High Court rejects challenge to development consent order for Sizewell C nuclear power station

A High Court judge has dismissed a wide-ranging challenge against a decision by the Secretary of State for Business, Energy and Industrial Strategy to grant development consent for the construction, operation, maintenance and decommissioning of the Sizewell C nuclear power station in Suffolk.

The claimant, Together Against Sizewell C Limited ("TASC), was a private company set up by members of a local community group as a special purpose vehicle for the bringing of the claim and to receive public donations to that end.

The development consent order was made in July 2022.

The Secretary of State for Energy Security and Net Zero was substituted as the defendant after the recent shake-up of Whitehall departments.

In Together Against Sizewell C Ltd, R (On the Application Of) v Secretary of State for Energy Security and Net Zero [2023] EWHC 1526 (Admin) the claimant sought to advance the following grounds of challenge:

• Ground 1: Contrary to reg.63(1) of the Habitats Regulations the defendant failed to assess the environmental impacts of the "project" (including the necessary permanent potable water supply solution).
• Ground 2: In the alternative, contrary to reg.63(1), the defendant failed to assess cumulatively the environmental impacts of the power station together with those of the permanent potable water supply solution.
• Ground 3: The defendant failed to supply lawfully adequate reasons for departing from the advice of NE [Natural England] that the permanent water supply should be considered to be a fundamental component of the "operation of the project" and its effects at this stage.
• Ground 4: Contrary to reg.64(1) of the Habitats Regulations, the defendant also failed lawfully to consider "alternative solutions" to the power station before concluding that there were imperative reasons of overriding public interest justifying the environmental harm it would cause.
• Ground 5: The defendant took into account a legally irrelevant consideration (because it was supported by no evidence), namely the contribution the power station might make to reducing greenhouse gas ("GHG") emissions by 78% from 1990 levels by 2035.
• Ground 6: The defendant also acted irrationally in concluding that the power station site would be clear of nuclear material by 2140 and/or failed to supply adequate reasons for rejecting the claimant's case on that point.
• Ground 7: The defendant also erred in law in concluding that the power station's operational GHG emissions would not have a significant effect on the UK's ability to meet its climate change obligations.

Dismissing the claim after a rolled-up hearing in March this yeer, Mr Justice Holgate said: “The court is faced with a similar situation to that which arose in the Heathrow litigation where, having heard full submissions in a rolled-up hearing (in that case dealing with five different claims), it had to decide whether permission to apply for judicial review should be granted on each ground (Spurrier at [667]). In the present case as in Spurrier, the mere fact that the court has had to consider in a rolled-up hearing, and in a judgment, a substantial amount of material and legal submissions, does not mean that the grounds raised pass the threshold for arguability.

“I consider that each of grounds 3 to 7 is totally without merit (CPR 23.12). Accordingly, permission must be refused in relation to those grounds.

“In relation to grounds 1 and 2 I conclude that both are unarguable and permission should be refused.”