The King (on the application of) Andrew Boswell v The Secretary of State for Energy Security and Net Zero

Hearing dates: 4 and 5 March 2025

APPROVED JUDGMENT

This judgment was handed down remotely at 2pm on 22 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Sir Keith Lindblom SPT, Lord Justice Stuart-Smith and

Introduction

At the heart of this case, and this appeal, lies a basic question bearing on planning decision-making under the regime for “nationally significant infrastructure projects” in the Planning Act 2008. Did the Secretary of State for Energy Security and Net Zero commit any legal error when assessing the significance of the greenhouse gas (“GHG”) emissions likely to be caused by the operation of a proposed gas-fired electricity generating station with post-combustion carbon capture and storage (“CCS”)? This is not a question that gives rise to any point of law new to this court.

The appellant, Andrew Boswell, appeals against the order of Lieven J made on 20 August 2024, by which she dismissed a claim for judicial review brought by Dr Boswell challenging the decision of the first respondent, the Secretary of State, on 16 February 2024, to grant the application of Net Zero Teesside Power Limited and Net Zero North Sea Storage Limited (“the second respondents”) for a development consent order under section 114 of the Planning Act 2008 for a new gas-fired electricity generating station at Teesside with Carbon Capture Utilization and Storage (“CCUS”).

Before the judge, there were four grounds of challenge, which she identified at [3] of her judgment. She rejected all four of them, for the reasons set out in her judgment given on 14 August 2024: [2024] EWHC 2128 (Admin).

The main issues in the appeal

In this court the appellant did not pursue the fourth ground, which challenged the Secretary of State's conclusion on the need for the project. Instead, he pursues three grounds of appeal, which effectively rehearse the remaining arguments pursued before the judge. Those grounds present us with three main issues:

i) Whether the judge erred in deciding that the Secretary of State did not rely on the guidance issued by the Institute of Environmental Management and Assessment, entitled “Assessing Greenhouse Gas Emissions and Evaluating their Significance” (“the IEMA guidance”), in concluding that GHG emissions from the development would be a significant adverse impact, and so there was no inconsistency between this conclusion and the conclusion that the development supports the transition to net zero: see the judgment at [72]–[77] (ground 1);

ii) Whether the judge erred in deciding at [81] of the judgment, that paragraph 5.2.2 of National Policy Statement EN-1 (2011) encapsulates the assessment of significance of GHG emissions for the purposes of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 572) (“the 2017 Regulations”), as well as the weight to be given to the assessment of significance as part of a planning balance exercise (ground 2); and

iii) Whether the judge erred in finding at [72] of her judgment that the respondent was lawfully entitled to endorse the use of the IEMA guidance while at the same time assessing significance in a different way, and gave adequate reasons in relation thereto (ground 3).

Our approach to those issues

It is a truism to say, but worth repeating in a case such as this, that our task, like that of the court below, is only to establish whether the decision-making under challenge was lawful. Did the Secretary of State err in law as it is alleged she did, or not? That, and that alone, is what we must resolve.

As this court has recently emphasised, and not for the first time, in Frack Free Balcombe Residents' Association v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 495 (see the judgment of Sir Keith Lindblom, Senior President of Tribunals at [8]), and in these proceedings too, we are not concerned in any way with the environmental, economic or social merits of the Government's energy policy, its ambition for a low carbon economy, or, in particular, its policy for attaining “net zero” within the timescale it has set for that endeavour. Nor are we concerned with the planning merits of the proposal for development with which this case is concerned. The “rule of law” as it bears on the legal protection of the environment – sometimes referred to nowadays as the “environmental rule of law” – relies on the independence and impartiality of the judiciary when deciding litigation in which it is at stake. The constitutional separation of functions requires that the courts are never drawn into the debate on the merits of policies adopted by the executive or legislation enacted by Parliament. That is not what we do. Personal opinions about the desirability of gas-fired electricity generation with CCS/CCUS as an element in the Government's strategy for combating climate change, including any views that we might conceivably have as citizens, those of counsel and, indeed, those of the parties themselves, are wholly irrelevant to our duty as judges and to the task before us here.

The legal framework

In R (on the application of Friends of the Earth Ltd.) v Heathrow Airport Ltd. [2020] UKSC 52; [2021] PTSR 190 at [19]–[38] the Supreme Court analysed the structure and main provisions of the Planning Act 2008. That need not be repeated here.

One of the objects of the Planning Act 2008 is that matters of national policy are to be settled through the designation of National Policy Statements (“NPSs”). Thereafter, representations which seek to challenge the merits of such policy may be disregarded by the Examining Authority and the Secretary of State when dealing with an application for a development consent order (sections 87(3), 94(8) and 106(1) of the Planning Act 2008).

NPSs are subject to an appraisal of sustainability (under section 5(3) of the Planning Act 2008) and strategic environmental assessment (under the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No.1633)). They are also subject to publicity and public consultation (under section 7) and to Parliamentary scrutiny (under sections 5(4) and 9). The Secretary of State may designate a NPS only if the House of Commons approves the document or that House has not resolved within 21 days of the NPS being laid before Parliament that it should not be proceeded with (section 5(4)).

Where a NPS has effect in relation to an application for a development consent order, the Secretary of State must decide the application having regard to that NPS (section 104(1) and (2)) and, save in so far as one or more of the exceptions in section 104(4) to (8) applies, in accordance with that NPS (section 104(3)). Section 104(7) applies “… if the Secretary of State is satisfied that the adverse impact of the proposal would outweigh its benefits.”

The relevant NPSs for the purposes of the Secretary of State's decision were EN-1 “Overarching National Policy Statement for Energy” and EN-2 “National Policy Statement for Fossil Fuel Electricity Generating Infrastructure”. They were originally designated in 2011. The Secretary of State carried out a review of those NPSs under section 6 of the Planning Act 2008. She designated updated versions of those NPSs on 17 January 2024. The 2024 versions provide that the 2011 NPSs continue to apply to applications for a development consent order accepted for examination before that date.

Accordingly, both at the time when the Examining Authority submitted its report to the Secretary of State and when she made her decision to grant the order, the 2011 NPSs remained in force for the purposes of the Planning Act 2008, including section 104. Furthermore, the Examining Authority took into account as a material consideration the 2023 drafts of the updated versions of the NPSs, and the Secretary of State took into account as a material consideration the 2024 designated versions of those updates. The parties did not suggest that the issues in this appeal turn on any difference between the 2011 and the 2024 NPSs.

In this case, the Secretary of State considered that NPS EN-1 applied to the whole of the proposal and therefore section 104 of the Planning Act 2008 applied. She decided that the proposed development accorded with the relevant NPSs and that none of the exceptions in section 104(4) to (8) applied. In particular, she decided under section 104(7) that the benefits of the proposed development outweighed the harm that it would cause. In the alternative, the Secretary of State applied section 105 of the Planning Act 2008 on the assumption that section 104 was not applicable. She decided that on either basis the development consent order should be granted.

The principles on the interpretation of policy in a NPS are well-established and were summarised in R (on the application of Scarisbrick) v Secretary of State for Communities and Local Government ...