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Court of Appeal Grants Permission in Drax Challenge

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

The Court of Appeal (Lord Justice Lewison) has granted permission to appeal from the High Court’s decision in R (ClientEarth) v SSBEIS [2020] EWHC 1303 (Admin). The case concerns the judicial review of the Secretary of State’s decision to make a development consent order for the construction of two gas-fired units, and related development, at Drax Power Station in North Yorkshire.  

The case raises important issues on both the interpretation of the Overarching National Policy Statement for Energy (EN-1) and the National Policy Statement for Fossil Fuel Electricity Generating Infrastructure (EN-2) as well as the correct application of the section 104(7) balance under the Planning Act 2008.  In particular, the case concerns how the “need” for the development and the development’s greenhouse gas emissions are to be considered under the statutory and policy framework.

The Court of Appeal found there to be a compelling reason for the grant of permission in view of “the wide-ranging application of the NPS and the public interest in climate change”.

Gregory Jones QC and Merrow Golden are acting for ClientEarth (the appellant).
Andrew Tait QC and Ned Westaway are acting for the Secretary of State.
Mark Westmoreland Smith is acting for Drax Power Ltd.