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

Judicial review examines the legality of a planning decision, not the merits of national energy or climate policy. A decision-maker assessing the significance of greenhouse gas emissions is not required to apply non-binding practitioner guidance, use a benchmark, or contextualise emissions unless that approach is chosen. The significance and acceptability of estimated emissions are matters of judgment. National planning policy may guide the assessment both for environmental impact assessment and for the planning balance, but it does not predetermine the result. Environmental impact assessment and decision-making remain distinct but related stages. A decision letter gives adequate reasons if it explains the approach taken, the relevant policy, the estimated emissions, and the weight attributed to them.

The appellant challenged the Secretary of State’s decision to grant a development consent order under the Planning Act 2008 for a gas-fired electricity generating station and associated carbon capture, utilisation and storage infrastructure at Teesside.

Lieven J dismissed the judicial review claim: [2024] EWHC 2128 (Admin). The appeal pursued three grounds. They concerned the alleged use of the IEMA guidance in assessing significance, the role of paragraph 5.2.2 of EN-1 in the environmental impact assessment and planning balance, and whether the Secretary of State had reached a legally adequate reasoned conclusion on the greenhouse gas emissions. The central issue was whether the decision-making involved legal error, inadequate reasons, or a failure to comply with the environmental impact assessment regulations.

Appeal dismissed. The Court of Appeal gave a unanimous joint judgment.

1. Scope of review. The court’s task was confined to legality. The merits of Government energy policy, the desirability of gas-fired generation with carbon capture, and the planning merits of the proposal were irrelevant to the judicial review.
2. Grounds 1 and 3. The IEMA guidance was practitioner guidance and had not been adopted as Government policy. Neither the Examining Authority nor the Secretary of State applied its section 6.3 significance criteria. References to other parts of the guidance did not incorporate those criteria. The Secretary of State was entitled to assess the emissions by considering their absolute quantity, contextualisation, and the relevant policies in EN-1. She was not required to resolve the parties’ dispute about the application of section 6.3.
3. The significance and acceptability of estimated greenhouse gas emissions were matters of fact and judgment for the decision-maker. The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 did not prescribe a particular method, benchmark, or contextualisation exercise. The Secretary of State had nevertheless made a sectoral comparison and explained that emissions would be managed on an economy-wide basis consistently with carbon budgets and the net zero target. Her reasons were legally adequate under section 116 of the Planning Act 2008.
4. Ground 2. It was legitimate in principle and in this case to draw on paragraph 5.2.2 of EN-1 and paragraph 2.5.2 of EN-2 when forming conclusions about significance for environmental impact assessment and the planning balance. The policies acknowledged that emissions could be significant, but did not make them an automatic obstacle to consent. They provided guidance rather than predetermining the outcome. The policies had to be applied to the facts, and that was done lawfully.
5. The reasoning in Finch did not assist the appellant. This case did not involve an inadequate scope of environmental impact assessment or the omission of environmental information. The relevant information was assessed, a reasoned conclusion was reached, and that conclusion was integrated into the decision. Environmental impact assessment and planning decision-making are distinct but related processes; a rigid bright-line separation between significance and weight was unjustified.
6. The challenge could not be used to attack the content of the national policy statements themselves. The Secretary of State’s conclusion that whole-life emissions would have a significant adverse effect and should carry significant negative weight was adequately reasoned and not irrational.

• Court of Appeal (Civil Division). Appeal dismissed. [2025] EWCA Civ 669.
• High Court of Justice, King’s Bench Division, Planning Court. Lieven J dismissed the judicial review claim challenging the development consent decision. [2024] EWHC 2128 (Admin).