An Taisce loses challenge to Hinkley Point C consent

This entry reports on the unsuccessful judicial review of the grant of development consent for the Hinkley Point C nuclear power station.

On 19 December judgment was issued in the case of An Taisce (the National Trust for Ireland) v the Secretary of State for Energy and Climate Change. The judgment has now been published and can be found here. Here is a summary and analysis.

The case was heard by Mrs Justice (Frances) Patterson, who only became a High Court judge on 1 October and was formerly head of Kings Chambers in Manchester. She also heard the challenge to the refusal of consent for the Preesall gas storage project last month, for which the judgment is yet to be issued.

In essence, the challenge was that the Irish government should have been consulted on the application under the UK's obligations on 'transboundary effects' of projects (i.e. potential environmental effects on other member states). These arise from the Espoo convention, embodied in the Environmental Impact Assessment directive and then in the EIA regulations for infrastructure planning. Although this was a 'rolled up' hearing of the permission stage and the substantive hearing simultaneously, the judge ruled that she wouldn't have given permission to go to a substantive hearing (paragraph 209 of the judgment).

Summary of arguments

The arguments centred around the need to consult other countries if environmental effects there were 'likely', and what 'likely' actually means in this context, particularly since a nuclear accident, although unlikely, could have severe consequences.

On An Taisce's side were three pieces of guidance and advice: that of the Espoo Convention Implementation Committee, the EU's guidance on transboundary effects, and the Planning Inspectorate's Advice Note 12 on transboundary effects. All of these take a fairly precautionary approach on consultation - the Committee minute suggests that there should be consultation even if there is a 'low likelihood' of an environmental effect, the EU guidance suggests consulting unless an effect on another country 'can be excluded with certainty', and the PINS advice note says that neighbouring countries should be consulted on proposed nuclear power stations (and offshore wind farms) unless there is compelling evidence that they should not.

On DECC's side is the ordinary meaning of 'likely' - more than 50% probability. Indeed, that turned out to be the persuasive point. Using appropriate assessment examples was not relevant since that is a different regime. Relying on other translations of the EIA directive was not relevant as the English version is to be taken as authoritative. Guidance and advice are not law. I liked the point at paragraph 116 that if Ireland had been consulted due to some lowering of the threshold of the meaning of 'likely', then it would receive some documents which would not mention any transboundary effects in them anywhere and what would be the point of that.

To be fair, there is case law, acknowledged by the judge, that likely means 'a real risk' of something happening, suggesting less than a 50% possibility, but given that the Irish government's own advice that the chance of a nuclear accident was between 1 in 50,000 and 1 in 33,000,000, that wasn't particularly relevant to this case. It could, however, be relevant to another case as it does shrink the measure of likelihood.

Other points

Another area that was explored was whether when making a planning decision it was OK to rely on other regulatory regimes dealing with matters such as nuclear safety in the future - the judge concluded that it was (paragraph 193).

Also note that the duty to consider whether to consult other countries is not a one-off, it is a continuing one throughout the application and examination process, in case information comes to light that suggests another country should be involved. Other member states may also request to be involved. Indeed, on the Hinkley project the Irish government was invited to take part a month before the application was made but chose not to do so (rather tellingly, paragraph 47).

The Austrian government did ask to be involved, however, in September 2012. It supplied comments on 5 March 2013, just two weeks before the decision was taken, but the comments were nevertheless taken into account. A German MP complained that Germany hadn't been involved on 13 March 2013, and the Espoo Convention Implementation Committee is investigating the involvement of the Irish, Austrian and German governments.

This judgment is not unexpected - it was always going to be a challenge to characterise a 1 in 50,000 chance as 'likely'. It is also probably motivated by an objection in principle to nuclear power, although an objector to another type of project could make the same points. Given that it was a duty of the government rather than the promoter that was claimed to have been breached, the government should take extra care that EU member states are at least made aware of applications for projects that might have environmental effects there, even if they aren't likely.

Assuming there is no appeal of the decision, EDF Energy will finally have its DCO in the bag and can start buliding it once it has discharged all the requirements that must be complied with before construction can start.

This was the second of a bunch of four Planning Act 2008 judicial review judgments - we still have the refusal of Preesall and the grant of Rookery South to look forward to.

Last day for entries for the champagne competition ... !