Factual and Procedural Background
The appeal concerns a judicial review claim brought by the Appellant challenging the Secretary of State's decision dated 16 February 2024 to grant a development consent order under section 114 of the Planning Act 2008. The consent related to a proposed gas-fired electricity generating station with post-combustion carbon capture and storage ("CCS") at Teesside, applied for by Company A and Company B. The claim was dismissed by Judge Lieven on 20 August 2024. The proposed development includes a new gas-fired power station with CCS, a CO2 pipeline network, a compressor station, and an offshore export pipeline. The project aims to provide flexible "mid-merit" electricity generation supporting the UK's net zero target despite producing greenhouse gas ("GHG") emissions. The appellant was involved throughout the examination process, raising concerns about the estimation and assessment of GHG emissions, which led to an upward revision of the emissions figures accepted by the Secretary of State. The Secretary of State concluded that the GHG emissions would have a significant adverse environmental effect but that the benefits of the project outweighed the harms, granting consent accordingly.
Legal Issues Presented
- Whether the judge erred in deciding that the Secretary of State did not rely on the Institute of Environmental Management and Assessment ("IEMA") guidance in concluding that GHG emissions would have a significant adverse impact, and whether there was inconsistency with the conclusion that the development supports the transition to net zero (Ground 1).
- Whether the judge erred in holding that paragraph 5.2.2 of National Policy Statement EN-1 (2011) encapsulates the assessment of significance of GHG emissions for the purposes of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 and the weight to be given to that assessment in the planning balance (Ground 2).
- Whether the judge erred in finding that the Secretary of State was lawfully entitled to endorse the use of the IEMA guidance while assessing significance differently and gave adequate reasons (Ground 3).
Arguments of the Parties
Appellant's Arguments
- The Secretary of State's conclusion that GHG emissions would have a "significant adverse effect" relied on the IEMA guidance's definition, implying the project was incompatible with the UK's net zero trajectory, creating an internal inconsistency with the conclusion that the development supports net zero.
- The Secretary of State failed to give a reasoned conclusion under regulation 21(1)(b) of the 2017 Regulations by not assessing GHG emissions against benchmarks such as carbon budgets or sectoral targets.
- The decision letter's references to the IEMA guidance indicate reliance on its significance criteria, but no alternative method of assessing significance was provided.
- Paragraph 5.2.2 of EN-1 does not encapsulate the assessment of significance for EIA purposes, and national policy cannot predetermine the outcome of significance assessments.
Respondents' Arguments
- The Secretary of State and the Examining Authority relied primarily on the National Policy Statements (EN-1 and EN-2) to assess significance of GHG emissions, using the IEMA guidance only for other purposes.
- The Secretary of State was not obliged to apply the IEMA guidance's section 6.3 significance criteria and lawfully chose to apply national policy instead.
- It is lawful and proper to contextualise GHG emissions and apply judgment in assessing significance and weight without mandatory benchmarks.
- Paragraph 5.2.2 of EN-1 provides legitimate policy guidance encompassing both EIA significance assessment and weight in the planning balance, and the Secretary of State applied it correctly.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Friends of the Earth Ltd.) v Heathrow Airport Ltd. [2020] UKSC 52 |
Analysis of the Planning Act 2008 structure and provisions. |
Referenced to establish statutory context for national policy statements and decision-making. |
| R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) |
Types of irrationality including flawed logic. |
Appellant relied on this for alleged internal inconsistency in decision-making. |
| South Bucks District Council v Porter (No.2) [2004] UKHL 33 |
Principles governing legal adequacy of reasons in administrative decisions. |
Applied to assess adequacy of Secretary of State’s reasons for decision. |
| R (Goesa Limited) v Eastleigh Borough Council [2022] EWHC 1221 (Admin) |
Discretion of decision-maker in assessing environmental impacts and benchmarks. |
Supported the view that the Secretary of State’s judgment on significance was lawful. |
| R (Boswell) v Secretary of State for Transport [2024] EWCA Civ 145 |
Discretion and reasonableness in environmental impact assessments. |
Reinforced that no legal obligation exists to apply specific benchmarks. |
| R (Finch) v Surrey County Council [2024] UKSC 20 |
Scope of Environmental Impact Assessment and its relation to planning decisions. |
Distinguished as not applicable because full EIA was conducted and impacts considered in planning balance. |
| R (ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWCA Civ 43 |
Interpretation of National Policy Statements and judicial review standards. |
Applied to confirm established principles of policy interpretation and challenge grounds. |
| R (Jones) v Mansfield District Council [2003] EWCA Civ 1408 |
Relationship between EIA and decision-making processes. |
Referenced to support integration of EIA conclusions into planning decisions. |
| R (Blewett) v Derbyshire County Council [2004] EWHC 2775 (Admin) |
Purpose of EIA to improve environmental decision-making and avoid procedural obstacles. |
Used to reject artificial distinction between EIA significance and planning weight. |
Court's Reasoning and Analysis
The court’s task was strictly to determine whether the Secretary of State’s decision was lawful. The court examined whether the Secretary of State erred in law by allegedly applying the IEMA guidance’s section 6.3 significance criteria to conclude that GHG emissions would have a significant adverse effect, while simultaneously concluding the development supported the net zero trajectory. The court found no evidence that the Secretary of State applied that section of the IEMA guidance. Instead, the Secretary of State assessed significance in accordance with the National Policy Statements EN-1 and EN-2, which explicitly acknowledge that certain energy infrastructure projects will have significant adverse GHG emissions but that these do not automatically preclude consent.
The court emphasized that the IEMA guidance is advisory and not adopted as government policy or binding on decision-makers. The Secretary of State was entitled to rely on national policy rather than the IEMA guidance’s significance criteria. The references to the IEMA guidance in the decision letter and Examining Authority’s report related to other aspects, such as estimating emissions or climate resilience, not the assessment of significance as contended by the appellant.
Regarding the obligation to provide a reasoned conclusion under the 2017 Regulations, the court held that the evaluation of significance and acceptability of GHG emissions is a matter of judgment for the decision-maker, who may use benchmarks or contextualisation but is not legally required to do so. The Secretary of State’s approach, including sectoral contextualisation and reliance on EN-1 policy, was lawful and adequately reasoned.
On the issue of whether paragraph 5.2.2 of EN-1 encapsulates the assessment of significance for EIA and planning balance, the court upheld the judge’s conclusion that it does. The court rejected the appellant’s argument that national policy cannot prescribe or predetermine the significance assessment. The policy statements were held to provide legitimate guidance for both the EIA significance assessment and the weight given in the planning decision. The court distinguished the present case from the Supreme Court’s decision in Finch, noting that the EIA was properly conducted and the impacts were fully considered in the planning balance.
The court reiterated established principles that the scope and sufficiency of environmental information is for the decision-maker, subject to normal public law review standards. The Secretary of State’s decision was found to be rational, well-reasoned, and consistent with statutory and policy frameworks.
Holding and Implications
The appeal is DISMISSED.
The court upheld the Secretary of State’s decision to grant development consent for the proposed gas-fired electricity generating station with CCS. The ruling confirms that the Secretary of State lawfully assessed the significance of GHG emissions in accordance with national policy statements rather than the IEMA guidance’s significance criteria, and that the reasons given were legally adequate. The decision reinforces the principle that national policy statements may provide legitimate guidance on the significance of environmental effects for both EIA and planning decisions. The court rejected attempts to use judicial review to challenge government energy policy or planning merits under the guise of legal error.
No new precedent was established beyond reaffirming settled principles governing planning decisions under the Planning Act 2008 and the application of EIA regulations in the context of nationally significant infrastructure projects.