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Council defeats legal challenge over planning permission for replacement facilities at nuclear power station

East Suffolk Council has successfully defended its decision to grant EDF Energy Nuclear Generation planning permission to provide replacement facilities for the Sizewell B power station.

The existing facilities need to be relocated so that parts of the Sizewell B site can be used for the proposed Sizewell C project, an application for a development consent order for which was submitted to the Planning Inspectorate in May this year.

This will allow the normal operational cycle of Sizewell B to be maintained and the conditions of the nuclear site licence to be satisfied.

The development related to the demolition of the existing outage store, laydown area, operations training centre, technical training centre, visitor centre and a garage, the removal of 676 parking spaces and the provision of a new outage store, laydown area, training centre, and 688 parking spaces, access roads and landscaping.

The Strategic Planning Committee at East Suffolk approved the application on 9 September 2019 subject to certain requirements.

The claimant in Girling v East Suffolk Council [2020] EWHC 2579 (Admin) is a local resident and member of Together Against Sizewell C. She raised two grounds of challenge:

  • East Suffolk unlawfully failed to consider the need for, and alternatives to, the proposal for the purposes of paragraph 172 of the NPPF [the key policy protection of Areas of Outstanding Natural Beauty] in addressing whether there were exceptional circumstances to justify development (Ground 1(b));
  • The council failed to reach a lawful conclusion that the environmental information was "up to date" contrary to regulation 26 of the Town and County Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 571) ("the 2017 Regulations). (Ground 2)

Mr Justice Holgate dismissed the claim.

On ground 1 (b) he said: “In other cases there might be force in Mr Wolfe's [counsel for the claimant’s] submission that where it is necessary for a planning authority to consider whether there are exceptional circumstances and public interest sufficient to outweigh harm to an AONB, and the developer relies upon a need to carry out advance works in order to speed up the subsequent delivery of the main project, then it may well be ‘obviously material’ for the authority to consider some quantitative information so as to be able to understand approximately how much time would be saved and to decide how much weight to give to that factor as against the net harm actually resulting from those works.

“However, in the circumstances of this case, where the Council was legally entitled to conclude that, viewed overall, there was no material harm to the AONB, but rather benefits to the AONB, I do not accept that the Council acted irrationally by not requiring a quantitative assessment of the time saving for the SZC project or to consider that matter.”

Mr Justice Holgate said he was reinforced in that conclusion by the combination of other factors which the council accepted as forming part of the overall "exceptional circumstances" case for the proposal, “notably the urgent national need for new nuclear power generation endorsed in the NPSs, the identification of the SZC site as potentially appropriate for an additional nuclear power station, the public interest in reducing the risk of overlapping construction programmes for SZC and other substantial infrastructure projects in the area, and the lack of suitable sites outside the AONB (paragraph 8.6.3 of the officer's report).”

On ground 2, the judge said: “A "reasoned conclusion" of the authority is taken to be up to date if the authority judges that its conclusion addresses the likely significant environmental effects. Here the Council judged that the surveys relating to breeding birds were sufficiently reliable for present purposes.

“The object of regulation 26(2) is straightforward, namely to prevent a planning permission being granted if there has been a delay since the time when the authority's "reasoned conclusion" was reached without the authority being satisfied that it may still be relied upon. This deals with the risk of a material change of circumstances occurring between an authority reaching its "reasoned conclusion" and the grant of planning permission.”

Mr Justice Holgate said it was  impossible to read the officer's report as indicating that the council was not satisfied that its "reasoned conclusion" under regulation 26(1) was up to date, whether in relation to the whole or any part of the environmental information.

“The collective views of officers on the environmental assessment were brought together and included in the officer's report, which was considered by the committee not long afterwards. The decision was issued about 2 months after the committee's resolution. The Council did not consider that its reasoned conclusion, expressed through the officer's report and minutes, had become out of date during that period, and the Claimant suggest otherwise.”

The judge added: “Quite apart from the construction of regulation 26(2), the issue of whether the survey information on breeding birds (which formed only one aspect of the overall ecological information) was "up to date", taking into account the more recent surveys of habitats, was a matter of judgment for the Council going to the quality of that information. It may therefore only be challenged in the courts if that judgement was irrational…”.

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