Sizewell C JR appeal dismissed

On Wednesday 20 December 2023, Sir Keith Lindblom, Lady Justice Andrews and Lord Justice Lewis dismissed an appeal brought by Together Against Sizewell C Limited (TASC). The appeal was against Mr Justice Holgate's order of 22 June 2023 (see our blog entry here), in which he refused TASC's application for permission to apply for judicial review of the Secretary of State's grant of a development consent order in 2022 for the Sizewell C new nuclear power station.

Of the seven grounds that were dismissed by Mr Justice Holgate in the High Court, TASC had sought permission to appeal on five of them. In September 2023, Lord Justice Coulson granted permission to appeal on two of the grounds:

• Ground 1: Was the Secretary of State wrong in law to treat the permanent supply of potable water, which was necessary for the operation of the power station, as not being part of the same project for the purposes of carrying out an appropriate assessment under the Habitats Regulations?
• Ground 2: If the Secretary of State was right to regard the permanent water supply as a separate project, did he err in failing to carry out, under the Habitats Regulations, a cumulative assessment of its effects together with those of the power station itself?

A 1.5-day hearing was held in the Court of Appeal in November 2023. In dismissing both grounds on appeal, the Court held that the Secretary of State was entitled to regard the provision of a permanent water supply as a different and separate project from the power station. They further held that it was rational for the Secretary of State to defer appropriate assessment of the impact of the permanent water supply to a later stage. This was because the information necessary for a proper assessment was not available at the time of his decision on the development consent application for the power station.

Herbert Smith Freehills has advised Sizewell C Limited, the interested party in the claim, on the Sizewell C project since 2010, having also worked with EDF Energy to secure consent for Sizewell C’s sister project, Hinkley Point C, in 2013. Sizewell C will supply electricity to six million homes and avoid around nine million tonnes of carbon emissions each year. Further details about the project can be found here.

The Herbert Smith Freehills team who advised on the judicial review appeal comprised partner Catherine Howard, of counsel Charlotte Dyer and associate Leon Culot, alongside counsel Hereward Phillpot KC and Hugh Flanagan of Francis Taylor Building.

Charlotte Dyer stated "We are delighted that the Court of Appeal has robustly dismissed the Sizewell C judicial review appeal. We look forward to working with our client, Sizewell C Limited, to successfully deliver the project and help the UK meet our net zero target."

For more information please contact: