UK: Sixteen Grounds For Judicial Reviews Of Planning Act Decisions

Last Updated: 14 June 2013
Article by Angus Walker

Today's entry reports on the grounds of claim for recent judicial reviews of decisions made under the Planning Act 2008.

In the week beginning 29 April 2013, four judicial reviews (JRs) were launched against three decisions to grant consent under the Planning Act 2008, the first four.  I have now seen the claim forms for each one and thus share them with you.  If you would like copies of any of them, please let me know.

Since then, a fifth claim has been made, against the refusal of consent for the proposed Preesall gas storage project in Lancashire, this time by the developer of that project, Halite Energy.  The details of that claim are not yet available, though.

An Taisce claim

This is a claim against the decision to grant consent for the Hinkley Point C nuclear power station, made by the Irish equivalent of the National Trust, An Taisce ('an tashka').

It is essentially on a single ground: that the government should have consulted the Irish people (i.e. its government) before the application was made, because the project is 'likely to have significant effects' on the environment in Ireland.  Our government decided it wouldn't and so didn't consult Ireland or any other country.  Unlike the rest of pre-application consultation, transboundary consultation is a duty on the government rather than the developer.  It does consult other countries in some cases - see this blog post for example.

An Taisce's argument is based on the wording of, and case law associated with, the article of the environmental impact assessment (EIA) directive and the corresponding regulation of the EIA regulations made under the Planning Act 2008.

The claim also cites the Planning Inspectorate's advice note on transboundary effects, which says that as a rule of thumb nuclear power stations and offshore windfarms are likely to be likely to have significant environmental effects on other countries.

Greenpeace claim

Greenpeace have launched JR proceedings against the same decision, and although their claim is divided into seven grounds, again there is really only a single allegation: that the withdrawal of Cumbria County Council (CCC) on 30 January this year from the development of a long-term nuclear waste disposal facility in west Cumbria means that it is not currently possible to grant consent for a new nuclear power station according to government policy.

Greenpeace rely on what they call 'the Policy Test', which comes from a government white paper from 2008, 'Meeting the Energy Challenge - a White Paper on Nuclear Power', and is as follows:

'Our policy is that before development consents for new nuclear power stations are granted, the Government will need to be satisfied that effective arrangements exist or will exist to manage and dispose of the waste they will produce.'

When the government granted consent for Hinkley Point C it dealt with the CCC withdrawal in the decision letter by referring to a written ministerial statement  given by Secretary of State for Energy and Climate Change Ed Davey MP at the time.  Greenpeace seizes upon the remark that 'I am optimistic that a site for the GDF will be found' as watering down the 2008 policy.

The seven grounds are then as follows (as paraphrased by me):

  • the government has misconstrued the policy test;
  • the government has not applied the policy test properly;
  • the government has not taken the withdrawal of CCC properly into account;
  • the government was selective in addressing this issue in the decision;
  • the government was irrational in addressing this issue in the decision;
  • the government was therefore irrational in reaching the decision it did; and
  • the government did not give reasons as to why it was still satisfied that there would be long-term disposal of nuclear waste.

Again this is a government issue rather than one laid at the door of the project developer, EDF Energy.

TSLM claim

The third claim was made by Transport Solutions for Lancashire and Morecambe against the consent for the Heysham to M6 Link Road in Lancashire.

This claim is made on five grounds, alleging:

  • the project is not a nationally significant infrastructure project;
  • the developer did not allow representations to be made on the principle of the project at the pre-application consultation stage;
  • it was wrong to rely on the ports and nuclear power national policy statements in support of the project;
  • the developer was wrong to reject alternative alignments on habitats grounds; and
  • the project should have been refused because of the harm it would cause to bats and otters.

FCC Environmental claim

The final claim is by FCC Environmental against the decision to grant consent for the Rookery South energy from waste project in Bedfordshire, still to emerge from the Planning Act regime nearly three years after the application was first made.  Although the decision to grant consent was taken in October 2011, the order was not published until after it had completed special parliamentary procedure, which is the trigger for launching judicial review proceedings.

This one is on three grounds:

  • the rationale for granting compulsory purchase powers in the IPC's decision letter was flawed as it relied on statements in National Policy Statements that were not directed at deciding compulsory purchase issues.
  • the EIA directive has been incorrectly transposed for Planning Act projects that require SPP, since the later stage contains no, or no updated, and consideration of environmental impacts when it should do; and
  • the government did not rectify the error in ground 2 when requested to do so.

So, something of an assault on the Planning Act regime, although many of the grounds are not related to the consenting process iteslf.  Indeed, there is a complete variety of grounds largely particular to each project, but there are some points about the Planning Act regime that will have more general application. 

It is likely to be a couple of months before the next step is taken for any of the claims ('the permission stage'), a judge deciding whether there should be a hearing on them.  Watch this space.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Angus Walker
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