Appeal judges refuse judicial review of Sizewell C nuclear plant approval
The Court of Appeal has rejected a campaign group’s judicial review challenge of the Government’s approval of the Sizewell C nuclear power plant in Suffolk.
The power plant is set to be built by French energy firm EDF at a cost of £20bn. At issue were plans to power the water desalination plant at Sizewell C with electricity from the existing Sizewell B nuclear plant. This temporary desalination facility would provide the Sizewell C project with the water it needs until a new water main provides a permanent supply in the early 2030s.
Campaign group, ‘Together Against Sizewell C’ (TASC) sought to argue that the then Business Secretary Kwasi Kwarteng had erred in law by failing to carry out an "appropriate assessment" of the effects on European sites of the permanent supply of potable water to the proposed nuclear power station. This was either as part of the same project or cumulatively as a separate but connected project, under the Habitats Regulations.
In June 2023, following a rolled-up hearing, High Court judge Mr Justice Holgate refused to grant TASC permission to apply for judicial review.
Sir Keith Lindblom, Senior President of Tribunals, said the appeal in Together Against Sizewell C Ltd, R (On the Application Of) v Secretary of State for Energy Security and Net Zero & Anor [2023] EWCA Civ 1517 raised two issues:
(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 1)?
(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 (ground 2)?
The Court of Appeal allowed all parties to make full detailed submissions on both permission to apply for judicial review and the substantive claim.
Sir Keith said the Court of Appeal did not consider that the judge erred in refusing to grant permission to apply for judicial review, on either ground.
“He correctly concluded that the Secretary of State was entitled in this case to regard the project as the power station, and that the provision of a permanent water supply was not part of that project but formed a different and separate project,” Sir Keith said.
“He was right to conclude that it was rational for the Secretary of State to defer appropriate assessment of the impact of the permanent water supply under regulation 63 of the Habitats Regulations to a later stage, because the information necessary for a proper assessment was not available at the time of his decision on the application for development consent for the power station.”
Lady Justice Andrews and Lord Justice Lewis agreed. The appeal was therefore dismissed.
A spokesperson from Sizewell C said: “After two previous High Court dismissals on this issue, we welcome today’s judgment and now look forward to the next steps for this project.
“Sizewell C will play a key role in Britain’s clean energy future, and this judgment comes at an exciting phase in the project’s development: following excellent progress of pre-commencement work this year, we’re now looking forward to beginning the construction phase in 2024.
“Once built, Sizewell C will meet 7% of the UK’s energy needs for at least sixty years, strengthening Britain’s energy security, lowering bills, and creating thousands of jobs locally and across Britain.”
Together Against Sizewell C has been approached for comment. However, the group – along with Suffolk Coastal Friends of the Earth and Stop Sizewell C – told the BBC: "We are dismayed by this decision and struggle to understand how the potable water supply that £30bn and Sizewell C is totally reliant on for its 60 years of operation can be considered lawfully, or indeed rationally, as a separate project."
It added: "Our fight for the soul of Suffolk will continue and we are in discussions with our legal team to consider our plans moving forward."
