Government faces High Court over regulation u-turn

The government could be taken to the High Court over its decision to axe a proposed regulation that would have forced homeowners to include energy-efficiency measures in home improvements.

The Association for the Conservation of Energy (ACE) has sent a letter to the communities department and Department of Energy and Climate Change demanding that they consult on the changes, known as consequential improvements, this year, or face court action.

The proposal would have forced all building owners who carry out major refurbishments to spend a further 10% of the cost on improving the energy efficiency of the existing building. At present the policy only applies to non-residential buildings over 1,000m2.

The ACE said the government had breached “procedural legitimate expectations” raised by February’s Heat and Energy Saving Strategy. This said that removing the 1,000m2 threshold would be considered in this year’s consultation on changes to Part L of the Building Regulations. However, housing minister John Healey pulled the proposal from the paper, launched in June, at the last minute.

Lawyers advised the ACE that failing to issue the consultation constituted an abuse of power.

The ACE does appear to have reasonable grounds. But it all comes down to the wording

Simon Read, Pinsent Masons

Healey told Building at the time: “In my view, at present, with the economy in downturn, the argument for doing this, and the environmental gain, didn’t offset the cost and complexity that I felt was in the proposals.”

David Strong, chief executive of consultancy Inbuilt, said: “The omission represents one of the single greatest missed opportunities for improving the existing stock and cutting carbon dioxide in a cost-efficient way.”

Simon Read, a solicitor with Pinsent Masons, said there was a precedent in the way Greenpeace forced the government to fulfil promises to consult on nuclear policy in 2007. He said: “In comparison with the Greenpeace issue, the ACE does appear to have reasonable grounds. But it all comes down to the wording.”

Andrew Warren, ACE chief executive, said the action would be dropped if the government changed its mind.

A communities department spokesperson said the department was “considering” the ACE’s letter. He added: “We are continuing to consider the full range of options.”