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Home / News and Insights / Blogs / Planning Act 2008 / 1043: Another failed DCO legal challenge, nuclear fusion news and delay

Mustafa Latif-Aramesh
Partner and Parliamentary Agent

Today’s entry reports on yet another legal challenge to a DCO failing, updates relating to a new National Policy Statement for Nuclear Fusion (EN-8) and another DCO delay.

A-12 sauce

The A12 road has its origins as a route in the Antonine Itinerary; anyway, skip a few years, and a legal challenge to the A12 Chelmsford to A120 Widening Scheme DCO has been refused by Sir Peter Lane. The challenge was brought by Dr Boswell, who recently lost his challenges against three other roads’ DCOs. Even though this challenge was dismissed at the first hurdle, we think there are some useful confirmations in the judgment.

The first ground related to the Secretary of State’s consideration – that’s right, you guessed it before I even said it – of greenhouse gas emissions and how they were assessed. Sir Peter Lane doesn’t take any prisoners, noting that the claim is ‘an entirely artificial criticism of the presentation of… environmental information and the notion of significance.’ Sir Peter Lane continues reminding us all that:

‘Judgments about such matters are quintessentially evaluative for the decision-maker… It cannot be rationally suggested that the NPSNN 5.18 test is not an appropriate test of significance in EIA terms. Indeed, the claimant himself identified the paragraph 5.18 test as a test of EIA significance in paragraph 7 of his representations… The contention in the reply that the decision erred in treating the question of whether emissions would have a material impact as determinative of whether they are significant for EIA assessment is negated by the fact that the defendant was entitled to do so: that was an aspect of the evaluative judgment and the NPS did not demand a contrary approach.’

Amen, and it is a pity that the court has been forced to echo this contention on so many occasions, causing an inordinate amount of delay and (taxpayer) cost. Interestingly, Sir Peter Lane also dismissed the argument that ‘the draft NPSNN involves a different approach to the consideration of GHG emissions’, noting that the suggestion ‘has been emphatically rejected by the High Court as unarguable’. Moreover, the Secretary of State’s conclusion that ‘there was nothing in the draft NPSNN which would have led him to come to a different conclusion on the DCO application was a matter of judgment for the [Secretary of State]’.

I won’t cover Ground 3 (which the claimant subsequently accepted was totally without merit) nor 4, but Ground 5 also has a useful confirmation. The claimant had attempted to argue that the Secretary of State’s consideration of carbon did not account for ‘delivery risk’. This too failed: the Secretary of State’s decision was unimpeachable because ‘concluding that delivery risk did not alter his conclusions on GHG emissions were unarguably rational and consistent with (1) the very small emissions occasioned by the A12 [project]; and (2) the high degree of confidence in delivery of the policies in the Transport Decarbonisation Plan.’

Fusion

The government has published a consultation document on EN-8 (we still await EN-7 for new nuclear), the national policy statement for fusion technology. Note that this is not a full draft of EN-8, but instead a pre-draft consultation setting out some of the key proposals that will, in the future, be included in the eventual draft. Here’s a summary of some interesting points:

  • Like the nuclear siting strategy (for fission), this consultation confirms that ‘the government proposes using an open-site developer-led approach. This will put the developer at the forefront of site selection and empower developers to undertake site characterisation based on the criteria and considerations in the NPS and scrutinised by regulators (where applicable).’ That siting criteria looks a lot like the siting criteria considered in EN-6.
  • The government is proposing to amend the Planning Act 2008 to include all nuclear electricity-producing stations in England in the NSIP process (again, like their stated intention in relation to nuclear projects where the 50 MW threshold is proposed to be removed).
  • The consultation document also sets out that there is a proposal to amend the Planning Act 2008 to clarify that the MW thresholds are inclusive of both electrical and thermal output combined for fusion energy facilities.

The government anticipates the draft being consulted on in spring 2025, with a final designation in winter 2025.

Thwarted

Finally, the North Lincolnshire Green Energy Park DCO decision has been delayed again. The written statement confirms the reason for the delay (to 18 July 2024) is related to the hoo-ha surrounding the stymieing of all environmental permits for waste incinerators following the Medworth decision. The delay is there to ‘ensure there is sufficient time for the Department to consider the outcome of the piece of work being carried out by Defra officials to consider the role of waste incineration capacity in the management of residual wastes in England.’

We previously covered the hokey-cokey relating to Medworth, and this project appears to be collateral damage from the fallout.

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