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Mustafa Latif-Aramesh
Partner & Parliamentary Agent

Today’s blog looks at the failed challenge against Sizewell C, as well as what the Welsh are up to.

New, clear court decision on Sizewell C Nuclear Power Station

The legal challenge to the Sizewell C Development Consent Order by Together Against Sizewell C has been rejected by the High Court – two grounds were unarguable and the other five were ‘totally without merit’. The judgment can be found here.

Three of the seven grounds related to the Habitats Regulations; and two (related) grounds related to the definition of the ‘project’ for environmental assessment purposes. The first ground related to whether the water supply – which was not considered by the SoS to be outside of the ‘project’ as it was too inchoate – formed part of the Sizewell C ‘project’ for Habitats Regulations purposes. Importantly, Natural England considered that it did form part of the project (cf. Ground 3).

For context, in the decision letter, the Secretary of State noted that the water main from Barsham to Saxmundham did not form part of SZC’s application for development consent (DL 4.59). But the promoter had been able to provide information on the environmental impact of that pipeline and concluded that this would not give rise to any new or different significant cumulative impacts. However, there was no concrete certainty about the precise route or form that the water supply would take.

Guess who? That’s right, Mr. Justice Holgate rejected the argument that the water supply should have been considered part of the Sizewell C project. There is no requirement to ‘assess a hypothetical scheme’ (a useful reminder for proposals put forward at various stages). The good judge makes it clear this is not a case of salami slicing, noting:

‘Plainly, this is not a case where the promoter of a project has sliced up the development in order to make it easier to obtain consent for the first part of a larger project. Sizewell C was initially promoted on the basis that NWL would meet its obligations under the 1991 Act by providing a permanent water supply… Accordingly, the provision of that infrastructure by NWL was not included in SZC’s application for development consent. The present uncertainty about what form the long term supply will take only emerged subsequently. In the circumstances, it is inappropriate for the claimant to say that SZC has caused uncertainty by ‘keeping its options open’. SZC has had to react to the changing circumstances…’

The analogy to the ‘bridge to nowhere’ (ie, the case in which a planning authority failed to consider an adjoining development in connection with a bridge which was strictly, necessarily and functionally linked to the aforementioned development) was rejected:

‘The defendant did not rely upon the mere ‘difficulty’ of carrying out an assessment of the water supply solution or the mere lack of detail on any option. Rather, WRMP24 had yet to be published in draft. NWL’s solution to the water supply issue for Suffolk was unknown and would remain so until that process was completed. There was no option to assess… The claimant alleges that there is functional interdependence between the Sizewell C scheme and the provision of a permanent water supply. This argument relies upon the assertion that ‘the need for the permanent potable water supply arose from the power station development.’… The claimant has not identified any evidence to support its assertion. Rather, NWL stated that they would need to make additional water supplies available to meet the forecast demand and not just the demand from Sizewell C.’

For related reasons, the grounds relating to the Secretary of State (once again) disagreeing with Natural England’s advice on this point. Ground 4 related to whether the ‘alternative solutions’ test under the Habitats Regulations (ie, there are no alternative solutions). The argument was essentially that the policy goal of providing nuclear power is ‘artificially limiting’ in the context of considering alternative solutions, such that it ‘cannot logically be characterised as “central”‘. The claimant says that, by contrast, the provision of comparatively clean energy does qualify as a central policy objective because that goes to the heart of what is sought to be achieved. Mr. Justice Holgate’s response can be summarised as ‘nope’, he holds with his characteristic barb as follows:

‘The claimant’s argument depends upon an illegitimate attempt to rewrite the Government’s policy aims by pretending that the central policy objective is at a higher level of abstraction, namely to produce clean energy, without any regard to diversity of energy sources and security of supply. But it is not the role of a claimant, or of the court, to rewrite Government policy, or to airbrush objectives of that policy that are plainly of ‘central,’ or ‘core’ or ‘essential’ importance… The absurdity of the claimant’s argument was well-demonstrated by Mr. Strachan KC and by Mr. Phillpot KC for the defendant and SZC respectively. The implication of ground 4 would be that a decision-maker dealing with a proposal for a solar farm or wind turbine array, obliged to comply with reg.64(1), would have to consider as alternative solutions nuclear power and, as the case may be, wind power or solar power options. But in my judgement, there is nothing artificial or unlawfully limiting about a Government policy that identifies as one of its core objectives the need to provide a mix of new electricity generation technologies, comprising solar, wind, and nuclear power.’

Ground 7 was ‘utterly hopeless’, and confirms that ‘the Secretary of State was not required himself to delve into the ES or the Life Cycle Assessment in the way the claimant suggests. The summary provided in the Panel’s Report and in the draft decision letter, both of which were provided to the defendant for him to consider, was, as a matter of law, perfectly adequate.’ This seems like a sensible judgment, and caution against heeding the excessively precautionary approach of counting everything under the Sun as part of an infrastructure project.

Cymru machinations

The Welsh Government has introduced the Infrastructure (Wales) Bill into the Senedd. What does it do? Well, it reforms how infrastructure is consented in Wales by establishing a unified process, known as an Infrastructure Consent (IC), for specific types of major infrastructure called Significant Infrastructure Projects (SIPs). These include energy, transport, waste, water and gas projects on land and in the sea around Wales.

Where IC is required for development, various other consents and authorisations that would otherwise be needed, (eg planning permission) aren’t now necessary because they’re replaced by IC – almost like some kind of one stop of shop – maybe we in England should try it? The consent will be in the form of a Infrastructure Consent Order (ICO, not to be confused with something relating to the Information Commissioner nor the pizza place on Goodge Street).

There are some interesting differences in the Bill vs. the Planning Act, here are a few that immediately jumped out to me:

  • (Construction) Highways SIPs are defined as ‘highway[s] (when constructed) will be a continuous length of more than one kilometre’ (vs. 12.5/15 hectares for highways NSIPs under the Planning Act 2008);
  • airports SIPs are triggered where ‘air passenger transport services for at least one million passengers per year’ (vs. 10 million for aviation NSIPs under the Planning Act 2008); and
  • for onshore wind farms an ICO will be required for the construction of the generating station with an installed generating capacity of over 50MW and will be optional for the construction of those with an installed capacity of between 10MW and 50MW and the alteration or extension of a generating station with an increase in generating capacity of at least 10MW (vs. don’t ask about onshore wind in England).

The content of what an ICO application should contain is proposed to be set out in regulations. We’ll be providing more updates on this Bill as it goes through the Senedd.

To hear the latest updates from our experts, subscribe to our Planning Act 2008 Blog.

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