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

A national policy statement must be interpreted objectively, in its context and according to its evident purpose. Energy policy does not require a quantitative assessment of an individual project’s contribution to need. The decision-maker must make a realistic and predictive assessment of that contribution, but retains discretion over the method used.

Greenhouse gas emissions are neither irrelevant nor necessarily incapable of determining an application. Although they are not an automatic and insuperable obstacle to consent, they must receive such weight as the decision-maker considers appropriate and may, alone or with other harm, be decisive.

The balance under section 104(7) of the Planning Act 2008 may include considerations arising from national policy. It cannot, however, be used to challenge the merits of that policy or circumvent the statutory scheme.

ClientEarth challenged the Secretary of State’s decision to grant development consent for two gas-fired generating units and associated battery storage at Drax Power Station. The examining authority had recommended refusal, principally because it considered that the project had not demonstrated a contribution to an identified need and that its greenhouse gas emissions weighed strongly against consent.

Holgate J dismissed the judicial review claim in [2020] EWHC 1303 (Admin). ClientEarth appealed on three grounds. It contended that the Secretary of State had misinterpreted the national policy on need, misinterpreted the treatment of greenhouse gas emissions, and failed to perform the balancing exercise required by section 104(7) of the Planning Act 2008.

1. Appeal dismissed. The Secretary of State correctly interpreted and lawfully applied the relevant national policy statements. The Senior President of Tribunals delivered the judgment, with which Lewis and Lewison LJJ agreed.

2. A national policy statement is construed objectively, in context and according to its evident purpose. EN-1 deliberately identifies a need for all covered types of energy infrastructure without generally defining that need quantitatively or setting technological targets or limits. Its market-based approach leaves industry to propose particular projects within the Government’s strategic framework.

3. The starting point under EN-1 is that substantial weight is given to a project’s contribution to the established need. The weight in a particular case must be proportionate to the anticipated extent of its actual contribution. This requires a realistic, predictive planning judgment. EN-1 prescribes no single method and does not compel a quantitative assessment, although such an assessment may be appropriate in some cases. The Secretary of State lawfully considered projections, consented schemes and the possibility that those schemes would not be completed before giving the project’s contribution substantial weight.

4. The policy on carbon emissions does not make greenhouse gas emissions irrelevant or weightless. It means that emissions are not, of themselves, an automatic and insuperable obstacle to infrastructure for which national policy identifies a need and establishes a presumption in favour of consent. Their weight remains for the decision-maker. In an individual case they may receive significant or decisive weight, either alone or with another adverse impact. On this point, the court differed from Holgate J’s conclusion that emissions could not be a freestanding reason for refusal.

5. The Secretary of State acknowledged the project’s emissions as a significant adverse impact and considered whether they warranted greater weight in light of the net-zero framework. She lawfully decided that they did not outweigh the project’s benefits.

6. Section 104(7) of the Planning Act 2008 requires a straightforward balance of adverse impacts against benefits. National policy considerations may enter that balance. The subsection cannot be used to challenge national policy, anticipate its statutory review or circumvent section 106(1)(b). The Secretary of State did not fetter her discretion and lawfully concluded that the benefits outweighed the adverse effects.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2021] EWCA Civ 43. The court upheld the Secretary of State’s interpretation and application of the national policy statements and section 104(7) of the Planning Act 2008.
2. High Court of Justice, Planning Court: Holgate J dismissed ClientEarth’s judicial review claim in [2020] EWHC 1303 (Admin).