Tue, 30 Jun 2020
Note: this article supplements the latest instalment of the Planning Podcast focused on infrastructure. Hugh Richards takes listeners through the case of ‘Drax’ - a case with a mix of Net Zero, a DCO and a late letter to the Secretary of State and the facts, and discusses the issues and the practical points arising.
R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy  EWHC 1303 (Admin). 22 May 2020. Holgate J.
This case is a High Court challenge by statutory judicial review to the Secretary of State's decision to grant a development consent order for the construction and operation of two gas-fired generating units at an existing coal-fired power station site in Yorkshire. The decision was contrary to the recommendation of her examining Panel. The challenge was unsuccessful largely because the Panel itself had made an error which the Secretary of State declined to follow. The Panel had misinterpreted national policy on the assessment of "need" for the development and the Secretary of State had been entitled to conclude that that need outweighed the substantial adverse environmental impacts of the proposed development.
The Panel recommended that consent be withheld because the power stations would lead to a greater increase in greenhouse gas (GHG) emissions than had been estimated in the applicant’s environmental statement and that they would have significant adverse effects on the environment . The Secretary of State accepted that particular finding. It was on the other side of the planning balance that the Secretary of State disagreed with the panel.
The Panel considered that the energy NPS - EN-1 distinguished between the need for energy NSIPs in general and the need for any particular proposed development. The correct meaning of policy is, of course, a matter of law. The High Court held that reading EN-1 as a whole, it did not require a general assessment of need in quantitative terms in the determination of individual applications for DCOs. EN-1 was not just concerned with qualitative need. Requiring an applicant to demonstrate a quantitative need for gas-fuelled power generation would run counter to the reason for the introduction of the Planning Act 2008 and the energy NPSs. Accordingly, the Secretary of State had been entitled to ignore the Panel's interpretation of EN-1.
Now, as planning professionals, we are familiar with the duties of the Secretary of State to give fuller reasons where a disagreement with a planning inspector arises – see for example the case of Haroda in 2016. But in this case the Court held that as the Panel had misinterpreted EN-1, the Secretary of State was not obliged to say why she was giving no weight to its conclusion on the need for the development.
The Secretary of State went on to weight the panel's finding on the significant adverse impacts of GHG emissions from the development against the benefits of the proposal as she assessed them to be, including its contribution towards meeting policy need. Having correctly weighed those benefits, she found that the impact of GHG emissions should not carry determinative weight in the overall planning balance. In doing so she was entitled to take into account the "substantial weight" assessment she had made in relation to need under EN-1. EN-1 did not prescribe the amount of weight to be given to emissions as a disbenefit, except to say that that factor alone did not justify a refusal of consent. The Secretary of State had decided not to give greater weight to emissions because she said she found no compelling reasons to do so, which was a matter for her planning judgement.
So, the principal ground of challenge was not made out.
A further ground of challenge arose to the Secretary of State’s failure to give reasons not to impose a particular GHG monitoring measure. However the court followed established precedent and held that the duty to give reasons arose only in respect of the "principal important controversial issues" and at no time during the examination process had any party, including the claimant, suggested that the DCO should contain a monitoring measure for GHG emissions.
Lastly a ‘fairness’ ground was rejected. After the close of the examination the promoter had written a letter to the Secretary of State and the letter had not been copied to the other participants in the examination. The letter was read only by officials and it had not influenced the advice given to the Secretary of State. Therefore, the claimant had not suffered any prejudice because it had not lost an opportunity to advance a case which could have affected the determination of the power station's application for a DCO.
So, this case re-emphasises some points of practical importance:
- The importance of interpreting policy correctly.
- That matters of weight in planning judgments are for the decision-taker.
- If something is really important to an objection, make sure it becomes a “principal controversial issue” – give the decision-taker a list of what you regard as being the principal controversial issues.
- In order to succeed with a “fairness” challenge you need to show prejudice, which is almost always fact-specific.
No5 Barristers’ Chambers
23 June 2020