Government facing judicial review amid claims it ignored Examining Authority advice before green lighting nuclear power plant development

A campaign group has issued legal proceedings against the Government challenging its decision to allow the Sizewell C Nuclear Power Station to go ahead against the advice of the planning Examining Authority (EA).

Together Against Sizewell C Limited’s (TASC) challenge of the decision by Business Secretary, Kwasi Kwarteng, makes several claims, including that he failed to give lawfully adequate reasons for ignoring the advice, failed to consider all alternative solutions to the project and used a “legally irrelevant” consideration when making the decision.

The EA produced a recommendations report in February 2022, which analysed the plans. The report highlighted issues with securing water supply and ultimately recommended that the power station not be given consent unless the issue could be resolved.  

However, upon hearing assurances from the project’s applicant, NNB Generation Company (SZC) Limited, the Secretary of State gave the green light and granted Development Consent Order for the project in July 2022.

Based on assurances from the applicant, the Secretary of State said he was satisfied that there would be an adequate supply of water during the construction period and that the impacts of the water supply during the construction period had been properly assessed.

Kwarteng said he was also content that there is a “reasonable level of certainty that a permanent water supply solution can be found before the first reactor is commissioned”.

Possible permanent solutions to the problem of long-term water supply presented by the applicant included importing water from neighbouring water companies, nitrate removal, effluent reuse and desalination, and winter storage reservoirs.

As a result, the Secretary of State disagreed with the EA and found that the issue of water supply held neutral weight in the overall planning balance.

Ultimately, Kwarteng gave planning consent and said the “very substantial and urgent need” for the proposal outweighs the harms.

TASC’s judicial review proceedings were issued last month and challenge the decision on the following grounds:

• Failure to give lawfully adequate reasons for departing from the advice of Natural England, who were of the view that the water supply element did form part of the Sizewell C project;
• Failure to consider all alternative solutions to the project, including alternatives to nuclear power, given the purpose of the project, was to generate electricity and that could potentially be done in a less harmful way;
• Taking into account a legally irrelevant consideration, namely the contribution the project would make to reducing Green House Gas (GHG) emissions because the electricity grid is supposed to be carbon neutral by 2035 and, without a permanent water supply solution, there is no guarantee Sizewell C will contribute significantly to that target;
• Acting irrationally by assuming the site would be clear of nuclear material by 2140 when evidence presented to the examination showed that it would be much later;
• Wrongly concluding that the project’s operational emissions would not have a significant effect on the UK’s ability to meet its climate change obligations because no such assessment was conducted.

TASC is supported in this action by two other opposition groups in the area, Suffolk Coastal Friends of the Earth and Stop Sizewell C.

Rowan Smith, a solicitor at Leigh Day who is representing the claimant, said: "For such a locally and nationally important issue, it was vital that the Secretary of State properly assesses the environmental impacts of the project. However, TASC believes that fundamental legal errors were made, particularly in respect of water, alternatives to nuclear power, local wildlife and climate change. We hope these arguments will now be fully scrutinised by the Court.”

Adam Carey