Clientearth, R (on the application of) v Secretary of State for Business, Energy and Industrial Strategy & Anor

In a development consent order application governed by a designated National Policy Statement, the merits of national policy cannot be reopened through the examination or the Planning Act 2008 planning balance. A contention that policy is out of date belongs to the statutory review mechanism.

EN-1 establishes a qualitative need for the energy infrastructure types it covers, including carbon-capture-ready fossil-fuel generation. It does not require a quantitative assessment of project-specific need. EN-1 gives substantial weight to a project's contribution, assessed by its function and scale. Greenhouse gas emissions remain a significant adverse impact and may be weighed under section 104(7), but the NPSs do not make them a freestanding reason for refusal. The Secretary of State lawfully balanced those impacts against the project's benefits. The claim was dismissed.

ClientEarth sought judicial review under section 118 of the Planning Act 2008 of the Secretary of State's decision to grant Drax Power Ltd a development consent order for two gas-fired generating units and associated infrastructure at Drax Power Station.

The examining authority recommended refusal, finding that the proposal did not meet an individual need and would have significant greenhouse gas impacts. The Secretary of State disagreed, relied on the energy National Policy Statements, and made the Order. The claim raised issues concerning need, greenhouse gas emissions, section 104(7), carbon-capture readiness, environmental-impact monitoring, the net-zero target, procedural fairness and rationality.

The claim for judicial review was dismissed. The Secretary of State had lawfully granted the development consent order.

1. Statutory framework and policy. The merits of policy in a designated NPS cannot be challenged in the examination or determination of an individual DCO application. Section 104(7) cannot be used to circumvent section 104(3), or sections 87(3), 94(8) and 106. A significant change affecting the basis or content of an NPS must be addressed through the review mechanism in section 6. The court applied the approach explained in R (Spurrier) v Secretary of State for Transport [2020] PTSR 240 and the Thames Blue Green Economy decisions.
2. Need. EN-1 establishes a general qualitative need for the types of infrastructure it covers. It does not require a quantitative assessment of the individual need for every proposed project. The 2017 projections and pipeline of consented gas stations were therefore irrelevant to the project-specific policy assessment. The Secretary of State was entitled to give substantial weight to the proposal's contribution, assessed by its function and scale, including flexibility and capacity supporting renewable generation.
3. Greenhouse gas emissions and the planning balance. EN-1 paragraph 5.2.2 and EN-2 paragraph 2.5.2 mean that emissions are not, by themselves, a reason to refuse consent or a matter requiring assessment against carbon budgets. They do not make emissions legally irrelevant or require them to receive no weight. The Secretary of State acknowledged their significant adverse effect and considered them under section 104(7), but reasonably concluded that the project's benefits outweighed its adverse effects.
4. Other grounds. The carbon-capture-readiness assessment complied with the applicable policy and regulations; the reasonable-scenarios criterion was implicit in economic feasibility and was not a separate additional requirement. The existing greenhouse-gas permitting regime constituted an existing monitoring arrangement for the purposes of the EIA Regulations, and no additional DCO monitoring measure was required. The procedural-fairness grounds failed because the Minister did not rely on the late submission, officials' knowledge was not imputed to her, and no material prejudice was shown. Arguments attacking the compatibility of existing NPS policy with the net-zero target belonged to section 6 review. The irrationality ground was withdrawn.

The claim was dismissed.

The judgment is a first-instance judicial review. It records that the examining authority recommended refusal of the DCO, but the Secretary of State disagreed and made the Order. No appellate history is stated in the judgment.