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Court of Appeal Dismisses Drax Challenge

Andrew Tait QC
Gregory Jones QC
Mark Westmoreland Smith
Ned Westaway
Merrow Golden

The Court of Appeal has handed down judgment in R (ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWCA Civ 43 – judgment available here.  

The grounds of challenge concerned the interpretation of National Policy Statements for Energy EN-1 and EN-2 and the application of s.104(7) of the Planning Act 2008.  The Court of Appeal held that in making the Drax Power (Generating Stations) Order 2019 consenting the conversion of two coal-fired units to gas-fired generating units, the Secretary of State’s decision was lawful.  In summary, the Court of Appeal found:

(1)    On need (ground 1): the weight to be given to need in a particular case under EN-1 is not “immutably fixed” and must be proportionate to a project’s actual contribution to satisfying the need for the relevant type of infrastructure.  There is no single, prescribed way of performing that task; accordingly, there may be circumstances in which a form of “quantitative assessment” is appropriate (paras.66-68).  In the present case, the Secretary of State was not required to carry out a quantitative assessment and was entitled to give “substantial weight” to the need case.  She made it clear that her mind was open to the possibility of reducing the weight given to the development’s contribution to satisfying the relevant need when applying EN-1 (para.72).  

(2)    On greenhouse gas (GHG) emissions (ground 2): EN-1 sets out that CO2 emissions are not, of themselves, an automatic and insuperable obstacle to consent being given for any of the energy infrastructure covered by the policy, but EN-1 does not prevent greenhouse gas emissions from being taken into account as a consideration attracting weight in a particular case (how much weight being a matter for the decision-maker to resolve).  It is possible that, in a particular case, the weight given to the consideration of GHGs could be significant, or even decisive, whether or not there was any other identified “adverse impact” (para.87).  In the present case, the Secretary of State properly interpreted the energy NPSs by treating GHG emissions as a “significant adverse impact” (para.92).

(3)    On s.104(7) (ground 3): the provision involves a straightforward balance, setting adverse impacts against benefits, but allows the decision-maker to have regard to the policy in the energy NPSs and give such weight to the proposal’s compliance with policy as they think right in the circumstances.  The Secretary of State did not fetter her discretion in applying the balance (paras.102-109). 

Gregory Jones QC and Merrow Golden appeared for ClientEarth
Andrew Tait QC and Ned Westaway appeared for the Secretary of State
Mark Westmoreland Smith appeared for Drax Power Limited