R (on The Application of Innovia Cellophane Ltd and Innovia Films Ltd) v The Infrastructure Planning Commission Nnb Generation Company Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 04 November 2011 |
| Neutral Citation | [2011] EWHC 2883 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4685/2011 |
and
[2011] EWHC 2883 (Admin)
Mr Justice Cranston
Case No: CO/4685/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rupert Warren (instructed by Dickinson Dees) for the Claimant
David Forsdick (instructed by Treasury Solicitors) for the Defendant
Nathalie Lieven QC (instructed by Herbert Smith) for the Interested Party
Hearing dates: 1 November 2011
In this judicial review the claimants challenge the Infrastructure Planning Commission's decision of 19 April 2011 to grant consent under section 53 of the Planning Act 2008 for NNB Generation Company Ltd ("NNB") to enter land they own at Bridgwater, Somerset ("the land"). The access was sought to enable NNB to carry out surveys and other visits preliminary to their application to use the land for workers' accommodation during the construction of a new 3,260MW nuclear power station, with two reactors, the so called Hinkley Point C. The land lies approximately 10 miles from the Hinkley Point site. Collins J granted permission on 9 September 2011 and expedited matters. Under the authorisation NNB has entered the land on a number of occasions. Negotiations for NNB to purchase the land are still continuing.
BACKGROUND
The parties
The claimants are related companies. As their names suggest they are involved with cellophane film, which these days has a wide industrial use. The larger part of the Bridgwater land was from 1937 the site of a cellophane factory until it ceased operations in 2005. On the southern part of the land are a sports and social club and associated facilities. To the northeast of the land the claimants own adjoining property, another part of the former factory, Sydenham Manor, and a large area of undeveloped agricultural land, including pools known as the cellophane fishing pits. In July 2010 the claimants obtained planning permission in respect of the land and the adjoining property, which will allow them to construct some 1,000 houses. The claimants are currently undertaking works, including demolition and asbestos removal, to facilitate remediation of the land for this purpose.
The defendant, the Infrastructure Planning Commission ("the Commission"), was established under the Planning Act 2008 ("the 2008 Act"). It considers applications for development consent for what are known as nationally significant infrastructure projects, in broad terms large projects which are thought to support the economy and vital public services including power stations, highways, airports, railways, harbours, dams and reservoirs, and waste treatment works: part 2 of the 2008 Act. The government intends to change the functions of the Commission and transfer its decision making role to the Secretary of State, but that has no relevance to this judicial review.
NNB Generation Company Limited ("NNB"), the interested party, is an indirect subsidiary of EDF Energy (UK) Limited, a power generation company which is part of the EDF group. In relation to its proposal to construct the new nuclear power station at Hinkley Point, NNB submitted notifications of a proposed application to the Commission under section 46 of the 2008 Act – on 11 November 2009 (stage 1 consultation), 8 July 2010 (stage 2 consultation) and 24 February 2011 (stage 2 update consultation). It submitted the final application the day before the hearing. NNB's aim is to have the nuclear power station operational around the end of the decade. If the development consent order is granted, construction is due to begin in 2013.
The context
The provision of new nuclear power stations is a part of the government's energy policy. The need for new power stations was one aspect of the background to the enactment of the 2008 Act and the new statutory scheme it introduced for dealing with planning applications for nationally significant infrastructure projects. Government policy on projects such as new nuclear power stations is set out in a series of national policy statements designated under section 5 of the 2008 Act. The "Overarching National Policy Statement for Energy (EN-1)" was designated by the government on 19 July 2011. It states that, in order to secure energy supplies to enable the United Kingdom to meet its obligations to cut greenhouse gas emissions by eighty percent by 2050, there is an urgent need for new, particularly low carbon, nationally significant energy projects: para. 3.3.15.
As set out in EN-1, the government's stated policy is that new nuclear power stations should play a significant role in the future generation of low carbon forms of electricity. Its goal is for these new nuclear power stations to be operational as soon as possible from 2018, with deployment increasing up to 2025, when it is envisaged that all sites listed in the national policy statement as potentially suitable for development, including Hinkley Point, should be fully operational: paras. 3.5.9–3.5.10. In this context, EN-1 states that the Commission should assess the relevant development consent application on the basis that the need for new nuclear development has been demonstrated and is urgent, and should give substantial weight to the contribution which the project will make towards satisfying the urgent need when considering the application: paras. 3.1.3–3.1.4.
The accomodation
NNB first identified the claimants' Bridgwater land for accommodation for construction workers at Hinkley Point C in its stage 1 consultation documentation of November 2009. It was retained as part of its stage 2 consultation documentation of July 2010. The documentation referred to the building of short term, temporary accommodation for those workers who could not live locally. Occupancy of what was entitled residential accommodation was to be between 2014 to 2018, then tailing off, to finish completely in 2019. The proposed campus would be phased to match the demand for accommodation and would incorporate residential accommodation for up to 1,075 workers in individual en suite bedrooms. There would be separate restaurants, bars and other facilities. After their use, the document said, the buildings would be removed but the infrastructure for them would be designed to facilitate the later building of houses. However, the accommodation itself would not be suitable for conversion into housing. In the stage 2 update consultation document "Changes to Preferred Proposals", the proposed residential capacity of the site was reduced from 1,075 to either 850 or 1,000 persons. It is currently envisaged that there will be 850 bed-spaces, rather than 1000.
The rationale of the Bridgwater project for providing temporary accommodation is further explained in NNB's draft accommodation strategy and a draft workforce profile report of February 2011. In summary, it is said that to construct the nuclear power station Hinkley Point C a very large workforce will be required, many of whom will be skilled. That workforce needs to be drawn from a wide area. Two-thirds of the workforce are expected to be non-home based and to be at Hinkley Point for a period of months or up to one to two years. These workers are likely to move without their families although some would return home at weekends. If accommodation were not provided, they would either have to travel long distances or their presence could distort the local housing market. The provision of the accommodation is thus an essential part of the project to construct the nuclear power station. The accommodation is designed for single people for whom this is not their main or permanent home. Therefore the units are laid out as bed sits with no kitchen facilities, but with communal dining rooms, sports facilities and laundries. This type of accommodation for construction workers was successfully provided at Sizewell B, the last nuclear power station constructed in the United Kingdom. Local people found that it generated minimal disturbance and provided an effective means of managing the workforce.
History of negotiations
From late 2009 onwards there have been a series of negotiations between the claimants and NNB regarding NNB's acquisition of the land. There were also requests to the claimants for access to the land so that NNB could carry out surveys necessary for the development consent application for accommodation. There is a letter from NNB's agents to that effect on 30 March 2010. Following a meeting on 18 November 2010 NNB sent the claimants a list of proposed surveys. On 17 December 2010 NNB wrote a second letter, asking for a response by 22 December 2010. That letter arrived during the Christmas-New Year period and was not received until 4 January 2011. The claimants e-mailed NNB explaining that the letter of 17 December 2010 had just been received, and stating that a formal response would follow as soon as possible.
On 7 January 2011 NNB submitted an application to the Commission under section 53 of the 2008 Act for authorisation to access the land to carry out surveys. Just under three weeks later, on 26 January, the claimants' solicitors wrote to the Commission, setting out a number of objections to the application, including the fact that the application was premature because it was not being made as a last resort. The letter indicated that the claimants remained willing to negotiate reasonable access. Two months' deferral of the Commission's decision was suggested to see if progress...
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