The King (on the application of Together Against Sizewell C Ltd) v Secretary of State for Energy Security and Net Zero
| Jurisdiction | England & Wales |
| Judge | Sir Keith Lindblom,Lady Justice Andrews,Lord Justice Lewis |
| Judgment Date | 20 December 2023 |
| Neutral Citation | [2023] EWCA Civ 1517 |
| Year | 2023 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-001257 |
[2023] EWCA Civ 1517
Sir Keith Lindblom
(Senior President of Tribunals)
Lady Justice Andrews
and
Lord Justice Lewis
Case No: CA-2023-001257
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Mr Justice Holgate
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe K.C., Ashley Bowes and Ruchi Parekh (instructed by Leigh Day Solicitors) for the Appellant
James Strachan K.C. and Rose Grogan (instructed by the Government Legal Department) for the First Respondent
Hereward Phillpot K.C. and Hugh Flanagan (instructed by Herbert Smith Freehills) for the Second Respondent
Hearing dates: 1 and 2 November 2023
Approved Judgment
This judgment was handed down remotely at 11.45am on 20 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Sir Keith Lindblom (Senior President of Tribunals), Lady Justice Andrews and
Introduction
The question at the heart of this appeal is whether the Secretary of State for Business, Energy and Industrial Strategy erred in law by failing to carry out an “appropriate assessment” of the effects on European sites of the permanent supply of potable water to a proposed nuclear power station, either as part of the same project or cumulatively as a separate but connected project, under regulation 63 of the Conservation of Habitats and Species Regulations 2017 (S.I. 2017 No.1012) (“the Habitats Regulations”).
The appeal is against the order of Holgate J. dated 22 June 2023 refusing an application by the appellant, Together Against Sizewell C Limited (“TASC”), for permission to apply for judicial review of the Sizewell C (Nuclear Generating Station) Order 2022 (“the Order”) for the construction, operation, maintenance and decommissioning of a third nuclear power station at Sizewell on the Suffolk coast, known as “Sizewell C”. TASC is a special purpose company, created by members of the local community to oppose the development of the power station.
The Order was made by the Secretary of State for Business, Energy and Industrial Strategy under section 114 of the Planning Act 2008 (“the 2008 Act”) on 20 July 2022. The relevant statutory functions have since been transferred to the Secretary of State for Energy Security and Net Zero, who has therefore been the defendant in these proceedings and is now the first respondent in the appeal. We shall refer to both ministers simply as “the Secretary of State”. The second respondent, Sizewell C Limited (“Sizewell C Ltd.”), formerly NNB Generation Company (SZC) Limited, is the intending developer.
TASC issued the claim for judicial review of the Order on 30 August 2022. The matter first came before Kerr J. on the papers. He concluded that none of the grounds was arguable with a real prospect of success, and refused permission to proceed on 18 October 2022. TASC renewed its application, which became the subject of a “rolled-up” oral hearing before Holgate J. on 22 and 23 March 2023. On 22 June 2023, having reached the same conclusions as Kerr J., for reasons set out in a detailed reserved judgment, Holgate J. made an order refusing permission to proceed with the claim for judicial review on all seven of the grounds that were then pursued.
TASC sought permission to appeal against the order of Holgate J. on five of those grounds. By an order dated 8 September 2023, Coulson L.J. granted permission on two of them, which correspond with grounds 1 and 2 of the claim for judicial review. Both grounds concern the “appropriate assessment” of the means by which a permanent supply of potable water to the proposed power station will be provided. As the question of permission was inextricably linked to the substantive merits, Coulson L.J. directed that the proceedings in this court would be a “rolled-up” hearing, which would in effect consider whether the judge was wrong to refuse permission to apply for judicial review and, if so, immediately consider detailed submissions on the judicial review claim itself – the claim being retained in the Court of Appeal rather than remitted to the High Court for hearing. At the hearing of the appeal, we allowed all parties to make their full detailed submissions on both permission to apply for judicial review and the substantive claim.
Both the Secretary of State and Sizewell C Ltd. contend that Holgate J. was right to hold that neither of the grounds of appeal is properly arguable. They have also filed respondent's notices under CPR r.52.13(2)(b), inviting the court to uphold the order of Holgate J. for additional reasons.
The main issues in the appeal
The appeal raises two main issues:
(1) Was the Secretary of State wrong in law to treat the permanent supply of potable water, which was necessary for the operation of the power station, as not being part of the same project for the purposes of carrying out an appropriate assessment under the Habitats Regulations (ground 1)?
(2) If the Secretary of State was right to regard the permanent water supply as a separate project, did he err in failing to carry out, under the Habitats Regulations, a cumulative assessment of its effects together with those of the power station itself (ground 2)?
For the reasons set out in this judgment, we agree with Holgate J.'s conclusions on both issues.
The Habitats Regulations
Regulation 63(1) of the Habitats Regulations provides:
“(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which –
(a) is likely to have a significant effect on a European site … (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site,
must make an appropriate assessment of the implications of the plan or project for that site in view of that site's conservation objectives.”
Regulation 63(5) states:
“(5) In the light of the conclusions of the assessment, and subject to regulation 64, the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site … .”
Regulation 64(1) provides:
“(1) If the competent authority is satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest [“IROPI”] … it may agree to the plan or project notwithstanding a negative assessment of the implications for the European site … .”
The “competent authority” in this case is the Secretary of State. It is common ground that a “national policy statement” designated under the 2008 Act is a “plan”, and that a “nationally significant infrastructure project” for which development consent is applied for, also under the 2008 Act, is a “project” for the purposes of regulation 63(1) of the Habitats Regulations. What is in dispute in the present case is the ambit of the “project” that had to be assessed under those Regulations. There is no definition of the term “project” in the Habitats Regulations.
It is also common ground that the Sizewell C development is “likely to have a significant effect” on European sites, and therefore that an “appropriate assessment” was required to be carried out under regulation 63(1). An adverse effect on the integrity of two sites – the Minsmere-Walberswick SPA and the Minsmere-Walberswick Ramsar Site – could not be ruled out, in view of the possible impacts on the habitat of the Marsh Harrier ( Circus aeruginosus), a species of marshland bird, by noise and visual disturbance from the construction of the proposed development.
Section 103 of the 2008 Act establishes the role of the Secretary of State to decide an application for an order granting development consent for a “nationally significant infrastructure project”. The proposed Sizewell C development is a nationally significant infrastructure project for these purposes.
The relevant statutory framework for obtaining development consent for nationally significant infrastructure projects was described by Lord Hodge and Lord Sales in R. (on the application of Friends of the Earth Ltd.) v Secretary of State for Transport [2020] UKSC 52, [2021] PTSR 190, at paragraphs 19 to 38. It includes those provisions which govern the designation of a national policy statement under section 5 of the 2008 Act, following a process of consultation and an appraisal of sustainability and strategic environmental assessment (“SEA”) under the Environmental Assessment of Plans and Programmes Regulations 2004 (SI/2004/1633).
Under section 104, the Secretary of State must have regard to any relevant national policy statement designated under section 5(1) (section 104(2)), and must decide the application in accordance with it, subject to specified exceptions (section 104(3)). Under section 106(1)(b), he may disregard representations relating to the merits of policy set out in a national policy statement.
There are two relevant national policy statements in this case: EN-1, which is the Overarching National Policy Statement for Energy (“EN-1”), and EN-6, which is the National Policy Statement for Nuclear Power Generation (“EN-6”). Both were “designated” in July 2011. EN-1 sets out the approach to deciding applications for development consent (in paragraphs 3.1.1 to 3.1.4). Paragraph 3.5.1 of EN-1 acknowledges that there is “an urgent need for new electricity generation plant, including new nuclear power” to enable the United Kingdom to meet its energy and climate change objectives....
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