R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Lewis |
| Judgment Date | 21 January 2021 |
| Neutral Citation | [2021] EWCA Civ 43 |
| Date | 21 January 2021 |
| Docket Number | Case No: C1/2020/0998/QBACF |
| Court | Court of Appeal (Civil Division) |
and
[2021] EWCA Civ 43
Lord Justice Lewison
Sir Keith Lindblom, SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice Lewis
Case No: C1/2020/0998/QBACF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(PLANNING COURT)
THE HONOURABLE MR JUSTICE HOLGATE
Royal Courts of Justice
Strand, London, WC2A 2LL
Gregory Jones Q.C. and Merrow Golden (instructed by ClientEarth) for the Appellant
Andrew Tait Q.C. and Ned Westaway (instructed by the Government Legal Department) for the First Respondent
James Strachan Q.C. and Mark Westmoreland Smith (instructed by Pinsent Masons LLP) for the Second Respondent
Hearing dates: 17 and 18 November 2020
Approved Judgment
The Senior President of Tribunals:
Introduction
This appeal raises questions on the interpretation of the Overarching National Policy Statement for Energy (“EN-1”) and the National Policy Statement for Fossil Fuel Electricity Generating Infrastructure (“EN-2”), both designated in July 2011, and their legal effect in the determination of an application for a development consent order to approve a nationally significant infrastructure project (“NSIP”). The NSIP in question is the proposal to construct and operate two gas-fired generating units at the Drax Power Station, near Selby in North Yorkshire.
With permission granted by Lewison L.J., the appellant, ClientEarth, appeals against the order of Holgate J., dated 22 May 2020, dismissing its claim for judicial review of the decision of the first respondent, the Secretary of State for Business, Energy and Industrial Strategy, on 4 October 2019, to make the Drax Power (Generating Stations) Order 2019 (S.I. 2019 No.1315) (“the DCO”), approving an application made by the second respondent, Drax Power Ltd. The claim was brought by ClientEarth under section 118 of the Planning Act 2008 (“the Planning Act”).
The proposed generating units, known as “Unit X” and “Unit Y”, would incorporate parts of two coal-fired units currently in operation at the site, which are due to be decommissioned in 2022. They would be fuelled by natural gas. Each would have a capacity of up to 1,800 megawatts, battery storage of up to 100 megawatts and carbon capture and storage reserve space, giving a total capacity of up to 3,800 megawatts, with a designed operational life of up to 25 years. That development is an NSIP.
Drax Power made its application for a development consent order under section 37 of the Planning Act, in May 2018. In July 2018 the Secretary of State appointed an examining authority to conduct an examination of the application and report to him with conclusions and a recommendation. The examination began in October 2018 and ended in April 2019. ClientEarth objected to the development, and took part in the examination, submitting written representations. The examining authority's report was produced in July 2019. It recommended that consent be withheld. In her decision letter of 4 October 2019 the Secretary of State disagreed with that recommendation.
The issues in the appeal
Lewison L.J. granted permission to appeal on three grounds, which raise these issues: first, whether the Secretary of State misinterpreted EN-1 on the approach to assessing an energy NSIP's contribution to satisfying the need for the type of infrastructure proposed; second, whether the Secretary of State misinterpreted EN-1 on the approach to greenhouse gas emissions; and third, whether the Secretary of State misapplied section 104(7) of the Planning Act.
The Planning Act
Section 5 of the Planning Act provides for the designation by the Secretary of State of a national policy statement, which “sets out national policy in relation to one or more specified descriptions of development” (subsection (1)(b)). The policy in a national policy statement “may in particular”, among other things, “set out, in relation to a specified description of development, the amount, type or size of development of that description which is appropriate nationally or for a specified area” (subsection (5)(a)), “set out the relative weight to be given to specified criteria” (subsection (5)(c)), and “set out circumstances in which it is appropriate for a specified type of action to be taken to mitigate the impact of a specified description of development” (subsection (5)(f)). Section 6(1) requires the Secretary of State to “review each national policy statement whenever [he] thinks it appropriate to do so”.
Section 104 governs the determination of an application for a development consent order where a relevant national policy statement has effect. In deciding the application, the Secretary of State is required to “have regard” to any “relevant national policy statement” (subsection (2)(a)), and “any other matters which [he] thinks are both important and relevant to [his] decision” (subsection (2)(d)). Section 104(3) states:
“(3) The Secretary of State must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of subsections (4) to (8) applies.”
Section 104(7) states:
“(7) This subsection applies if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits.”
Section 106 provides that in deciding an application, the Secretary of State “may disregard representations” if he considers that they “relate to the merits of policy set out in a national policy statement” (subsection (1)(b)).
EN-1
EN-1 sets out the Government's policy for the delivery of major energy infrastructure. It is to be read together with five technology-specific national policy statements for the energy sector (paragraph 1.4.1). The relevant technology-specific national policy statement is EN-2. Paragraph 1.7.2 says that the energy national policy statements “should speed up the transition to a low carbon economy and thus help to realise UK climate change commitments sooner than continuation under the current planning system”, but recognises the difficulty in predicting “the mix of technology that will be delivered by the market against the framework set by the Government”.
Part 2 contains the Government's policy on energy infrastructure development. Paragraph 2.1.1 refers to three goals – reducing carbon emissions, energy security and affordability.
The text in section 2.2, “The road to 2050”, assumed the target then in place under the Climate Change Act 2008 (“the Climate Change Act”) of reducing greenhouse gas emissions in 2050 by at least 80% compared to 1990 levels. This would require the “electrification” of much of the United Kingdom's heating, industry and transport (paragraph 2.2.1). Delivery of this change would be “a major challenge not least for energy providers …” (paragraph 2.2.2).
Paragraph 2.2.4 states:
“2.2.4 Not all aspects of Government energy and climate change policy will be relevant to [Infrastructure Planning Commission (“IPC”)] decisions or planning decisions by local authorities, and the planning system is only one of a number of vehicles that helps to deliver Government energy and climate change policy. The role of the planning system is to provide a framework which permits the construction of whatever Government – and players in the market responding to rules, incentives or signals from Government – have identified as the types of infrastructure we need in the places where it is acceptable in planning terms. … .”
The proposed transition to a low carbon economy is described, and the role of the Climate Change Act in driving that transition by delivering reductions in emissions through a series of five-year carbon budgets setting a trajectory to 2050 is explained (paragraphs 2.2.5 to 2.2.11). It is stated that “[the] EU Emissions Trading System … forms the cornerstone of UK action to reduce greenhouse gas emissions from the power sector” (paragraph 2.2.12). Paragraph 2.2.19 states:
“2.2.19 The Planning Act and any market reforms associated with the Electricity Market Reform project will complement each other and are consistent with the Government's established view that the development of new energy infrastructure is market-based. While the Government may choose to influence developers in one way or another to propose to build particular types of infrastructure, it remains a matter for the market to decide where and how to build, as market mechanisms will deliver the required infrastructure most efficiently. Against this background of possibly changing market structures, developers will still need development consent for each proposal. Whatever incentives, rules or other signals developers are responding to, the Government believes that the NPSs set out planning policies which both respect the principles of sustainable development and are capable of facilitating, for the foreseeable future, the consenting of energy infrastructure on the scale and of the kinds necessary to help us maintain safe, secure, affordable and increasingly low carbon supplies of energy.”
In the following paragraphs emphasis is placed on the security of energy supplies. That the United Kingdom should continue to have “secure and reliable supplies of electricity” as the transition is made to a low carbon economy is said to be “critical”. The need for “diversity” in technologies and fuels is stressed (paragraph 2.2.20). Paragraph 2.2.23 says that the United Kingdom “must … reduce over time its dependence on fossil fuels, particularly unabated combustion”, but acknowledges that “some fossil fuels will still be needed during the transition to a low carbon economy”.
Policy for decision-making is set out in Part 3, “The need for new...
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