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Home / News and Insights / Blogs / Planning Act 2008 / 887: Drax Court of Appeal win and other news

Today’s entry reports on the judgment on the challenge to the Drax Development consent order in the Court of Appeal plus other news.

Sir Keith Lindblom has given the leading judgment in the Court of Appeal relating to ClientEarth’s challenge to the grant of a DCO for the Drax Repower project back in October 2019. The full judgment can be found here, but here is a summary of the main points.

There were three grounds of challenge, which I paraphrase thus. First, should the Secretary of State have considered how much need for electricity generation had been used up by previous projects? No. Overarching Energy National Policy Statement EN-1 is ‘deliberate and explicit’ in not setting targets for electricity generation overall or for particular technologies that would then get used up by projects.

Secondly, was the weight given to greenhouse gas emissions rational? Yes. There was a slight difference with the High Court decision where it was concluded that the NPSs provided that GHG emissions could not lead to refusal on their own; the Court of Appeal decided that was possible and allowed by the NPSs. However in this case the then Secretary of State Andrea Leadsom was within her rights to conclude that the adverse impacts of emissions did not outweigh the benefits of the project.

There is an interesting point at paragraph 96 – the law on ‘material considerations’ does not apply to the Planning Act 2008 regime, which is ‘self-contained’. It is true that that phrase is not used in the Act, which uses ‘important and relevant’ instead, but this is confirmation that interpretation of material considerations does not carry across to the DCO regime.

The third ground was that the Secretary of State unlawfully tied the balance between benefits and adverse effects to the policies in the NPSs. The judges concluded that was not the case.

While that decision must reflect the law in October 2019, it is interesting how things have moved on. The most recent DCO decision concluded that the project concerned would contribute 0.01% to the third, fourth and fifth carbon budgets and so this would not affect the government’s ability to meet them. Such an exercise was not carried out in respect of the Drax decision, and by my calculations it would contribute about 3.5% of the fifth carbon budget, rising to 6.8% of the proposed sixth budget. The test was also not whether the project would affect the government’s ability to meet the carbon budgets, but whether if it went ahead any scenarios still existed that would allow it to do so.

Other news

The Wylfa nuclear power DCO application was withdrawn on 27 January, the letter of withdrawal can be found here. Essentially despite promising discussions, no party has been willing to replace Hitachi as a backer of the project.

The A47 Blofield to North Burlingham (what is it about DCOs and Bond villains?) and the London Resort projects were both accepted for examination this week, the first of the year.

And finally, the A303 Sparkford to Ilchester project, along the road from Stonehenge, has just been approved despite receiving a ‘minded to refuse’ letter earlier. More details in the next edition of the blog.

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