Environment – Nuclear power station – Consultation – Defendant secretary of state giving consent for nuclear power station without transboundary consultation – Claimant applying for judicial review – Whether defendant misdirecting himself as to meaning of “likely to have significant effects on the environment” in article 7 of EIA Directive – Whether reference to EJC necessary – Whether defendant entitled to rely on UK nuclear regulatory regime – Application dismissed
The claimant National Trust for Ireland challenged the decision of the defendant secretary of state to grant development consent for a European pressurised reactor (EPR) nuclear power station at Hinkley Point in Somerset without consulting the Republic of Ireland. The High Court dismissed the claimant’s application for permission to apply for judicial review: [2013] EWHC 4161 (Admin). The Court of Appeal subsequently granted permission and ordered that the application should be retained in the Court of Appeal: [2004] EWCA Civ 666.
It was common ground that the construction of the nuclear power station (HPC) was a project which fell within annex I of Council Directive 2011/92/EU (the “EIA Directive”). An environmental impact assessment was required and carried out and the necessary public consultation was undertaken within the UK in accordance with articles 4-6 of the Directive. However, the claimant contended that the defendant had failed to comply with his obligation to undertake transboundary consultation, as required by article 7 of the Directive.
The defendant maintained that he had not carried out transboundary consultation because he did not consider that the HPC project was likely to have significant effects on the environment in another member state. Consultation was only required in relation to significant environmental effects of which there was a real risk or serious possibility, not those in relation to which there was only a bare possibility: Significant effects would only result from a nuclear disaster which was not likely because of the UK’s regulatory regime.
The claimant contended that the defendant had misdirected himself as to the meaning of “likely” within article 7 by excluding severe nuclear accidents on the basis that they were very unlikely; and even if he was correct as to the meaning of “likely”, the defendant had erred in relying on the existence of the UK nuclear regulatory regime to fill gaps in current knowledge when determining the likelihood of nuclear accidents.
Held: The application was dismissed.
(1) The ECJ had not ruled on the meaning of “likely to have significant effects on the environment” in the EIA Directive. The claimant’s submission, that a project was likely to have significant effects on the environment if such effects could not be excluded on the basis of objective evidence, founded on the decision of the ECJ in Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C–127/02) [2004] ECR I–7405 concerning article 6 of the Habitats Directive, was rejected.
While the relevant text of the EIA Directive and the Habitats Directive was essentially similar, and both Directives concerned environmental protection, there was a clear distinction between them. By contrast with the Habitats Directive, which focussed on the very high level of protection for special areas of conservation, the EIA Directive had a broad scope. It applied to all projects which were likely to have significant effects on the environment; and the environmental statements prepared for all such projects had to include information about all of the likely significant effects, and had to be subject to public consultation. Adopting the claimant’s approach to the meaning of likelihood would inevitably both materially increase the number of projects within annex II which would have to be the subject of an EIA and e number of likely significant effects to be included in all environmental statements, and consulted upon. Standing back from a detailed analysis of the two Directives, there was no obvious reason why the strict approach adopted in the Habitats Directive should apply to the screening stage in the EIA Directive which merely sought to ensure that any likely significant effects on the environment were identified and properly taken into account in the decision making process. In the wider context of environmental protection, a “real risk” test embodied the precautionary principle referred to in Waddenzee. The need to have regard to “the probability of the impact” would be redundant if the test of likelihood was whether the risk of any impact, however improbable, could be excluded on the basis of objective evidence: Evans v Secretary of State for Communities and Local Government [2013] EWCA Civ 114 considered.
(2) Although the threshold for the likelihood of significant effects on the environment for the purposes of the EIA Directive was an important issue, with EU-wide implications, a reference to the ECJ was not necessary for the purpose of determining the claim for judicial review. No matter how low the threshold for a likely significant effect on the environment might be set by the ECJ, the defendant’s decision would still be lawful: CILFIT (Srl) v Ministry of Health (Case C-283/81) [1982] ECR I-3415 considered.
(3) The defendant was in principle entitled to have regard to the UK nuclear regulatory regime when reaching a conclusion as to the likelihood of nuclear accidents. There would, almost inevitably in any major project, be gaps and uncertainties as to the detail, and the competent authority would have to form a judgment whether those gaps and uncertainties meant that there was a likelihood of significant environmental effects, or whether there was no such likelihood because it could be confident that the remaining details would be addressed in the relevant regulatory regime. That was what had happened on the facts of the present case: Gateshead Metropolitan Council v Secretary of State for the Environment [1995] Env LR 37 and R (on the application of Jones) v Secretary of State for the Environment [2004] P&C 14 considered.
David Wolfe QC and John Kenny (instructed by Leigh Day Solicitors) appeared for the appellant; Jonathan Swift QC, Rupert Warren QC and Jonathan Moffatt (instructed by the Treasury Solicitor) appeared for the respondent; Nathalie Lieven QC and Hereward Phillpot (instructed by Herbert Smith Freehills LLP) appeared for the interested party.
Eileen O’Grady, barrister
