Andrew Boswell, R (on the application of) v Secretary of State for Transport

In assessing carbon emissions from a nationally significant infrastructure project, the decision-maker may use professional judgment to determine whether the emissions are compatible with the adopted trajectory towards net zero. The significance assessment under the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 is subject to review on rationality grounds.

Paragraph 5.18 of the National Policy Statement for National Networks requires consideration of whether emissions would materially affect the Government’s ability to meet adopted carbon targets. A planning decision-maker may assume that the separate statutory regime under the Climate Change Act 2008 will operate effectively. The decision-maker is not required to reassess the Government’s delivery risks whenever determining an individual development consent application.

The claimant sought permission to apply for judicial review of the Secretary of State’s decision under section 114 of the Planning Act 2008 to make a Development Consent Order for highway works and a gas pipeline diversion. The scheme was a nationally significant infrastructure project to which the National Policy Statement for National Networks and relevant Energy National Policy Statements applied.

The renewed application challenged the treatment of carbon emissions, the 2030 nationally determined contribution under the Paris Agreement, and the risks that Government policies might not deliver the required carbon reductions. The claimant also sought to amend grounds 4 and 5 following Friends of the Earth v Secretary of State for Energy Security and Net Zero [2024] EWHC 995 (Admin).

Permission refused on grounds 1, 2, 4 and 5. Permission to amend grounds 4 and 5 was also refused because the proposed amendments were not arguable.

1. The assessment of whether a scheme was likely to have significant environmental effects under the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 was a matter of judgment for the decision-maker, subject to challenge on rationality grounds. The IEMA Guidance required assessment of whether emissions were compatible with the adopted trajectory towards net zero. That approach was lawful and had been accepted in R (Goesa Ltd) v Eastleigh Borough Council [2022] EWHC 1821 (Admin).
2. Paragraph 5.18 of the National Policy Statement for National Networks required the Secretary of State to consider whether the scheme would materially affect the Government’s ability to meet its carbon reduction targets. That involved substantially the same judgment as the EIA significance assessment. The decision letter, read fairly and as a whole, showed that the Secretary of State had reached that conclusion.
3. The Secretary of State had expressly considered the Paris Agreement and the 2030 nationally determined contribution. Article 4(2) imposed an obligation to pursue domestic mitigation measures with the aim of achieving the NDC, rather than an absolute obligation to meet it. The reasoning was adequate, intelligible and addressed the principal controversial issues. The conclusion that the scheme’s very small emissions increase would not materially affect achievement of the NDC was not irrational.
4. The decision-maker was entitled to rely on the Government’s stated policies and on the assumption that the separate regime under the Climate Change Act 2008 would operate effectively. Frack Free Balcombe Residents Association v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 2548 (Admin) supported that approach. Assessing and responding to delivery risks was for the climate-change regime, not an exercise to be repeated for every development consent decision.
5. Net Zero II did not establish that the United Kingdom was in breach of the Paris Agreement and did not alter the Government’s stated approach. It therefore did not make the proposed amended grounds arguable.

Sir Peter Lane, sitting as a High Court Judge, refused permission to apply for judicial review on the papers on 11 April 2024. The present court considered the renewed application and refused permission on grounds 1, 2, 4 and 5. Ground 3 was not considered.