The King (Together Against Sizewell C Ltd.) v. (1) Secretary of State for Energy Security and Net Zero (2) Sizewell C Ltd. [2023] EWCA Civ 1517

The Court of Appeal has dismissed an appeal by Together Against Sizewell C Ltd. (“TASC”) against a decision by Holgate J to refuse permission to apply for judicial review of the Sizewell C (Nuclear Generating Station) Order 2022, which authorises the construction and operation of the new Sizewell C nuclear power station on the Suffolk Coast.

TASC’s application for permission was initially rejected on the papers by Kerr J before being renewed and considered by Holgate J at a ‘rolled-up’ hearing over two days in March 2023.  In a detailed reserved Judgment handed down on 22 June 2023 Holgate J refused permission on all seven of the grounds then pursued.

The Court of Appeal granted permission to appeal on two grounds, both of which concerned the issue of “appropriate assessment” under the Habitats Regulations of the means by which a permanent supply of potable water to the proposed power station will be provided. The appeal was considered at a ‘rolled-up’ hearing before the Court of Appeal on 1 and 2 November 2023.

There were two main issues in the appeal:

1. Was the Secretary of State wrong in law to treat the permanent supply of potable water to the power station as not being part of the same project for the purposes of appropriate assessment?
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 a cumulative assessment of its effects together with the power station itself?

In dismissing the appeal and agreeing with Holgate J’s conclusions on both main issues, the Court of Appeal held as follows:

• The identification of the project for the purposes of appropriate assessment was not a matter of law for the court but one of fact and evaluative judgment for the decision-maker.
• It is a judgment that will always depend on the facts and circumstances of the particular case and it is not possible to state any hard and fast rules governing the exercise of that judgment.  The Court nevertheless provided some helpful general points about approach, including as to the implications of its decision in Ashchurch.
• Judicial review of that exercise of judgment was only available on a conventional Wednesbury basis.
• The Secretary of State’s judgment that the means of providing a permanent supply of water to Sizewell C was not part of the same project was rational and not unlawful, and his reasoning was “legally impeccable”.
• The factors that weighed with the Secretary of State in reaching his judgment were “compelling”, including the specific statutory obligations to which the water undertaker was subject pursuant to the Water Industry Act 1991.  The Secretary of State was “clearly right” to regard the power station and the means of potable water supply as two separate projects.  Had it been a matter for the Court to decide then “we would have held for ourselves that on the facts of this case the project was indeed the power station development alone and did not extend to any proposals for the permanent supply of potable water”.
• The Court considered that the Appellant’s suggested approach to this issue could produce “sclerosis in the planning system” because it implied that, as a general rule, the infrastructure that might later be used by a utility company to supply water, electricity, gas or sewerage to a major development would fall to be considered as part of the development itself.  This would have the potential consequence that decision-making on that development would have to await the utility company’s own choice of its preferred means of supply.
• The environmental effects of the means of water supply would be assessed through the separate water resource management plan process and in consenting any necessary infrastructure in due course.  This reflected the “staged approach” to assessment approved by the Court of Appeal in Larkfleet.
• Having lawfully determined that the permanent water supply was a separate project, the Secretary of State acted lawfully in concluding that it was not necessary to carry out a cumulative assessment of its effects together with those of the power station itself.  There was insufficient detailed information available as to the means of providing the necessary water, where this would be and how the water would be conveyed to the power station.  There was no basis for assuming the later consenting process would not be carried out appropriately and it was lawful to defer assessment of the impact of this separate project.

The decision is of significance not only because of the importance of Sizewell C for meeting the urgent need for new nuclear generating capacity that is identified in national policy, but also because of the wider implications of the Court’s reasoning for the assessment of the effects of providing necessary utilities infrastructure to new development of all types. 

Hereward Phillpot KC and Hugh Flanagan, instructed by Herbert Smith Freehills, appeared on behalf of the second respondent, Sizewell C Limited.