The Court of Appeal ruled that it is lawful to defer appropriate assessment of the impact of the water supply under regulation 63 of the Habitats Regulations to a later stage if the information is not available at the time of the decision of the application for development consent.
In R (on the application of Together Against Sizewell C Ltd) v Secretary of State for Energy Security and Net Zero and another [2023] EWCA Civ 1517, the court dismissed the challenge against the secretary of state for business, energy and industrial strategy’s decision to grant planning permission for the nuclear plant Sizewell C.
The development proposed to construct a bespoke desalinisation plant for the water supply during construction stage but did not identify a permanent water supply for the operation stage.
Instead, the developer relied on the duty of Northumbrian Water Ltd under the Water Industry Act 1991 to identify new water resources to meet the demand forecast for its region via the preparation and publication of a Water Resources Management Plan for Essex and Suffolk over the period 2025 to 2050. The development was granted permission.
The campaign group Together Against Sizewell C challenged the decision, alleging that the secretary of state failed to assess the environmental impacts of the nuclear plant because no permanent water supply was identified.
The High Court dismissed the claim ([2023] EWHC 1526 (Admin); [2023] PLSCS 107). The judge considered utilities like water are needed for most developments and utility companies should make additional provisions to supply existing and new customers. However, the supply cannot be considered part of each development, otherwise this would lead to “sclerosis in the planning system”.
The High Court judgment was challenged on two grounds, but the Court of Appeal dismissed the claim.
The first ground concerned whether the secretary of state was entitled in law to consider the nuclear development and the supply of potable water as two separate projects.
The definition of what constitutes a project depends on the facts and circumstances of each case, but three general pointers were provided: (i) the developments should not constitute salami-slicing; (ii) the existence of cumulative impacts does not mean that two projects should be considered as one’; and (iii) evaluation should be carried out of “common ownership”, “functional interdependence”, “simultaneous determination”, and whether each project stands on its own and would be promoted independently.
No inevitable link was identified between the nuclear plant and the supply of water, so the separation was found lawful by the Court of Appeal.
The second ground concerned whether, if the water supply was regarded as a separate project, the secretary of state had to carry out a cumulative assessment of its effects together with the effects from the nuclear plant.
The judgment considered that deferring the appropriate assessment of the impact of the permanent water supply under regulation 63 of the habitats regulations to a later stage was not irrational because the information necessary for a proper assessment was not available at the time of his decision.
While the case concerns the development of a nuclear plant, the consequences regarding the deferral of the assessment of the water supply are applicable to other types of projects.
Stefano D’Ambrosio is a solicitor in the planning and environmental team at Irwin Mitchell
