makes determination in accordance with the development plan the starting point, unless material considerations indicate otherwise. A policy in an adopted plan therefore carries real weight from the day of adoption, whatever anyone thinks of it.

Section 1 of the 2008 Act supplies the vires for energy policies specifically. Three limbs: a proportion of energy used in development to come from renewable sources in the locality, a proportion to be low carbon energy from sources in the locality, and development to comply with energy efficiency standards that exceed the energy requirements of building regulations.

The word carrying the load is "reasonable". A requirement has to be reasonable, and reasonableness in this context is tested at examination through viability and deliverability evidence rather than through argument about ambition.

What the 2008 Act permits and what it does not

The power is about energy. It is not a general licence to impose any sustainability standard through the plan, and policies that stray into matters covered by other parts of the Building Regulations sit on weaker ground.

There is also a drafting distinction that decides more examinations than any point of principle. A policy expressed as a percentage improvement on the target emission rate, measured by the same compliance method as the Building Regulations, is a policy an inspector can test and an applicant can demonstrate. A policy expressed as an absolute energy use intensity figure, or as a space heating demand limit, uses a different metric from the regulatory one and attracts the objection that it is not measuring the same thing the Act refers to.

That is not a reason to avoid energy use intensity targets altogether. It is a reason to express them as a supporting requirement alongside a percentage improvement, rather than as the primary test.

Ministerial statements and their weight

Written ministerial statements are material considerations, not law. They do not amend the 2008 Act and they cannot remove a power Parliament conferred. They do carry weight, and inspectors give them weight both at examination and on appeal.

Successive statements have constrained local energy standards, most recently by asking authorities not to set standards beyond current Building Regulations unless there is a well reasoned and carefully costed rationale that does not compromise the delivery of homes, and by directing that any local energy efficiency standard should be expressed as a percentage uplift of a dwelling's target emission rate.

Read those requirements as a specification rather than a prohibition. They tell you what an acceptable policy looks like: costed, viability-tested, expressed in the regulatory metric, and justified by local circumstances rather than by general ambition.

Where the Secretary of State has intervened in emerging plans to remove or modify stretch energy policies, those interventions have themselves been contested, so check the current position before advising on a live plan rather than relying on a summary written a year ago.

How examination has treated stretch policies

The pattern across examinations is consistent enough to plan around. Policies survive where the authority has commissioned its own viability evidence testing the cost of the uplift against a range of site typologies, where the requirement uses the regulatory metric, and where there is a mechanism for schemes that cannot meet it.

They are modified or deleted where the evidence base is generic, where the policy sets a standard without a compliance route, or where it imposes a requirement that duplicates something the Building Regulations already control. An inspector asked to find a plan sound needs to be able to say the policy is justified and effective, and a policy nobody can demonstrate compliance with fails the effectiveness test regardless of its merits.

The transitional problem is real too. The Future Homes Standard changes the baseline, so a percentage uplift on the current target emission rate may deliver much less once the regulations move. Well drafted policies say what happens in that event, either by reference to the standard in force or by a review trigger.

Drafting that survives and drafting that does not

Carbon offset payments deserve a word. Where a policy requires a payment for residual emissions, the amount has to be justified, the money has to be spent on carbon reduction, and the obligation has to meet the statutory tests for planning obligations. An offset fund without a spending programme is an easy target at examination and on appeal.

Applying a stretch policy to a live application

For an applicant, the practical questions are narrow: is the policy in an adopted plan, what exactly does it require, how is compliance demonstrated, and what does the policy say about schemes that cannot comply.

If the plan is adopted and the policy is clear, argue about compliance rather than about validity. Challenging vires at application stage is expensive and rarely productive. If the policy sits in an emerging plan, its weight depends on the stage the plan has reached and the extent of unresolved objections, and a ministerial statement pointing the other way is a material consideration to put in the balance.

The Energy Statement should address the policy in its own terms: the baseline calculation, the improvement achieved, the measures delivering it, and the residual position. Our note on the energy modelling assumptions officers challenge covers the inputs that get queried.

Illustrative example. A policy requiring a 35 per cent improvement on the target emission rate, with a defined offset payment for the residual, is met by a scheme achieving 31 per cent through fabric and heat pumps, with the shortfall paid at the published rate. The developer's position is strongest when the statement shows the measures tested and rejected on cost or buildability, rather than simply reporting the number achieved. The figures are illustrative.

Where the uncertainty currently sits

Two things are unsettled, and it is more useful to say so than to pretend otherwise. The repeal of the energy efficiency limb of the 2008 Act remains on the statute book but unactivated, so the legal basis for stretch policies could change without primary legislation. And the relationship between local uplifts and the Future Homes Standard baseline will need to be worked through plan by plan as the regulations move.

Until then, the safe advice for authorities is to draft in the regulatory metric with costed evidence and a review trigger. For applicants, it is to read the adopted policy closely and to put the compliance case in the Sustainability Statement and the Whole Life Carbon Assessment where the plan asks for them, rather than treating national policy as an answer to a local requirement.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. This is general guidance, not legal advice: check the adopted policy and the current national position with your local planning authority or a qualified professional before relying on it.