Application for review of decision to grant power station permission refused

3rd July 2020

In the case R (Clientearth) v Secretary of State for Business, Energy and Industrial Strategy, the claimant applied for judicial review of the Secretary's decision to uphold the development consent order for Drax Power Station.

There was an application for permission to build and operate two gas-fired generating units (Drax Power Station), as identified in the Overarching National Policy Statement for Energy (EN-1). The development would be a nationally significant infrastructure project (NSIP), so a panel was appointed as an examining authority.

After the panel completed its examination, the developers submitted a letter relating to the UK's net-zero emissions target. The panel recommended that consent should be withheld: the developers' environmental statement indicated too low a baseline for the assessment of future emissions, and this would lead to a greater increase in greenhouse gas (GHG) emissions than estimated.

The panel said EN-1 distinguished between the need for energy NSIPs generally and the need for any particular proposed development. The Secretary did not dispute that the development would have impacts from GHG emissions, but the national need outweighed those impacts.

ClientEarth argued that the impacts did not outweigh the benefits when assessed considering either EN-1 or the balancing of benefits stipulated under the Planning Act 2008. It argued that the Secretary had misinterpreted EN-1 in her assessment of 'need', and claimed she had unfairly taken account of the developer's late submission.

The judge considered each claimant's grounds for review, and ruled that in assessing the need for the project, the panel wrongly benchmarked against energy and emissions projections; this did not form the basis of EN-1 policy. EN-1 stated there was a qualitative need for new development (such as the Drax Power Station) and substantial weight should be given to the contribution such a project made to that need. Therefore, the Secretary was entitled to dismiss the panel's interpretation.

On the matter of emissions, the judge ruled the Secretary had accepted the panel's findings that the project would have environmental impacts, but disagreed with the panel's evaluation of the project's benefits. She also considered the project's contribution to meeting policy need and correctly weighed the benefits, finding the impact of GHG emissions did not carry determinative weight overall.

The judge considered the Secretary's obligation to weigh the development's adverse impacts against its benefits. EN-1 does not say emissions are not to be considered in the process, or prescribe how much weight to give to emissions in a decision. The Secretary had found no compelling reason to give greater weight to the GHG emissions; the judge agreed this was a matter for her judgment.

The judge also considered the Secretary's decision to give regard to the developer's late submission, finding that it was a letter to officials and had not been provided to the Secretary herself. They ruled that the advice officials provided was not influenced by the letter, and there was no reference to it in her decision. Therefore, the claimant's application for judicial review was refused.

Picture credit: Shutterstock


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