Government concedes judicial review over “serious logical error” in data centre approval

The then Deputy Prime Minister and Secretary of State for Local Government Angela Rayner approved the construction of a new 90MW data centre in Buckinghamshire on 9 July, citing direct and indirect employment impacts and the need for and lack of alternative sites for data centres.

Non-profit Foxglove and climate charity Global Action Plan brought the joint legal challenge against the Government last year, arguing that the decision failed to require an Environmental Impact Assessment (EIA) despite the project's "significant environmental risks".

In a letter sent last week (19 January) and seen by Local Government Lawyer, the Government Legal Department said the decision should be quashed in light of a "serious logical error".

It noted that the planning inspectorate had initially screened the development and concluded it was not an EIA development.

The letter added: "As part of that exercise, natural resources use was assessed. That assessment relied on the Energy Statement and Sustainability Statement, which between them outlined a suite of mitigation measures including for example the adoption of the Climate Neutral Data Centre Pact relating to the sourcing of low carbon energy.

"Not all of those mitigation measures, however, were secured by the grant of permission. Following the Supreme Court’s decision in CG Fry & Son Ltd v SSHCLG [2025] P.T.S.R. 1823, the Secretary of State no longer considers these could be secured at Reserved Matters stage, contrary to the position taken in his defence of 16 September 2025 (which pre-dated the Fry judgment)."

The judgment in Fry clarified at what stage "nutrient neutrality" rules apply.

The Government Legal Department said the Secretary of State now accepted that in screening out EIA based on mitigation measures but then failing to secure those measures, there was a "serious logical error" - and that the reasons for considering the development did not need an EIA were "inadequate".

To that extent, the letter said the claimant's ground of argument regarding the lack of EIA was "made out" and that the claim was arguable and permission should be quashed.

The Secretary of State made no admissions as to the remaining elements of the judicial review challenge, including whether there was a need to assess the climate emissions of running the computers as part of the screening process, and the suggestion that the Energy Statement only related to the administrative elements of the building.

Commenting on the letter, Foxglove co-executive director Rosa Curling called for "strict legal restrictions with teeth", and a mandatory Environmental Impact Assessment for each new data centre as a starting point.

Global Action Plan CEO Sonja Graham echoed the call, adding: “People across the UK are increasingly concerned about data centres’ proliferation and what it means for access to water and power. The government being asleep at the wheel like this will do nothing to reassure them.

“We urgently need tight, legally binding environmental standards for all new data centres, to ensure that Big Tech profits don’t come at the expense of escalating carbon emissions or household bills. Without them, the interests of communities across the UK will continue to be subordinate to those of the US tech billionaires.”

Adam Carey