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

The Court of Appeal considered the correct interpretation and application of the Overarching National Policy Statement for Energy (EN-1) and the National Policy Statement for Fossil Fuel Electricity Generating Infrastructure (EN-2) in the context of a development consent order for new gas-fired generating units at Drax. The court held that EN-1 does not compel a decision-maker to carry out a project-specific quantitative assessment of 'need' for every energy NSIP; instead the decision-maker must give "substantial weight" to a project's contribution to the need identified in the NPSs but may decide how that weight is apportioned in the particular case, including by means of a predictive, proportionate planning judgment under paragraph 3.2.3. The court also held that paragraph 5.2.2 of EN-1 (and paragraph 2.5.2 of EN-2) does not render greenhouse gas emissions irrelevant or incapable of being decisive; rather CO2 emissions are a significant adverse impact that must be weighed in the section 104(7) balance but are not, by policy, an automatic bar to consent. Finally, the Secretary of State did not misapply section 104(7) of the Planning Act 2008: she carried out the required balancing exercise, lawfully gave substantial weight to need under the NPSs and lawfully weighed greenhouse gas and other adverse impacts against the benefits.

The appeal arose from Holgate J.'s dismissal of ClientEarth's claim for judicial review of the Secretary of State's decision to make the Drax Power (Generating Stations) Order 2019, approving construction of carbon capture ready gas-fired units (Units X and Y) at Drax Power Station. ClientEarth participated in the examination and the examining authority recommended refusal. The Secretary of State disagreed and granted development consent. ClientEarth challenged that decision under the Planning Act 2008.

The Court of Appeal granted permission on three grounds: (i) whether the Secretary of State misinterpreted EN-1 on assessing an NSIP's contribution to the identified need, (ii) whether she misinterpreted EN-1 on greenhouse gas emissions, and (iii) whether she misapplied section 104(7) of the Planning Act.

• Nature of the application: judicial review of a development consent order made under the Planning Act 2008, seeking to quash the DCO on grounds of policy misinterpretation and misapplication of statutory duties.
• Issues framed by the court: proper construction of EN-1/EN-2 on 'need' (paragraphs 3.1.1, 3.1.3, 3.1.4 and 3.2.3), the role of paragraph 5.2.2 of EN-1 and paragraph 2.5.2 of EN-2 on CO2 emissions, and the content of the statutory balancing exercise under section 104(7).

The court reasoned that EN-1 establishes a policy framework which (a) recognises a general need for the categories of infrastructure covered, (b) requires substantial weight to be given to a project's contribution to that identified need, and (c) permits the decision-maker in any given case to decide, as a matter of planning judgment, what weight is proportionate to the anticipated extent of the project's actual contribution. The court rejected the submission that EN-1 mandates a quantitative, project-specific need assessment for every NSIP. On greenhouse gas emissions the court concluded that EN-1/EN-2 acknowledge CO2 as a significant adverse impact but state that such emissions are not, of themselves, reasons to prohibit projects of the covered types; CO2 may nonetheless be given significant or even decisive weight in the s.104(7) balance depending on the facts. On section 104(7) the court held that the Secretary of State had lawfully weighed adverse impacts (including greenhouse gas emissions and landscape effects) against benefits (including the contribution to need) and had not unlawfully fettered the required statutory balancing exercise.

The court therefore dismissed the appeal and upheld the Secretary of State's decision to make the DCO.

Appeal dismissed. The court held that (i) EN-1 does not require a project-specific quantitative demonstration of need in every case but requires a planning judgment on the weight to be given to a project's contribution to the need identified in the NPSs; (ii) EN-1/EN-2 treat CO2 emissions as a significant adverse impact that must be weighed in the section 104(7) balance but do not make CO2 an automatic bar to consent; and (iii) the Secretary of State lawfully applied section 104(7) by balancing adverse impacts against benefits and did not fetter her discretion.

Appeal from the High Court (Planning Court) decision of Holgate J dismissing ClientEarth's claim for judicial review: [2020] EWHC 1303 (Admin). Permission to appeal granted by Lewison L.J.; appealed to Court of Appeal, decided [2021] EWCA Civ 43.