Dr Andrew Boswell, R (on the application of) v Secretary of State for Energy Security and Net Zero

In environmental impact assessment, the significance of greenhouse-gas emissions may be assessed by reference to applicable national policy, including the recognition that substantial residual emissions from energy infrastructure can constitute a significant adverse impact. The decision-maker may then weigh that impact against the wider policy support for the development and its contribution to the transition towards net zero.

There is no rigid legal division between the assessment of significance at the EIA stage and the planning judgment at the determination stage. The reasons must be read fairly and as a whole. A decision-maker is not required to adopt the IEMA Guidance where the decision expressly relies instead on the relevant National Policy Statement. Under paragraph 3.2.3 of EN-1, substantial weight must be given to need, but the policy does not impose a further prescribed test or require additional reasons where the need and the project’s contribution are clear.

The claimant sought judicial review of the Secretary of State’s decision to grant development consent under the Planning Act 2008 for a gas-fired generating station with post-combustion carbon capture and associated carbon dioxide infrastructure at Teesside.

The challenge concerned the adequacy and rationality of the reasoning on greenhouse-gas emissions, the relationship between the IEMA Guidance and the applicable Energy National Policy Statements, and the weight given to the need for the project under paragraph 3.2.3 of EN-1. The claimant argued that a finding of significant adverse effects was inconsistent with the conclusion that the project would help deliver the net-zero commitment.

1. Grounds One and Two(a) dismissed; permission granted. The Secretary of State had not relied on the IEMA Guidance when reaching the conclusion that the project’s greenhouse-gas emissions would have a significant adverse effect. The Decision Letter referred instead to EN-1 and to the substantial quantity of emissions, including more than 20 million tonnes of CO₂ equivalent over the project’s lifetime.
2. The Decision Letter was to be read sensibly and as a whole. Its reasoning was coherent: the project’s emissions could be a significant adverse impact for EIA and planning purposes, while the project could nevertheless support the transition towards net zero in the wider policy context. There was therefore no logical flaw or inadequate reasoning.
3. Ground Two(b) rejected. The claimant’s proposed distinction between EIA assessment and the substantive determination stage was unjustified. Paragraph 5.2.2 of EN-1 comfortably encompassed both the assessment of impacts for EIA purposes and the consideration of the weight to be attached to those impacts in determining the application. The reasoning in R v Blewett supported a common-sense approach to EIA rather than an obstacle course of technical distinctions.
4. The observations in R (Finch) v Surrey County Council did not govern this case. The environmental impacts had been assessed, considered and weighed in the planning balance. This was materially different from a case in which relevant environmental information had not been obtained or assessed.
5. Ground Four was unarguable and permission was refused. The Secretary of State had lawfully assessed the need for the project and attributed substantial positive weight to it. Paragraph 3.2.3 of EN-1 did not require a further prescribed analysis or additional reasons beyond the clear policy background and the project’s identified contribution to national infrastructure need.