West Berkshire Council has defeated a judicial review challenge brought by developers in relation to the designation of a 'detailed emergency planning zone' around an atomic weapons establishment.
The claimants argued that the council had not properly overseen the regulatory designation process for the AWE Burghfield Detailed Emergency Planning Zone.
The background to the case of Crest Nicholson Operations Ltd & Ors v West Berkshire District Council & Ors  EWHC 289 is that the Radiation (Emergency Preparedness and Public Information) Regulations 2019 (REPPIR 19), which came into force in May 2019, impose duties on operators who work with ionising radiation and local authorities to plan for radiation emergencies.
The Regulations are part of an international, EU and national response to the meltdown of three reactors at the Fukushima Daiichi nuclear power plant in Japan in March 2011 following an undersea earthquake.
One of the key changes to emergency planning, reflected in the Regulations, was to require risk assessment and planning for events which have a low likelihood of occurrence but high impact in the event they do occur; as with the Fukushima disaster.
Another change, specific to the Regulations, concerned a shift in responsibility for deciding on the extent of a geographical zone in which it is proportionate to plan for protective action in the event of a radiation emergency. The zone is referred to in the Regulations as a 'Detailed Emergency Planning Zone' (DEPZ).
Responsibility used to lie with either the Office for Nuclear Regulation or the Health and Safety Executive but now rests with the relevant local authority, who must designate the zone on the basis of a recommendation from the site operator.
On 12 March 2020, West Berkshire designated the DEPZ around the Burghfield Atomic Weapons Establishment - where nuclear weapons are assembled, maintained and decommissioned - with a minimum radius of 3160m from the centre of the site. The site is of national strategic importance, Mrs Justice Thornton said, with nuclear weapons are assembled, maintained and decommissioned there.
Under the previous regime, the DEPZ was based on a minimum radius of 1600 metres. The extension covers much of the 700 hectares of land belonging to the claimants – Crest Nicholson Operations, Hallam Land Management and Wilson Enterprises – and previously earmarked for the development of 15,000 homes.
The claimants contended that the rationale for the new and radically extended DEPZ on a recommendation by the privately run operator, AWE, was simply not known.
They said the only publicly facing document contained, at best, a partial rationale for the designation, which was insufficient, as a matter of law, to meet the requirements of the Regulations.
The document was not made available to the public until after the DEPZ was designated which was procedurally improper and in breach of statutory requirements. Regulatory oversight of the designation process had been deficient, they claimed.
West Berkshire and various interested parties including AWE, the Defence Secretary and the Office for Nuclear Regulation (ONR) contended that AWE's rationale for the DEPZ and regulatory oversight of the designation process had been entirely adequate.
They submitted that the public was provided with the requisite information, as soon as reasonably practicable, in accordance with REPPIR 19.
It was also argued that the claimants' case failed to grapple properly, or at all, with the true significance in public safety terms of the designation process. Nor did it show any proper understanding of the national security issues arising from the information which underlies the decision.
The claim was motivated entirely by the claimants' private proprietary interests in the development of its site, it was suggested.
Mrs Justice Thornton dismissed the legal challenge, awarded costs to the council and refused the developers leave to appeal.
The judge said the Regulations carefully prescribed the decision making required and, in particular, the roles of the site operator and the local authority.
She said: “The site operator must produce the Hazard Evaluation, the Consequence Assessment and Consequences Report (Regulations 4,5 and 7). The operator must determine the minimum geographical extent of the emergency planning zone (Regulation 7 and Schedule 2 paragraph 4).
“The local authority is then responsible for determining the boundary of the emergency planning zone. In doing so it must decide how to translate the operator's recommendation into a workable emergency plan on the ground (Regulation 8). It may extend the area recommended by the operator, to make the zone workable in practice, but it cannot reduce it (Regulation 8). The local authority has no discretion to exclude property interests from the DEPZ where beneficial urgent protective action should be taken in the event of a radiation emergency. Accordingly, the claimants' commercial aspirations to develop land within the zone are irrelevant to the statutory scheme.”
Mrs Justice Thornton added that the ‘Consequences Report’ prepared by the site operator must include a 'rationale' for the geographical extent of the zone.
“The objective of the rationale is to enable the local authority to set the boundary of the DEPZ. Given the nature of the present challenge it is important to emphasise that the local authority does not have any statutory responsibility for the operator's performance of its duties or a regulatory role in reviewing the operator's work,” she said.
“As explained in the Approved Code of Practice and Guidance for REPPIR 19 "The local authority is not required to have the expertise to verify the technical basis for the minimum extent set by the operator" (§195).”
Mrs Justice Thornton also said that she was not persuaded that West Berkshire could be said to have acted irrationally “in circumstances where (1) the Consequences Report sets out a rationale for the recommended minimum distance; (2) the rationale has been produced by an operator with specialist skills; (3) the rationale has been independently reviewed by ONR who have confirmed that it meets the requirements of REPPIR 19; (4) it has been further independently reviewed by PHE CRCE who have also confirmed it meets the requirements of REPPIR 19; (5) there is no suggestion from the council that it was not able to carry out its function on the basis of the rationale provided.”
The judge also rejected the claimants’ criticisms about whether the ‘Consequences Report” had been provided to the public ‘as soon as possible’ as required by Regulation 21 (10).
She noted that the Consequences Report was sent to the council on 20 November 2019 and the Office for Nuclear Regulation on 21 November 2019. It was disclosed to the claimants six months later on 22 May 2020.
Counsel for West Berkshire explained that this timetable was driven by a decision to finalise the DEPZ, the Emergency Plan and a public information booklet before publishing the Consequences Report. This was so as to avoid causing undue alarm or confusion amongst the public.
Mrs Justice Thornton said: “In my judgement, that is a legitimate and rational exercise of the local authority's discretion on timings under Regulation 21(10).”
She added that the minutes of a meeting organised by the council on 18 February 2020 provided evidence for the prudence of this approach:
"The meeting was emotionally charged for a number of reasons:
- Two of the councils had only very recent knowledge of the Burghfield site and learning how some of their residents could be affected in an emergency was alarming."
The judge therefore rejected the claimants’ submission that West Berkshire’s approach in this respect was 'improper'.
Mrs Justice Thornton said: “No evidence has been put forward to counter the council's case that it was not reasonably practicable to finalise the DEPZ; the emergency plan and the public information booklet before May 2020.
“Mr Harris submits that the failure to inform the claimants was particularly egregious because they were in weekly contact with the local authority about its proposed development. It is clear from the documents before the Court that both the local authority and Wokingham Borough Council were alive to and concerned about the implications of the DEPZ on the claimants' development project. Nonetheless, the claimants' commercial aspirations to develop their land are not relevant to the legislative regime.”
Cllr Hilary Cole, West Berkshire Council's Executive Member for Emergency Planning, said: "I'm delighted with the decision the court has taken. The determination of the Detailed Emergency Planning Zone around the AWE Burghfield site was undertaken with a great deal of diligence and strictly in accordance with the legislative requirements. The judgment has confirmed this."