An Taisce (The National Trust for Ireland), R (On the Application Of) v The Secretary of State for Energy and Climate Change

For transboundary consultation under Article 7 of the EIA Directive and Regulation 24 of the 2009 Regulations, “likely to have significant effects” means more than a bare possibility and connotes a real risk or serious possibility. The precautionary approach does not require consultation whenever a severe accident cannot be excluded. The assessment may take account of the actual characteristics of the development, including a stringent and technically competent regulatory regime governing matters within another regulator’s jurisdiction. A planning decision-maker may rely on that regime where sufficient information exists to make a comprehensive assessment. The court reviews the decision on Wednesbury principles. The Secretary of State had asked the correct question, considered relevant environmental information, and lawfully relied on the Euratom Commission opinion and nuclear regulatory framework.

An Taisce sought permission, at a rolled-up hearing, to judicially review the Secretary of State’s decision of 19 March 2013 to grant a development consent order under the Planning Act 2008 for Hinkley Point C.

The claimant argued that Regulation 24 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 and Article 7 of Directive 2011/92/EU required transboundary consultation with Ireland because severe nuclear accidents, although highly unlikely, could have significant effects. It also argued that the Secretary of State had relied impermissibly on future regulatory controls, had failed to assess socio-economic effects, and should refer the interpretation of Article 7 to the CJEU.

1. Claim dismissed. After the rolled-up hearing, the court would not have granted permission to bring judicial review proceedings.
2. Article 7 and Regulation 24 use materially the same trigger as Article 2 of the EIA Directive. “Likely to have significant effects” means more than a bare possibility and involves a real risk or serious possibility. The phrase must be construed consistently throughout the Directive. The Habitats Directive cases, including Waddenzee and Solvay, could not simply be transposed. They concerned a substantive, site-specific protection mechanism requiring exclusion of reasonable scientific doubt, whereas the EIA Directive concerns the likelihood of significant environmental effects.
3. The Secretary of State was entitled to treat the prospect of a severe accident as no more than a bare and remote possibility. The environmental statement, the Euratom material, the Generic Design Assessment, the site licensing work, the National Policy Statement, and the expert regulatory material provided a sound and rational basis for that conclusion. The decision-maker was not required to assume that every possible severe accident was “likely”.
4. The actual characteristics of the project included the stringent nuclear safety and environmental regulatory regimes. The existence and future operation of another competent regulatory regime were material considerations. Following Gateshead MBC v Secretary of State for the Environment, Gillespie v First Secretary of State and Blewett, the decision-maker could leave matters within ONR’s expertise and jurisdiction to that regulator, provided he had sufficient information to make a lawful assessment.
5. The Secretary of State had sufficient information to make a comprehensive assessment. Outstanding regulatory matters did not invalidate the decision because they were within the expertise and jurisdiction of the relevant regulators. The court’s role was review on Wednesbury principles, not merits review.
6. The Secretary of State lawfully took the European Commission’s Euratom opinion into account and was entitled to take it at face value. He was not required to reproduce the Commission’s evaluation or undertake the underlying technical work himself. He had asked himself the right question and taken reasonable steps to acquaint himself with the relevant information, applying the approach in Secretary of State for Education and Science v Tameside Metropolitan Borough Council.
7. Any socio-economic consequences would arise from the same severe accident said to constitute the environmental impact. Since that event was not likely on the proper interpretation of Article 7, no separate breach arose.
8. There was no real doubt requiring a reference to the CJEU. The Article 2 authorities could be applied to Article 7, and the Espoo Implementation Committee material had no binding or normative force.