R an Taisce (The National Trust for Ireland) v The Secretary of State for Energy and Climate Change NNB Generation Company Ltd, The Minister for Environment, Community and Local Government, Ireland and Another (Interested Parties)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMrs Justice Patterson
Judgment Date20 December 2013
Neutral Citation[2013] EWHC 4161 (Admin)
Docket NumberCase No: CO/5020/2013

[2013] EWHC 4161 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Patterson

Case No: CO/5020/2013

Between:
The Queen on the application of an Taisce (The National Trust for Ireland)
Claimant
and
The Secretary of State for Energy and Climate Change
Defendant
NNB Generation Company Limited, The Minister for Environment, Community and Local Government, Ireland
The Attorney General, Ireland
Interested Parties

David Wolfe QC and John Kenny B.L (instructed by Leigh Day) for the Claimant

Jonathan Swift QC, Rupert Warren QC and Jonathan Moffett (instructed by Treasury Solicitor) for the Defendant

Nathalie Lieven QC and Hereward Phillpot (instructed by Herbert Smith Freehills) for the Interested Party

Mrs Justice Patterson
1

This is an application by An Taisce, the National Trust for Ireland, to seek permission to apply for judicial review of a decision on the part of the Secretary of State for Energy and Climate Change (the defendant) to grant a development consent order on the 19 th March 2013 for a new nuclear power station at Hinkley Point C (HPC). The case comes before the court as a "rolled up" hearing with the agreement of all parties.

2

An Taisce, the National Trust for Ireland, was founded as a charity in 1948. It is one of Ireland's oldest and largest NGOs. The trust is a prescribed consultee for a number of different Irish government policy formulation and consent processes, including those relating to planning applications, that require an Environmental Impact Assessment (EIA). The Trust's objectives include the protection of Ireland's built and natural environment. It sees compliance with international, EU and national legislation as fundamental to that objective.

3

The Trust's claim is that the defendant failed to comply with Regulation 24 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 and/or Article 7 of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment in considering whether HPC was likely to have significant effects on the environment in the Republic of Ireland, another member state. The Trust contends that transboundary consultation should have been undertaken with the Irish people.

4

In particular, the claimant alleges that,

i) the defendant misdirected himself as to the meaning of Regulation 24 and Article 7 in considering only impacts arising from the ordinary regulated operation of the nuclear power station and not "unlikely", but nevertheless possible, impacts from other scenarios;

ii) the defendant failed to comply with Regulation 24 and Article 7 by omitting to take into account the possible impacts arising from unplanned or accidental effects of the development; and/or

iii) because the meaning of Article 7 is unclear the court should make a reference to the CJEU.

The first interested party (NNB) is wholly owned by NNB Holding Company which in turn is a wholly owned subsidiary of EDF Energy Holdings Limited, one of the largest power generation companies in the UK.

Factual background

5

On the 31 st October 2011 NNB made an application to the Infrastructure Planning Commission (IPC) for a Development Consent Order (DCO) for a new nuclear power station at HPC. The proposed site is immediately to the west of the existing Hinkley Point power stations in Somerset.

6

The consent procedure for a new nuclear power station is understandably complex and involves various consents and permissions. The following paragraphs provide an outline of the background and processes.

7

In January 2008 the government published a White Paper entitled 'Meeting the Energy Challenge'. Under that, companies would be able to build new nuclear power stations which were to be subject to the same regulation of safety, security and environmental matters as existing nuclear installations. The government proposed to take steps to facilitate the development of such stations by using powers in the then planning bill (now the Planning Act 2008) to ensure that nationally significant infrastructure projects (NSIP), of which nuclear power stations were an example, were provided through the use of National Policy Statements (NPS) which set the national need and identified possible sites. Once a planning application was made, that was followed by an examination of the site-specific proposal. That was initially undertaken by the IPC.

8

The White Paper provided that a strategic siting assessment and strategic environmental assessment would have to be undertaken. In addition, there would be a generic design process that would set out the basis upon which the Office of Nuclear Regulation (ONR) and the Environment Agency ( EA) would review new build nuclear reactor designs. To meet the requirements of EU and UK law new nuclear practises were to be required to demonstrate that their benefits outweighed any health detriment.

9

In November 2009 the government published its draft energy policy statements. There was an overarching draft NPS for energy proposals (EN-1) and a series of topic-specific policy papers. The draft NPS for nuclear generation (EN-6) contained a list of ten sites in England and Wales, including HPC, which the government considered to be potentially suitable for new nuclear power stations by 2025. The sites had been identified through a strategic siting assessment process. The draft NPS had been subject to an appraisal of sustainability to examine the likely social, economic and environmental effects of designating nuclear power stations and incorporated an assessment in accordance with the requirement of the EU Directive on strategic environmental assessment.

10

Between November 2009 and February 2010 public consultation on the draft NPS took place. Representations were received from the Irish government. The draft recognised the possibility of transboundary effects in the event of a significant unintended release of radioactive emissions but judged that the risk of such an accident was very small because of the strict regulatory regime in the UK. The claimant took no part in the consultation process.

11

In October 2010, after considering the consultation responses a revised draft, EN-6, was published, as was a revised appraisal of sustainability. The number of prospective sites was reduced to 8 (but still included HPC). Consultation on the draft ran until January 2011. The revised appraisal of sustainability noted that the Euratom Treaty would require the UK to submit to the EC information to enable the Commission to determine whether the implementation of a project was liable to result in radioactive contamination of water, soil or air space of another member state. Permission to make radioactive discharges and disposals would not be given in the UK unless a favourable opinion was received from the European Commission.

12

The draft continued,

"7.2.73 there is a risk of accidental release of radioactive emissions associated with new nuclear power stations which are built in line with the revised nuclear NPS. However, the risk of such an accident is judged to be very small because of the strict regulatory regime in the UK. The nuclear regulatory bodies will need to be satisfied that the radiological and other risk to the public associated with accidental releases of radioactive substances are as low as reasonably practicable and within relevant radiological risk limit. As part of the site licensing process, a potential operator will be required to demonstrate that the nuclear facility is designed and can be operated such that several layers of protection and defence are provided against significant faults or failures, that accident management and emergency preparedness strategies are in place and that all reasonably practicable steps have been taken to minimise the radiological consequences of an accident."

13

On the 18 th July 2011 the House of Commons debated and approved the six NPS for energy, including NPS EN-6. On the 19 th July 2011 the Secretary of State designated the NPS under the Planning Act 2008.

14

NPS EN-6 explains the relationship between the regulatory justification process and the planning regime. It sets out the role of the regulators in the IPC's consideration of applications for new nuclear power stations and the interaction that is required between the IPC and the other relevant regulators. Those regulators are the EA and ONR (which has taken over the role of the Department for Transport).

15

The document emphasises the separate nature of the licensing and permitting of nuclear power stations by the nuclear regulators which nuclear power stations have to undergo. In paragraph 2.73 it states,

"When considering a development consent application the IPC should act on the basis that;

• the relevant licensing and permitting regime will be properly applied and enforced, and

• it should not duplicate consideration of matters that are within the remit of the nuclear regulators;

• It should not delay a decision as to whether to grant consent until completion of the licensing and permitting process."

16

Matters which the IPC should not duplicate are the Generic Design Assessment (GDA), site licensing and environmental permitting processes. The nuclear regulators are to assess also external hazards to a proposed nuclear power station including the reasonably foreseeable effects of climate change.

17

Annex B to the NPS considers the sites listed as potentially suitable for new nuclear power stations. Section C5 considers HPC.

18

In October 2010 the Secretary of State made the...

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