Environment Transport and Planning in UK Law

4.50 The Secretary of State has considered the ExA's view [ER 7.5.7] that, even if the Proposed Development and the water supply are considered to be two separate projects, the cumulative effects associated with it should be assessed at this stage.

4.61 The Secretary of State notes the concerns raised by IPs regarding the prospect of a permanent desalination plant. The Secretary of State agrees with the Applicant that further detailed assessment of the impacts associated with a permanent desalination plant would be required if the Applicant were ultimately to pursue this option as part of its water supply strategy which is not the current intention.

4.65 In relation to the Habitats Regulations, the Secretary of State does not agree with Natural England that the source of any permanent water supply is, in itself, integral to the application. There will need to be a permanent water supply solution and the Secretary of State is satisfied that such a solution can be found before the first reactor is commissioned. However, the Secretary of State does not consider that the source of that supply is an integral part of this application.

In deciding whether a consultation exercise has gone “clearly and radically wrong”, the court will have regard to what are referred to as the “Gunning” or “Sedley” criteria. In R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168, Hodgson J adopted the submissions of Mr Sedley QC (as he then was) concerning the basic requirements for a consultation process to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage.

It was a clear legal error to regard this aspect of planning policy as a justification for limiting the scope of an EIA. An assumption made for planning purposes that non-planning regimes will operate effectively to avoid or mitigate significant environmental effects does not remove the obligation to identify and assess in the EIA the effects which the planning authority is assuming will be avoided or mitigated.

Since the site's location within Flood Zone 1 was not determinative of the question whether the sequential test should be applied to the proposed development, it fell to the inspector to decide that question in the exercise of his planning judgment. His reasoning in that paragraph reveals the basis on which he did so.

The third aspect of the context was the reports and debates which led to the 1949 Act. Two reports of committees under the chairmanship of Sir Arthur Hobhouse were described by the responsible minister Lewis Silkin MP as having had a “very great influence” on the proposed measures which became the 1949 Act and said the Government had “accepted them as to some 90 per cent”.