Introduction

The Court of Appeal for England and Wales delivered a significant judgment on December 20, 2023, in the case of Together Against Sizewell C Ltd, R (On the Application Of) v Secretary of State for Energy Security and Net Zero & Anor ([2023] EWCA Civ 1517). This case centered on whether the Secretary of State for Business, Energy and Industrial Strategy erred in law by not conducting an "appropriate assessment" of the environmental impacts of the permanent supply of potable water to the proposed Sizewell C nuclear power station. The appellant, Together Against Sizewell C Limited (TASC), sought judicial review of the Secretary of State's decision to grant development consent, arguing that the cumulative effects of the power station and its water supply should have been assessed together under the Habitats Regulations.

Summary of the Judgment

The Court of Appeal dismissed TASC's appeal, upholding the High Court's decision that the Secretary of State did not err in treating the permanent water supply as a separate project from the Sizewell C nuclear power station. The court affirmed that the Secretary of State's decision to defer the cumulative assessment of the water supply's environmental effects to a later stage, pending the completion of Northumbrian Water Limited's (NWL) Water Resources Management Plan (WRMP24), was lawful and rational. Consequently, the appeal was dismissed, and the refusal to grant permission for judicial review was maintained.

Analysis

Precedents Cited

The judgment extensively referenced established case law to support the Court of Appeal's decision. Key cases include:

• Ashchurch Parish Council v Tewksbury Borough Council – Clarified that the scope of a project is a matter of judgment for the decision-maker and not subject to judicial reassessment unless irrational.
• Preston New Road Action Group v Secretary of State for Communities and Local Government – Discussed the concept of "salami-slicing" or "project-splitting" to avoid comprehensive environmental assessments.
• R. (on the application of Friends of the Earth Ltd.) v Secretary of State for Transport – Addressed the statutory framework for nationally significant infrastructure projects and environmental assessments.
• Inter-Environnement Wallonie ASBL v Conseil des Ministres – Emphasized the necessity of conducting an appropriate assessment under the Habitats Directive before permitting a project to proceed.

These precedents collectively underscored the court's stance on the discretion of decision-makers and the acceptable use of staged assessments in environmental impact evaluations.

Legal Reasoning

The court's reasoning focused on the interpretation of the "project" under regulation 63 of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”). The key points included:

• Definition of a Project: There is no explicit definition of "project" within the Habitats Regulations. The court relied on existing case law to determine that the Secretary of State's judgment on what constitutes a project is generally beyond judicial scrutiny unless it falls under irrationality or illegality.
• Staged Approach: The court endorsed the Secretary of State's "staged approach," where the primary project (the nuclear power station) and the subsequent project (permanent water supply) are treated separately due to distinct statutory processes and the current uncertainty surrounding the water supply method.
• Avoiding Salami-Slicing: The judgment distinguished between unlawful project-splitting aimed at evading environmental assessments and lawful separations of projects due to functional independence or separate regulatory processes.
• Cumulative Effects Assessment: The court upheld that cumulative effects of separate projects can be assessed at different stages as long as each assessment complies with the required legal standards and is not designed to undermine environmental protections.

Holgate J., the High Court judge, was found to have appropriately exercised discretion and adhered to legal principles in distinguishing between the two projects, thereby ensuring compliance with the Habitats Regulations without inducing undue delays in the planning system.

Impact

The judgment reinforces the acceptance of the staged approach in environmental assessments, particularly under the Habitats Regulations. This has several implications:

• Flexibility for Large Projects: Developers can progress with significant projects even when certain ancillary infrastructures are still in the planning phases, provided that separate assessments are conducted when details become available.
• Judicial Deference to Decision-Makers: Courts will continue to defer to the expertise and discretion of decision-makers, limiting judicial interference to cases of clear irrationality or legal error.
• Prevention of System Sclerosis: By allowing separate assessments, the ruling prevents unnecessary delays in project approvals, thus promoting efficiency within the planning system.
• Environmental Protections Maintained: The decision ensures that environmental assessments remain rigorous, even when conducted in stages, thereby upholding the integrity of protected European sites.

Complex Concepts Simplified

Appropriate Assessment

An "appropriate assessment" is a detailed evaluation required under the Habitats Regulations to determine whether a proposed plan or project is likely to adversely affect the integrity of a European site, such as a Special Protection Area (SPA). It involves assessing the potential environmental impacts and ensuring that conservation objectives are not compromised.

Cumulative Effects

Cumulative effects refer to the combined impact of multiple projects or developments on the environment. Even if individual projects may not have significant effects on their own, their combined actions could lead to substantial environmental degradation.

Staged Approach

The "staged approach" allows for different aspects of a large project to be assessed and approved in phases. Instead of waiting for all components to be finalized, each part is evaluated independently, ensuring continuous progress while maintaining environmental oversight.

Salami-Slicing (Project-Splitting)

"Salami-slicing" is the practice of dividing a single substantial project into smaller, less significant parts to evade comprehensive environmental assessments. Courts view this negatively as it undermines environmental protections.

Conclusion

The Court of Appeal's decision in Together Against Sizewell C Ltd v Secretary of State for Energy Security and Net Zero underscores the judiciary's respect for the discretion of decision-makers in environmental assessments, especially within the framework of the Habitats Regulations. By upholding the Secretary of State's staged assessment approach, the court balanced the need for environmental protection with the practicalities of project development. This judgment affirms that when projects are functionally independent and subject to distinct regulatory processes, separate assessments are lawful and do not constitute an error of law. Consequently, developers can proceed with major infrastructure projects without being unduly hindered, provided that environmental assessments are conducted thoroughly and at appropriate stages.