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Permission Granted for Judicial Review by ClientEarth of the Drax Power (Generating Stations) Order 2019

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

Mrs Justice Lang DBE has granted permission to ClientEarth for judicial review proceedings against the Secretary of State for Business, Energy & Infrastructure Strategy’s decision on 4 October 2019 to make the Drax Power (Generating Stations) Order 2019. 

The Drax Power (Generating Stations) Order 2019 granted development consent for the construction and operation of two gas-fired generating units at the site of the existing Drax Power Station near Selby in North Yorkshire.  In making the order, the Secretary of State did not accept the examining authority’s recommendation to refuse consent.

ClientEarth challenges the Secretary of State’s decision on a number of grounds, including that she:

  1. misinterpreted the National Policy Statement EN-1 on the assessment of the “need” for the Development.
  2. failed to give adequate reasons for her assessment of the “need” for the Development.
  3. misinterpreted NPS EN-1 on the assessment of GHG emissions.
  4. misinterpreted and misapplied section 104(7) of the Planning Act 2008.
  5. failed to assess the carbon-capture readiness of the Development correctly in accordance with EN-1.
  6. failed to comply with the requirements of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017.
  7. did not consider the Net Zero target in a procedurally fair manner and, or in the alternative, failed to give adequate reasons for her consideration of the Net Zero target.
  8. failed to fully consider the Net Zero target, including whether to impose a time-limiting condition on the Development.

Permission has been granted on all grounds and Holgate J has designated the claim as significant in accordance with paragraph 3 of Practice Direction 54E.

Gregory Jones QC and Merrow Golden are acting for ClientEarth.

Andrew Tait QC and Ned Westaway are acting for the Secretary of State.

Mark Westmoreland Smith is acting for the Interested Party, Drax Power Limited.