Environment – Development consent order – Judicial review – Claimant applying for permission to apply for judicial review of decision of defendant secretary of state to grant development consent for construction of nuclear power station – Whether defendant failing to assess environmental impact of project – Whether properly taking account of advice of Natural England – Whether defendant properly considering alternative solutions under Habitats Regulations – Application dismissed
The claimant was a private company set up by a local community group as a special purpose vehicle to challenge the decision of the defendant secretary of state to make the Sizewell C (Nuclear Generating Station) Order 2022, under section 114 of the Planning Act 2008.
The order granted development consent for the construction, operation, maintenance and decommissioning of a nuclear power station.
The claimant contended that the defendant had failed to assess the environmental impacts of the “project” within the meaning of regulation 63 of the Conservation of Habitats and Species Regulations 2017, as the permanent potable water supply had not been included in the scope of the project assessed or to assess cumulatively the environmental impact of the power station with those of the permanent potable water supply.
It had also failed to supply lawfully adequate reasons for departing from the advice of Natural England that the permanent water supply was fundamental to the “operation of the project” and its effects.
Further, contrary to regulation 64(1) of the Habitats Regulations, the defendant had failed lawfully to consider “alternative solutions” to the power station before concluding that there were imperative reasons of overriding public importance for the project.
Finally, the defendant had made erroneous findings as to the contribution of the project to reducing greenhouse gas (GHG) emissions, the likely date by which the site would be clear of nuclear material and whether the operational GHG emissions would have a significant effect on the UK’s ability to meet its climate change obligations.
The claimant’s application for permission to apply for judicial review under section 118(1) of the 2008 Act was dealt with at a “rolled up” hearing.
Held: The application was dismissed.
(1) The mere fact that two sets of proposed works had a cumulative effect on the environment did not make them a single project.
A planning authority should be astute enough to ensure that a developer had not taken what was in reality one project and tried to obtain planning permission for the first part of it in order to try to make it easier of the project and thereby gain a foot in the door in relation to the remainder.
But the directives and jurisprudence of the European Court of Justice recognised that it was legitimate for different development proposals to be brought forward at different times, even though they might have a degree of interaction, if they were different “projects”.
The directives applied in such a way as to ensure appropriate scrutiny to protect the environment, whilst avoiding undue delay in the operation of the planning control system.
Where two or more linked sets of works were in contemplation, which were properly to be regarded as distinct projects, the objective of environmental protection was sufficiently secured under the directives by consideration of their cumulative effects, so far as that was reasonably possible, when permission for the first project was sought, combined with the requirement for subsequent scrutiny for the second and each subsequent project: R (on the application of Larkfleet Ltd) v South Kesteven District Council [2016] EWHC 195 (TCC); [2016] PLSCS 42; [2016] Env LR 4 and R (on the application of Wingfield) v Canterbury City Council [2020] EWCA Civ 1588; [2020] PLSCS 215; [2020] JPL 154 considered.
In the present case, the scope of the project for the purposes of regulation 63 was an evaluative judgment for the defendant to make and there was no basis on which that judgment could be said to be irrational or otherwise flawed.
The promoter of the project had not “sliced up” the development to make it easier to obtain consent for the first part of a larger project.
(2) There was uncertainty about what form the long-term water supply would take, to which the promoter had to react.
The need for the supply of utilities such as water was common to many forms of development.
The consequence of the claimant’s approach would be that where a new supply had yet to be identified by the relevant utility company, decisions on those development projects would have to be delayed until the company was able to define and decide upon a proposal.
That would lead to sclerosis in the planning system which it was the objective of the legislation and case law to avoid: R (Forest of Dean (Friends of the Earth)) v Forest of Dean District Council [2015] EWCA Civ 683; [2015] PLSCS 210; [2015] PTSR 1460 considered.
(3) It was well-established that a decision-maker might rationally reach the conclusion that the consideration of cumulative impacts from a subsequent development which was inchoate might be deferred to a later consent stage, as in the present case.
There was no basis on which to suggest that the reasons given for disagreeing with Natural England were irrational or legally inadequate.
The level of reasoning which the law expected of a decision-maker disagreeing with the views of an expert body might depend upon whether that view was an unreasoned statement or assertion, or a conclusion which was supported by an explanation and/or evidence.
It might also depend upon the nature of the subject-matter. In the present case, the defendant had adequately explained in his decision, read properly in context, why he disagreed with the bare assertions of Natural England.
(4) The objectives of government policy included the generation of clean energy but the central or essential objectives of that policy were not limited to that aim.
They also included diversity of methods of generation and security of supply. The government saw new nuclear power as an essential component of those objectives, just as wind and solar power.
In light of that policy, there was no basis to challenge the defendant’s approach which excluded alternative technologies as alternative solutions.
(5) There was ample quantitative material to support the defendant’s overall conclusions on climate change issues and he had not erred in concluding that the operational greenhouse gas emissions would not have a significant effect on the UK’s ability to meet its climate change obligations.
Following the Court of Appeal’s decision in R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214; [2020] EGLR 16, the legal position was clear.
David Wolfe KC, Ashley Bowes and Ruchi Parekh (instructed by Leigh Day Solicitors) appeared for the claimant; James Strachan KC and Rose Grogan (instructed by Government Legal Department) appeared for the defendant. Hereward Phillpot KC and Hugh Flanagan (instructed by Herbert Smith Freehills) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Together against Sizewell C Ltd) v Secretary of State for Energy, Security and Net Zero and another
