The King on the application of Together Against Sizewell C Ltd v Secretary of State for Energy Security and Net Zero

JurisdictionEngland & Wales
JudgeMr Justice Holgate
Judgment Date22 June 2023
Neutral Citation[2023] EWHC 1526 (Admin)
Docket NumberCase No: CO/3147/2022
CourtKing's Bench Division (Administrative Court)
The King on the application of Together Against Sizewell C Limited
Secretary of State for Energy Security and Net Zero


NNB Generation Company (SZC) Limited
Interested Party

[2023] EWHC 1526 (Admin)


THE HON. Mr. Justice Holgate

Case No: CO/3147/2022




Royal Courts of Justice

Strand, London, WC2A 2LL

David Wolfe KC, Ashley Bowes and Ruchi Parekh (instructed by Leigh Day Solicitors) for the Claimant.

James Strachan KC and Rose Grogan (instructed by Government Legal Department) for the Defendant.

Hereward Phillpot KC and Hugh Flanagan (instructed by Herbert Smith Freehills) for the Interested Party.

Hearing dates: 22 and 23 March 2023


Mr Justice Holgate



The claimant seeks to challenge by judicial review under s.118(1) of the Planning Act 2008 (“the 2008 Act”) the decision dated 20 July 2022 made under s.114 of that Act to make the Sizewell C (Nuclear Generating Station) Order 2022 (SI 2022 No. 853) (“the Order”) under s.114 of that Act. That decision was made by, and the proceedings were brought against, the Secretary of State for Business, Energy and Industrial Strategy. However, with effect from 3 May 2023 the relevant functions have been transferred to the Secretary of State for Energy Security and Net Zero and he has therefore been substituted as the defendant.


The Order grants development consent for the construction, operation, maintenance and decommissioning of a nuclear power station comprising two UK European Pressurised Reactors, each with a net electrical output of 1,670 MW, and a total capacity of 3,340 MW.


The claimant, Together Against Sizewell C Limited (“TASC”), is a private company. It was set up on 8 July 2022 by members of a local community group as a special purpose vehicle for the bringing of this claim and to receive public donations to that end. TASC was established in 2013 to oppose the project. It has had about 280 supporters. The group responded to pre-application consultations and participated in the statutory Examination of the draft order. It made written representations on a range of subjects and oral representations at “issue-specific hearings” (“ISHs”) held during the Examination.


The Order granted development consent to the interested party, NNB Generation Company (SZC) Limited (“SZC”).


The application for consent was made on 27 May 2020. The defendant appointed a panel of five inspectors (“the Panel”) to conduct the Examination of the application under Chapter 4 of Part 6 of the 2008 Act. The Examination took place between April and October 2021.


At the time of the Examination, SZC was unable to identify a permanent supply of potable water for the project, because this was to be decided as part of the preparation and publication by Northumbrian Water Limited (“NWL”) of a Water Resources Management Plan pursuant to s.37A of the Water Industry Act 1991 (“the 1991 Act”) for Essex and Suffolk over the period 2025 to 2050 (referred to as WRMP24).


SZC produced a Water Supply Strategy Report in September 2021 which identified the amounts of potable water required during the construction, commissioning and operational phases of Sizewell C. When the station is operating the peak demand will be up to 2,800 m 3/day. This is an entirely separate issue from the cooling water needed in connection with electricity generation, which is obtained directly from the sea.


The Panel's Report (“PR”) was submitted to the defendant on 25 February 2022. In its assessment of the benefits of the project as part of the overall planning balance the Panel relied upon the contribution of the power station to low-carbon energy production. It would meet the aim of Government policy to achieve delivery of major energy infrastructure including new nuclear electricity generation. They considered that “there is clearly an urgent need for development of the type proposed” and gave “very substantial weight” to the contribution that the scheme would make to meeting that need (PR 7.5.4).


Because the project is likely to have a significant effect on “European sites”, an “appropriate assessment” was required to be carried out under reg.63(1) of the Conservation of Habitats and Species Regulations 2017 (SI 2017 No. 1012) (“the Habitats Regulations”). The Panel concluded that an adverse effect on the integrity of the marsh harrier feature of the Minsmere-Walberswick SPA resulting from noise and visual disturbance during the construction phase could not be excluded (PR 6.4.598). Under reg.64 the Panel advised that there were no “alternative solutions” to the proposed development (PR 6.6.12) and the defendant could conclude that the project must be carried out for “imperative reasons of overriding public interest” (“the IROPI test”). The public interest reasons included the continuing growth in the demand for electricity, the retirement of existing generation capacity, the shortfall in generation of 95GW by 2035, the scale of the need for nuclear new build, the UK's commitment to the net zero target for 2050, the continuity and reliability of supply delivered by nuclear energy as part of a diverse energy mix and the urgent need for new nuclear power stations (PR 6.7.4 and 6.7.9). The Panel also identified some additional areas where the information before them was insufficient for the purposes of the Habitats Regulations, but those matters do not give rise to any legal challenge.


However, there remained the outstanding issue about a permanent supply of potable water. The power station could not be licensed by the Office for Nuclear Regulation (“ONR”) under the Nuclear Installation Act 1965 (“the 1965 Act”) and could not be operated without such a supply. The Panel said that because an assured supply of potable water had not been identified, the cumulative environmental effects of the proposed development and that supply could not be assessed (PR 7.5.7) They stated that they could not recommend approval of the application without additional information and assurance on the provision of a permanent water supply. They regarded this “as an important matter of such magnitude that it should not be left unresolved to a future date” (PR 7.5.8). Subject to the permanent water supply issue, the Panel considered that the benefits of the proposal strongly outweighed the adverse impacts. But in view of that unresolved issue as at the close of the Examination, the Panel considered that the case for the grant of development consent had not yet been made out (PR 7.5.9 and 10.3.1)


On 18 March 2022 the defendant requested further information from SZC, the Environment Agency (“EA”), Natural England (“NE”) and the ONR. The defendant referred to a letter from NWL's Solicitors of 23 February 2022 advising that the company was unable to meet the project's long-term demand for water supply from existing resources and that a number of demand management and supply side options were being appraised. The defendant asked SZC to explain the progress being made to secure a permanent solution so that he could reach a reasoned conclusion on the cumulative environmental effects of different permanent water supply solutions (see DL 4.29).


SZC responded to that request on 8 April 2022. In summary, they relied firstly upon the duty of NWL under the 1991 Act to identify through WRMP24 new water resources to meet the demand forecast for its region, including Sizewell C. NWL would carry out an integrated environmental assessment of the Plan, including strategic environmental assessment (“SEA”) under The Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No.1633) and a Habitats Regulations Assessment (“ HRA”). These assessments would be completed before Sizewell could receive the new supply (DL 4.32). SZC submitted that the long-term planning of water supply was subject to the separate requirements of the 1991 Act and could not yet be identified for the power station (and other developments). Indeed, it could change again during the lifetime of the power station as the water undertaker manages its resources in response to inter alia changing demand. In accordance with national policy, the decision under the 2008 Act should be taken on the assumption that other statutory regimes will be properly applied (DL 4.33). SZC submitted that there was insufficient information on the permanent solutions that might come forward for any meaningful assessment to be made at that stage.


Secondly, SZC said that in the unlikely event of NWL being unable to provide a permanent supply for the power station, SZC could develop a permanent desalination plant. SZC considered that such a plant would be unlikely to generate any new or materially different significant environmental effects (DL 4.30 and 4.66).


On 25 April 2022 the defendant invited comments from interested parties on the responses he had received. TASC replied on 23 May 2022. They raised objections to a permanent desalination plant but offered no comments on the WRMP route. TASC maintained their position that the lack of a guaranteed water supply meant that not all significant environmental effects were being assessed at the development consent stage.


The defendant's decision letter was issued on 20 July 2022. The briefing to the Secretary of State for his consideration of SZC's application included the Panel's Report of some 1500 pages, the final HRA for Sizewell C and the draft decision letter, which itself ran to nearly 190 pages.


The defendant addressed the potable water supply issue at some length in DL 4.43 to 4.69 (reproduced in the Annex to this judgment). He was satisfied with the tankering arrangements and the temporary desalination plant proposed for the construction period and the assessment of their impacts (DL 4.43)....

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