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

14 August 2024

[2024] EWHC 2128 (Admin)

High Court

Someone challenged the government's approval of a new power plant with carbon capture. They argued the decision was poorly reasoned. The court disagreed, saying the government's decision was clear and followed the rules, even if a helpful guide was also used in the process. The court upheld the government's approval.

Key Facts

•Judicial review of the Secretary of State's (SoS) decision to grant development consent for a gas-fired electricity generating station with carbon capture at Teesside.
•Claimant argued the decision letter lacked adequate reasons and contained flaws in reasoning regarding GHG emissions assessment and the need for the scheme.
•The scheme involves a gas-fired power station, CO2 pipeline network, and offshore CO2 export pipeline.
•The IEMA Guidance, used in the Environmental Statement (ES), played a central role in the challenge.
•Relevant National Policy Statements (NPSs) EN-1 (2011 and 2024) supported CCS projects, including this one.
•The SoS concluded the scheme had significant adverse GHG emissions but also contributed to the UK's net zero commitment.
•The court considered the relationship between EIA assessment and the substantive decision-making process.

Legal Principles

Adequacy of reasons in decision-making.

Section 116 of the Planning Act 2008; R (Law Society) v Lord Chancellor [2019] 1WLR 1649

Judicial review standard for challenges to EIA assessments; margin of appreciation for scientific judgments.

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; R (Goesa) v Eastleigh Borough Council [2022] PTSR 1473; R (Boswell) v Secretary of State for Transport [2024] EWCA Civ 145; R (Blewett) v Derbyshire County Council [2004] Env LR 29

Interpretation of EIA Regulations; avoiding an 'unduly legalistic approach'.

R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] PTSR 190; R (Blewett) v Derbyshire County Council [2004] Env LR 29

Weight given to 'considerations of need' in planning decisions.

Paragraph 3.2.3 of EN-1; ClientEarth v SSBEIS [2021] PTSR 1400

Relationship between EIA process and substantive planning decisions; scope of EIA.

R (Finch) v Surrey CC [2024] UKSC 20

Outcomes

Grounds One and Two(a) dismissed.

The SoS's decision letter, when read as a whole, showed she did not rely on the IEMA Guidance for her conclusion on the significance of GHG emissions; instead, she based it on EN-1 and the large quantity of emissions. Even if she had relied on IEMA, the strong policy support for the scheme would likely have led to the same conclusion.

Ground Two(b) dismissed (permission to amend granted).

The court rejected the claimant's bright-line distinction between EIA assessment and substantive determination, finding the EN-1 guidance applicable to both stages. There was no misinterpretation of EN-1.

Ground Four dismissed (permission to amend refused).

The need for the project was sufficiently clear from the policy background, the ExAR, and the decision letter. No further reasons were legally required.

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

Key Facts

Legal Principles

Outcomes

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