Environment – Development consent order – National policy statement – First respondent secretary of state granting development consent order for gas-fired energy generating units – Appellant applying for judicial review – High Court dismissing application – Appellant appealing – Whether first respondent wrongly deciding need for development established by national policy statements so that quantitative assessment of need not necessary – Whether first respondent erring in approach to greenhouse gas emissions – Whether first respondent misapplying section 104(7) of Planning Act 2008 – Appeal dismissed
The second respondent applied for a development consent order under section 37 of the Planning Act 2008 for a nationally significant infrastructure project (NSIP), namely, the construction and operation of two gas-fired generating units situated at the existing Drax Power Station near Selby. The first respondent secretary of state appointed an examining authority to conduct an examination of the application and report to him with conclusions and a recommendation.
The appellant, an environmental law charity, objected to the development and took part in the examination, submitting written representations. The examining authority’s report recommended that consent be withheld but the first respondent disagreed and granted the application.
The appellant brought a claim under section 118 of the 2008 Act for judicial review of that decision which raised questions on the interpretation of the Overarching National Policy Statement for Energy (EN-1) and the National Policy Statement for Fossil Fuel Electricity Generating Infrastructure (EN-2), and their legal effect in the determination of an application for a development consent order to approve an NSIP. The High Court dismissed the application: [2020] EWHC 1303 (Admin).
The appellant appealed contending that the first respondent had: (i) misinterpreted EN-1 on the approach to assessing an energy NSIP’s contribution to satisfying the need for the proposed infrastructure; (ii) misinterpreted EN-1 on the approach to greenhouse gas emissions; and (iii) misapplied section 104(7) of the 2008 Act which governed the determination of an application for a development consent order where a relevant national policy statement had effect.
Held: The appeal was dismissed.
(1) The first respondent had not misinterpreted, or failed lawfully to apply, the relevant policy in EN-1. As always, it was necessary to undertake the exercise of policy interpretation by construing the language of the relevant policy objectively, in its context, and having regard to its evident purpose. Those general principles applied equally to the interpretation of national policy statements as they did to the interpretation of other planning policies.
Paragraph 5.2.2 of EN-1 stated that CO2 emissions were not reasons to prohibit consent for projects and that it was unnecessary to assess individual applications in terms of carbon emission against carbon budgets. The same policy concerning fossil fuel generating stations was in paragraph 2.5.2 of EN-2. Nowhere in EN-1 or EN-2 did it stipulate that a quantitative assessment of need always had to be carried out in a development consent order process. Part 3 of EN-1 established that, in decision-making, substantial weight should be given to considerations of need but the weight due to those considerations in a particular case was not immutably fixed. The decision-maker might determine whether there were reasons in the particular case for departing from the fundamental policy that substantial weight was accorded to considerations of need, by judging what weight would be “proportionate” to the “anticipated extent” of the development’s “actual contribution” to satisfying the need for infrastructure of that type. Those were matters of planning judgment, which involved looking into the future. As its language made clear, the assessment of weight had to be grounded in reality. The policy left the decision-maker with an ample discretion to decide how best to go about making the evaluative judgment required. There was no justification for reading into the policy a requirement that it should be approached on a quantitative basis.
(2) Read in its entirety and in context, as required, paragraph 5.2.2 did not diminish the need for relevant energy infrastructure established in national policy or undo the positive presumption in favour of granting consent to applications for energy NSIPs in paragraph 4.1.2. Nor did it prevent greenhouse gas emissions from being taken into account as a consideration attracting weight in a particular case. How much weight was for the decision-maker to resolve. It followed that, in a particular case, such weight could be significant, or even decisive, whether with or without another “adverse impact”. In the present case the first respondent had not misdirected herself on the meaning and effect of the relevant policies or misapplied them. She was also aware of the need to consider the impact of greenhouse gas emissions within the overall planning balance under section 104(7) and gave weight to them as a “significant adverse impact”, but not determinative weight. There was no legal flaw in that conclusion which was faithful to the policy in paragraph 5.2.2.
(3) The purpose of the balancing exercise in section 104(7) was to establish whether an exception should be made to the requirement in section 104(3) that an application for development consent had to be decided in accordance with any relevant national policy statement. The exercise involved a straightforward balance, setting adverse impact against benefits. It was not expressed as excluding considerations arising from national policy itself. It did not restrain the first respondent from bringing into account, and giving due weight to, the need for a particular type of infrastructure as recognised in a national policy statement, and setting it against any harm the development would cause.
In the present case, the first respondent identified her task under section 104(7). She did so accurately by setting out the provisions of both section 104(3) and (7) and directing herself that she would need to consider the impacts of any proposed development and weigh those against the benefits of any scheme. Furthermore, the first respondent undertook the balancing exercise under section 104(7) concluding that, on balance, the benefits of the development outweighed its adverse effects. There was nothing illogical or unlawful in recognising the general policy that greenhouse gas emissions were not reasons to prohibit the consenting of projects, but considering whether to give greater weight to greenhouse gas emissions in the context of the application and deciding not to do so.
Gregory Jones QC and Merrow Golden (instructed by ClientEarth) appeared for the appellant; Andrew Tait QC and Ned Westaway (instructed by the Government Legal Department) appeared for the first respondent; James Strachan QC and Mark Westmoreland Smith (instructed by Pinsent Masons LLP) appeared for the second respondent.
Eileen O’Grady, barrister
