The Claimant sought to challenge the decision of the Secretary of State (“SoS”) to make the development consent order (“DCO”) authorising the construction, operation, maintenance and decommissioning of the Sizewell C nuclear power station in Suffolk, which will comprise two reactors and have a total capacity of 3,340 MW. The SoS’ decision to make the DCO was made on 20 July 2022, after an examination into the application for development consent had taken place between April and October 2021.

The Judge dismissed the claim in its entirety. After a ‘rolled-up’ hearing on 22 and 23 March 2023, permission to bring judicial review was refused on all seven grounds. The Judge made a further finding that Grounds 3 to 7 were totally without merit.

The judgment is likely to be of wider interest to those involved with the infrastructure planning process in a number of respects, particularly in relation to the scope of the project to be environmentally assessed, the approach of decision-makers to responses from expert bodies, and alternative solutions under the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”). 

Grounds 1 to 3 all concerned the potable water supply needed for the operation of the power station (as opposed to the cooling water required in connection with electricity generation, which is to be obtained directly from the sea). The potable water supply solution was not fixed by the time of the SoS’ decision, being dependent upon decisions of the statutory water undertaker and in particular the outcomes of the Water Resources Management Plan process for Essex and Suffolk for the period 2025 to 2050, which was underway at the time of the decision but had not been concluded. Ground 1 alleged that the SoS failed to assess the environmental impacts of the “project” within the meaning of reg. 63 of the Habitats Regulations, on the basis that the permanent potable water supply had not been included in the scope of the project assessed. Ground 2 alleged that the SoS failed to assess cumulatively the environmental impacts of the power station with those of the permanent potable water supply, contrary to reg. 63. Ground 3 alleged that the SoS failed to supply lawfully adequate reasons for departing from the advice of Natural England that the permanent water supply should be considered to be a fundamental component of the “operation of the project” and its effects at this stage.

In dismissing Grounds 1 to 3, the Judge held that the scope of the project for the purposes of reg. 63 was a matter for the evaluative judgment of the SoS and there was no basis on which that judgment could be said to be irrational or otherwise flawed. The promoter had not ‘sliced up’ the development in order to make it easier to obtain consent for the first part of a larger project. Rather there was uncertainty about what form the long term supply would take, to which the promoter had to react. The Claimant’s approach could lead to “sclerosis in the planning system which it is the objective of the legislation and case law to avoid”. The Judge further held that this was a case where the SoS could rationally reach the conclusion that the consideration of cumulative impacts from a subsequent development which is inchoate may be deferred to a later consent stage. Nor was there any basis on which to suggest that the reasons given for disagreeing with Natural England were legally inadequate. The level of reasoning which the law expects of a decision-maker disagreeing with the views of an expert body may depend upon whether that view is an unreasoned statement or assertion, or a conclusion which is supported by an explanation and/or evidence. It may also depend upon the nature of the subject-matter.

Ground 4 alleged that contrary to reg. 64(1) of the Habitats Regulations the SoS failed lawfully to consider “alternative solutions” to the power station before concluding that there were imperative reasons of overriding public importance for the project. The Judge held that, in light of government policy which makes new nuclear power an essential part of its energy objectives, there was no basis to challenge the SoS’ approach which excluded alternative energy generation technologies (such as wind, solar etc) as alternative solutions. 

Grounds 5, 6 and 7 alleged errors in the SoS’ findings in respect of, respectively, the contribution of the Sizewell C project to reducing greenhouse gas emissions, the likely date during decommissioning by which the site would be clear of nuclear material, and whether the power station’s operational GHG emissions would have a significant effect on the UK’s ability to meet its climate change obligations. The Judge held that on each of these grounds the SoS’ conclusions were open to him on the material available and not otherwise flawed.

The judgment is available here.

Hereward Phillpot KC and Hugh Flanagan acted for the Interested Party, NNB Generation Company (SZC) Limited, instructed by Herbert Smith Freehills LLP.