Town and country planning – Environment – Development consent order – Defendant secretary of state granting development consent for carbon capture and storage scheme – Claimant applying for judicial review – Whether defendant giving legally adequate reasons for decision – Whether defendant wrongly assessing “significant adverse effects” of greenhouse gases by reference to IEMA guidance – Whether defendant misinterpreting national policy – Application dismissed
The interested parties applied for development consent under section 114 of the Planning Act 2008 for a new gas-fired electricity generating station with post-combustion carbon capture on Teesside. The scheme comprised a full-chain carbon capture utilisation and storage (CCUS) project including: a new gas-fired electricity generating station with post-combustion carbon capture plant; gas, electricity and water connections; a carbon dioxide pipeline network for gathering CO2 from a cluster of local industries on Teesside; and a high-pressure CO2 compressor station and an offshore CO2 export pipeline.
The claimant applied for judicial review of the decision of the defendant secretary of state to grant development consent on the grounds that: (i) the decision letter did not give legally adequate reasons for concluding that the development would help deliver the government’s net zero commitment; (ii) there was a demonstrable flaw in the reasoning, in that the defendant assessed the greenhouse gas (GHG) emissions from the development as having “significant adverse effects” under the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 by reference to the Institute of Environmental Management and Assessment (IEMA) Guidance; (iii) the defendant misinterpreted national policies and erred in law and/or failed to reach a reasoned conclusion pursuant to regulation 21 of the EIA Regulations; and (iv) the defendant failed to reach her own view on the need for the scheme and the weight to be given to need in the planning balance.
Held: The application was dismissed.
(1) The application was for development consent under section 114 of the 2008 Act, which provided that the secretary of state had to either grant the development consent order (DCO) or refuse consent. Section 116 required a statement of reasons to be given.
Section 104 of the 2008 Act stated that the secretary had to decide an application for a DCO in accordance with the applicable national policy statement, unless she was satisfied that one of a number of factors applied, including that the adverse impact of the proposed development would outweigh its benefits. Matters settled by a national policy statement should not be revised or reopened in the DCO process.
Part 2 of the 2008 Act provided for the creation and designation of national policy statements dealing with national infrastructure, including their designation under section 5 after a specific process had been followed. A DCO was not to be granted without an environmental impact assessment. That process had to identify, describe and assess the direct and indirect significant effects of the development on climate: R (ClientEarth) v Secretary of State for Business, Energy & Industrial Strategy [2021] EWCA Civ 43; [2021] PLSCS 18; [2021] PTSR 1400 and R (Spurrier) v Secretary of State for Transport [2019] EWHC 1070 considered.
(2) The environmental statement had to describe the likely significant effects of the project, and particularly the relevant additional information from schedule 4, paragraph 5 of which indicated that the cumulative effects of the scheme with “other existing and/or approved projects” might need to be considered.
The secretary of state had to examine the environmental information (which included the environmental statement), reach a reasoned conclusion on the environmental impacts and integrate the conclusion into the decision on whether to grant development consent.
(3) Regulation 30(2)(b)(i)(aa) required the decision to include a “reasoned conclusion” on the significant effects of the development on the environment, taking into account the results of the examination.
There was no definition of “significant” in the EIA Regulations. Issues as to whether an effect was significant and the adequacy of any assessment of significant effects were matters of judgement for the decision-maker.
In addition, the court had to allow a substantial margin of appreciation to judgements based upon scientific, technical or predictive assessments by those with appropriate expertise: R (Goesa) v Eastleigh Borough Council [2022] EWHC 1221 (Admin); [2022] PLSCS 83; [2022] PTSR 1473 and R (Boswell) v Secretary of State for Transport [2024] EWCA Civ 145; [2024] EGLR 17 considered.
(4) At the heart of the case was the claimant’s argument that the secretary of state assessed the significance of the environmental impacts of GHG emissions from the scheme in accordance with the IEMA guidance. The aim of the guide was to assist GHG practitioners in assessing GHG emissions.
Although the interested parties used the IEMA guidance, and that was relied upon by the examining authority, if the decision letter was read sensibly, and as a whole, it was clear that the defendant was not relying on IEMA guidance for her conclusion on significance. She did not refer to the IEMA guidance, nor did she refer to the analysis set out in that guidance. On the other hand, she did refer to the national policy statements and the reference therein to significant adverse effects of GHG emissions. If the defendant had been relying on IEMA guidance, it could reasonably be expected that she would have said so.
Most importantly, the decision letter made perfectly good sense if the defendant was assessing significance on the simple basis of national policy statements.
(5) The defendant had found in the decision letter that the scheme supported the transition to net zero. That showed that the defendant was applying the more absolute analysis of significance at the EIA stage, and weighing that against the broader policy context of transition to net zero at the substantive stage. There was no logical flaw in the reasoning.
Even if the defendant had been relying on IEMA guidance, it could not have made any difference to the ultimate conclusion. The development was strongly supported in both national planning and energy policy. It was clear to any fair reader of the examining authority’s report and the decision letter why the defendant supported the scheme despite the level of emissions. The claimant might disagree with the analysis and the weight given to different factors, but the reasoning behind the conclusions were both clear and lawful.
The language and guidance of the relevant national policy statements comfortably encapsulated both assessment of impacts for the purposes of EIA and for the consideration of weight to be attached in the determination stage.
Catherine Dobson, Isabella Buono and Alex Shattock (instructed by Leigh Day Solicitors) appeared for the claimant; Rose Grogan (instructed by Government Legal Department) appeared for the defendant; Hereward Phillpot KC and Isabella Tafur (instructed by Freshfields Bruckhaus Deringer LLP) appeared for the interested parties.
Eileen O’Grady, barrister
