Permission refused on all grounds for Sizewell C JR

Judgment was handed down this morning by Mr Justice Holgate in the High Court in the case of R (Together Against Sizewell C Limited) v Secretary of State for Energy Security and Net Zero (Defendant), NNB Generation Company (SZC) Limited (Interested Party). The judgment concerns a challenge brought by Together Against Sizewell C Limited against the Secretary of State ("SoS")'s decision on 20 July 2022 to grant a development consent order for the Sizewell C new nuclear power station (see our previous blog post here for more details about the project).

Mr Justice Holgate refused permission on all seven grounds advanced by the claimant, additionally finding that grounds 3 – 7 were "totally without merit". An eighth ground was withdrawn by the claimant prior to the hearing, which took place over two days in March 2023. The judgment covers issues such as what is the scope of a "project", cumulative assessment, consideration of alternative solutions under the Conservation of Habitats and Species Regulations 2017 ("Habitats Regulations") and the duty to give reasons. A summary of the judge's findings in respect of each ground is set out below.

Herbert Smith Freehills has acted for EDF Energy on the Sizewell C project since 2010. We advised on the judicial review challenge alongside counsel Hereward Phillpot KC and Hugh Flanagan of Francis Taylor Building. The Herbert Smith Freehills team comprised partners Catherine Howard and Nusrat Zar, of counsel Charlotte Dyer and associates Leon Culot and Ariel Wiebe.

Ground 1: Contrary to reg. 63(1) of the Habitats Regulations the SoS failed to assess the environmental impacts of the “project” (including the necessary permanent potable water supply solution)

There was no basis on which the SoS' evaluative judgment that the permanent potable water supply was not part of the Sizewell C "project" could be said to be irrational or flawed. Requiring sources of utility supplies to be assessed as part of the "project" where that source was not yet known would lead to "sclerosis in the planning system which it is the objective of the legislation and case law to avoid".  

Ground 2: In the alternative to ground 1, contrary to reg. 63(1) the SoS failed to cumulatively assess the environmental impacts of the power station together with the permanent potable water supply solution

The SoS could rationally reach the conclusion that the consideration of cumulative impacts from a subsequent development which is inchoate may be deferred to a later consent stage. Contrary to the claimant's suggestion, the test of 'imperative reasons of overriding public importance' under the Habitats Regulations could be properly applied at that later stage, without the grant of the Sizewell C development consent order skewing the assessment and acting as a "foot in the door".

Ground 3: The SoS failed to supply lawfully adequate reasons for departing from the advice of Natural England that the permanent water supply should be considered to be a fundamental component of the “operation of the project” and its effects at this stage

The judge concluded that this ground "should never have been raised by the claimant", holding that adequate reasons had been given by the SoS for disagreeing with Natural England, particularly given that what the SoS was responding to were essentially bare assertions from Natural England.

Ground 4: Contrary to reg. 64(1) of the Habitats Regulations, the defendant failed to lawfully consider “alternative solutions” to the power station before concluding that there were imperative reasons of overriding public interest justifying the environmental harm it would cause

The judge described this ground as an attempt "in effect, to continue [the claimant's] challenge to the merits of Government policy through the means of judicial review" which he described as being "wholly inappropriate". The judge held that, in light of government policy which promotes new nuclear power in pursuit of security and diversity of supply, there was no basis on which to challenge the Examining Authority and SoS’ approach which excluded alternative technologies as alternative solutions.

Ground 5: The SoS took into account a legally irrelevant consideration (because it was supported by no evidence), namely the contribution the power station might make to reducing greenhouse gas (“GHG”) emissions by 78% from 1990 levels by 2035

The judge held that on the material before the SoS, the SoS was entitled to conclude with a reasonable level of certainty that a permanent potable water supply solution can be found and in particular it could not be said that his judgment on such an evaluative subject looking into the future was irrational. Therefore, the SoS could lawfully take into account the contribution that Sizewell C will likely make to electricity generation in 2035 and reduction in GHGs.

Ground 6: The SoS acted irrationally in concluding that the power station site would be clear of nuclear material by 2140 and/or failed to supply adequate reasons for rejecting the claimant's case on that point

The judge held that the SoS’ conclusions were open to him and adequately reasoned, particularly given the range of mitigating matters on which he could and did rely (including monitoring of sea levels and controls imposed by nuclear site licensing).

Ground 7: The SoS erred in law in concluding that the power station’s operational GHG emissions would not have a significant effect on the UK’s ability to meet its climate change obligations

The judge described this ground as "utterly hopeless", holding that there was ample material to support the conclusions of the Examining Authority and SoS regarding emissions from the project and their contribution to the UK's climate change obligations.