Crest Nicholson Operations Ltd & Ors v West Berkshire District Council & Ors

Under the Radiation (Emergency Preparedness and Public Information) Regulations 2019, the operator recommends the minimum geographical extent of a Detailed Emergency Planning Zone, while the local authority determines the zone and may extend, but not reduce, that recommendation. The local authority is not required to audit the operator’s technical assessment.

The adequacy of the operator’s rationale is ordinarily a matter for the local authority’s judgment, subject to conventional Wednesbury review. The court should allow an enhanced margin of appreciation for scientific, technical and predictive assessments reviewed by specialist bodies. Publication of the consequences report “as soon as reasonably practicable” does not create a right to consultation before designation. Disclosure in judicial review is exceptional and requires necessity for a fair and just resolution.

The claimants, landowners and developers, sought judicial review of West Berkshire District Council’s designation of a 3,160-metre Detailed Emergency Planning Zone around AWE Burghfield under the Radiation (Emergency Preparedness and Public Information) Regulations 2019. The enlarged zone affected land earmarked for housing development.

The claim challenged the adequacy of the operator’s Consequences Report and rationale, the timing of publication to the public, and the regulatory oversight provided by the Office for Nuclear Regulation. The claimants also sought disclosure of the underlying Hazard Evaluation and Consequence Assessment. The central issues were whether the Council acted unlawfully in designating the zone and delaying publication, and whether disclosure was necessary for a fair and just determination.

1. Regulatory structure. The Regulations allocate distinct functions. The operator prepares the Hazard Evaluation, Consequence Assessment and Consequences Report, including a rationale for its recommendation. The local authority determines the DEPZ and may extend the operator’s recommendation for specified local implementation reasons, but may not reduce it. It has no regulatory responsibility for auditing the operator’s technical work.
2. Standard and intensity of review. The designation depended on highly technical, scientific and predictive assessments. The Court therefore allowed a substantial margin of appreciation, particularly because the work had been reviewed by the specialist ONR and Public Health England. The adequacy of the information supplied to the local authority was a matter for its judgment, subject to conventional Wednesbury review.
3. Rationale. The Consequences Report contained a rationale explaining that the 3,160-metre recommendation resulted principally from considering less frequent weather conditions producing greater consequences. The Regulations did not require the report to reproduce the underlying technical assessment or enable the local authority to verify it. The Council acted rationally on the material available.
4. Publication. Regulation 21(10)’s requirement to publish the report “as soon as reasonably practicable” did not require publication before the DEPZ, emergency plan and public information booklet had been finalised. The Council’s decision to publish in May 2020 was a rational exercise of its statutory discretion. The regime did not provide for public consultation on the land-use implications of designation.
5. Disclosure and outcome. Disclosure was not necessary to resolve the claim fairly and justly. Granting it to assist the claimants’ future understanding of the effect on their land would undermine the statutory information regime. The claim failed and the disclosure application was refused.