That project forms part of a wider ‘cluster’ of projects in the north west of the UK (known as HyNet North West), which includes hydrogen production, hydrogen transportation, hydrogen use, carbon capture, carbon transportation and carbon storage. HyNet North West is intended to form the world’s first low carbon cluster of projects and is being promoted as being an important part of the Government’s strategy for transition to Net Zero. The case was designated as a significant planning case.

On the substantive merits, the Court held that:

1. The Secretary of State had adequately assessed the risks of major accidents and disasters, and complied with the consultation requirements under the Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020 (J/37-49).
2. The ‘project’ was the carbon transportation and storage project for which consent had been granted. The Secretary of State had been entitled not to consider the emissions of that project together with the emissions from the hydrogen production plant forming part of the wider HyNet Cluster of projects(J/50-55).
3. There had been no breach of the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001. The Secretary of State’s reasons for disagreeing with the views of Joint Nature Conservation Committee and Natural England (both of whom could not conclude no adverse effect on site integrity) had been clear and the Secretary of State reached a rational judgment arrived at with regard to statutory consultees’ advice (J/56-62).

The Court also held that the claim had not been bought promptly, notwithstanding that it had been brought within the applicable three-month period under CPR 54.5(1)(a).

In this regard, Saini J made clear that:

1. Time for bringing a claim for judicial review runs from the date of the legally operative decision, which in this case had been taken on 17 March 2025. Contrary to the Claimant’s submissions R (Anufrijeva) v SSHD [2004] 1 AC 604 did not change that. Where the notice had been sent to the applicant and the NSTA on 17 March 2025, the fact that it was not then published until 24 April 2025 (and so the Claimant – as an interested member of the public - could not have known about it until this date) did not postpone the date from which time had begun to run (J/66).
2. The court could not disapply the “promptness” requirement under CPR 54.5 on the basis of the principle established in Uniplex (UK) Ltd C-406/08 [2010] 2 CMLR 47 (disapplying the promptitude requirement in the context of EU-derived law). The Retained EU Law (Revocation and Reform) Act 2023 has removed the principle of supremacy of EU law in domestic law and provides that no general principle of EU law is part of domestic law after 2023: s.5(A1) and (A4) of the European Union (Withdrawal) Act 2018 (J/69). 
3. The subject matter of the Claimant’s claim, being as it was major infrastructure, demanded particularly prompt action. The Development involves major infrastructure. Under the Planning Act 2008 challenges to NSIPS must be brought within 6 weeks, as must challenges under the Planning Acts (see CPR 54.5(5)). Whilst, by virtue of the fact that it takes place within the UK’s territorial waters, the proposal did not fall within the scope of the Planning Act 2008 or CPR 54.5(5) those timescales were indicative of the need to act with particular speed where the proposal is to challenge a decision granting consent for a major infrastructure project. Very substantial third-party interests were involved and upon becoming aware, on 29 April, that a decision which it might wish to challenge, had been taken on 17 March, the Claimant should have acted very speedily indeed to bring proceedings. That is not what happened (J/67).

Finally, at J/70 the Judge recognised obiter (and without deciding the point) that there was “substantial force” in the Secretary of State’s submission that, even if the Claim had been arguable, a higher threshold than arguability should have applied in a case such as this where the case concerns an urgent matter of national importance, and where there has been substantial pre-reading, detailed skeletons and oral submissions over half a day from all relevant parties. The Judge noted (in the context of a planning case on the type of facts at issue) that the grant of permission is in itself highly likely to cast a long shadow over a development of national interest, with substantial financing and construction arrangements involving many third parties. In that context, he could see the force of an argument that much more than mere arguability of a claim (such as establishing that the claim is more likely than not to succeed) should be required.

A copy of the judgment is available here.

Merrow Golden appeared for the Claimant (instructed by Leigh Day).

Charles Streeten leading Naomi Hart of Essex Court appeared for the Secretary of State for Energy Security and Net Zero (instructed by the Government Legal Department).