R an Taisce (The National Trust for Ireland) v The Secretary of State for Energy and Climate Change NNB Generation Company Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lady Justice Gloster,Lord Justice Longmore |
| Judgment Date | 01 August 2014 |
| Neutral Citation | [2014] EWCA Civ 1111 |
| Docket Number | Case No: C1/2013/3763 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 August 2014 |
[2014] EWCA Civ 1111
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
MRS JUSTICE PATTERSON
CO/5020/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Sullivan
and
Lady Justice Gloster
Case No: C1/2013/3763
and
David Wolfe QC, John Kenny and Blinne Ni Ghralaigh (instructed by Leigh Day Solicitors) for the Appellants
Jonathan Swift QC, Rupert Warren QC and Jonathan Moffett (instructed by the Treasury Solicitor) for the Respondent
Nathalie Lieven QC and Hereward Phillpot (instructed by Herbert Smith Freehills LLP) for the Interested Party
Hearing dates: 15 th & 16 th July 2014
Introduction
In this claim for judicial review the Claimant challenges the decision dated 19 th March 2013 of the Defendant to make an Order ("the Order") granting development consent for the construction of a European pressurised reactor ("EPR") nuclear power station at Hinkley Point in Somerset ("HPC").
Background
The background to the claim is explained in considerable detail in the judgment of Patterson J [2013] EWHC 4161 (Admin) dismissing the Claimant's application for permission to apply for judicial review following a "rolled up" hearing. On the 27 th March 2014 I granted the Claimant permission to apply for judicial review and ordered that the application should be retained in the Court of Appeal.
The judge set out the factual background in paragraphs 5–62 of her judgment. There was no challenge to this aspect of her judgment, and I gratefully adopt, and will not repeat, all of the detail that is contained in those paragraphs.
There is no dispute as to the legal framework, which the judge set out in paragraphs 63–79 of her judgment. Article 7 of Directive 2011/92/EU ("the EIA Directive") is of central importance in this claim, and for convenience I set out the material paragraphs:
"1. Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so requests, the Member State in whose territory the project is intended to be carried out shall send to the affected Member State as soon as possible and no later than when informing its own public, inter alia:
(a) a description of the project, together with any available information on its possible transboundary impact;
(b) information on the nature of the decision which may be taken.
The Member State in whose territory the project is intended to be carried out shall give the other Member State a reasonable time in which to indicate whether it wishes to participate in the environmental decision-making procedures referred to in Article 2(2), and may include the information referred to in paragraph 2 of this Article.
2. If a Member State which receives information pursuant to paragraph 1 indicates that it intends to participate in the environmental decision-making procedures referred to in Article 2(2), the Member State in whose territory the project is intended to be carried out shall, if it has not already done so, send to the affected Member State the information required to be given pursuant to Article 6(2) and made available pursuant to points (a) and (b) of Article 6(3).
3. The Member States concerned, each insofar as it is concerned, shall also:
(a) Arrange for the information referred to in paragraphs 1 and 2 to be made available, within a reasonable time, to the authorities referred to in Article 6(1) and the public concerned in the territory of the Member State likely to be significantly affected; and
(b) ensure that the authorities referred to in Article 6(1) and the public concerned are given an opportunity, before development consent for the project is granted, to forward their opinion within a reasonable time on the information supplied to the competent authority in the Member State in whose territory the project is intended to be carried out."
It is common ground that the construction of HPC is a project which falls within Annex I to the EIA Directive. An environmental impact assessment was required and was carried out, and the necessary public consultation was undertaken within the United Kingdom, in accordance with Articles 4–6 of the Directive.
The Defendant did not carry out transboundary consultation in accordance with Article 7 because he did not consider that the HPC project was "likely to have significant effects on the environment in another Member State." A transboundary screening assessment carried out by the Planning Inspectorate ("PINS") on the Defendant's behalf, having referred to Appendix 7E to Volume 1 of the Interested Party's Environmental Statement, which contained an assessment of potential transboundary effects, said:
"On the basis that licensing and monitoring conditions are effective, impacts will not be significant."
The screening assessment also said, when dealing the "Probability":
"The probability of a radiological impact is considered to be low on the basis of the regulatory regimes in place.
There could be direct impacts related to the discharge of water during normal operational conditions. However, the discharge of water is expected to be controlled by appropriate licensing conditions and regular monitoring, and hence the probability of any adverse impacts is likely to be low.
The Developer has indicated that information is included in the Government's submission to the European Commission under Article 37 of the Euratom Treaty to show that transboundary impacts from accidents during operation or decommissioning will be so low as to be exempt from regulatory control."
The Austrian Government wrote to the Department of Energy and Climate Change indicating that it wished to participate in the process of considering the application for the Order. It was sent a copy of the application, and its response included an expert report. The decision letter dated 19 th March 2013 summarised the expert report, and the Defendant's response thereto, in paragraphs 6.6.2(ii) and (iii):
"6.6.2(ii) The expert report focuses on nuclear safety issues and as such has been reviewed by the Office of Nuclear Regulation ("ONR"). It draws heavily on documents published by the ONR during the Generic Design Assessment of the EPR. Although broadly technically sound, it tends to overemphasise the significance of those areas where ONR has in any event determined that more work needs to be done during any subsequent construction and commissioning of a power station based on the EPR (i.e. such as at Hinkley Point) as part of its own regulatory processes.
6.6.2(iii) The Austrian expert contends that in assessing the likely environmental effects of HPC project, I should take into account the effects of very low probability, extreme (or severe) accidents. Effectively the report says that unless it can be demonstrated that a severe accident (involving significant radiological release) cannot occur, then no matter how unlikely it is, I must consider its consequences as part of the development consent process, having regard, in particular, to the possible deleterious effects on Austria. However, in my view such accidents are so unlikely to occur that it would not be reasonable to "scope in" such an issue for environmental impact assessment purposes."
The Claimant contends that there was a failure to comply with Article 7 of the Directive. The Defendant failed to consult the public in the Republic of Ireland in accordance with Article 7 because:
(1) He misdirected himself as to the meaning of "likely" within Article 7 by "scoping out" severe nuclear accidents on the basis that they were very unlikely (Ground 1 "likelihood"); and
(2) Even if he was correct as to the meaning of "likely", the Defendant erred in relying on the existence of the UK nuclear regulatory regime to fill gaps in current knowledge when reaching his conclusion as to the likelihood of nuclear accidents (Ground 2 "regulatory regime").
Before considering these two grounds, it is necessary to understand the reference in the decision letter to "very low probability" severe accidents. The Austrian Expert Report had said that severe accidents with high releases of caesium-37 cannot be excluded, and there would be a need for official intervention in Austria after such an accident, but the report recognised that the calculated probability of such an accident is below 1E-7/a, which means that such an accident would not be expected to occur more frequently than once in every 10 million years of reactor operation: see paragraph 53 of Patterson J's judgment.
Discussion
Ground 1 Likelihood
The words "likely to have significant effects on the environment" occur in a number of places in the EIA Directive: in recitals (7) and (9), in Articles 1(1), 2(1) and 7(1), and in a slightly different formulation – "likely significant effects of the proposed project on the environment" – in Annex IV. In similar vein, an Environmental Statement must include "the data required to identify and assess the main effects which the project is likely to have on the environment": see Article 5(3).
Two points should be made at the outset of any consideration of what is meant by "likely" in Article 7(1). It is now common ground that:
(1) The words "likely to have significant effects on the environment" must have the...
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