Court of Appeal
Published September 1, 2014
R (An Taisce (The National Trust for Ireland)) v Secretary of State for Energy and Climate Change
Before Lord Justice Longmore, Lord Justice Sullivan, Lady Justice Gloster
Judgment August 1, 2014
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When granting planning permission for construction of a nuclear power station in Somerset the Secretary of State for Energy and Climate Change had been entitled to conclude that a severe nuclear accident was highly unlikely and that there was, therefore, no need for transboundary consultation with the Republic of Ireland.
The Court of Appeal so stated in dismissing the appeal of the claimant, An Taisce (The National Trust for Ireland), from the dismissal by Mrs Justice Patterson ([2013] EWHC 4161 (Admin)) of the claimant’s application for a judicial review of the grant, by the secretary of state on March 19, 2013, of a development consent order for a new European pressurised reactor nuclear power station at Hinkley Point.
The claimant contended that the defendant had failed to comply with regulation 24 of the Infrastructure Planning (Environmental Impact Assessment) Regulations (2009 No 2263) and article 7 of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (the EIA Directive) in considering whether the plant was “likely to have significant effects on the environment” in the Republic of Ireland.
Mr David Wolfe, QC and Mr John Kenny for the claimants; Mr Jonathan Swift, QC, Mr Rupert Warren, QC and Mr Jonathan Moffett for the secretary of state; Ms Nathalie Lieven, QC and Mr Hereward Phillpot for NNB Generation Co Ltd, an interested party.
LORD JUSTICE SULLIVAN said that it was common ground that the construction of the plant was a project falling within annex I to the EIA Directive. An environmental impact assessment had been required and had been carried out, and the necessary public consultation had been undertaken within the United Kingdom, in accordance with articles 4 to 6 of the Directive.
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The secretary of state had not carried out transboundary consultation in accordance with article 7 because he had not considered that the project was “likely to have significant effects on the environment in another member state”.
The claimant contended that the secretary of state had failed to consult the public in the Republic of Ireland because, inter alia, he had misdirected himself as to the meaning of “likely” within article 7 by “scoping out” severe nuclear accidents on the basis that they were very unlikely.
The Court of Justice of the European Union had not ruled on the meaning of “likely to have significant effects on the environment” in the EIA Directive.
Many environmental statements for major projects which were now prepared on a “real risk” basis were already very lengthy. If environmental statements had to deal with every possible significant environmental effect, however unlikely, unless it could be excluded on the basis of objective evidence, there was a real danger that both the public when consulted and decision takers would “lose the wood for the trees”, thereby causing the EIA process to become less effective as an aid to good environmental decision making: see R (Loader) v Secretary of State for Communities and Local Government ([2013] PTSR 406).
In addition to those wider policy considerations, it was necessary to consider the text of the EIA Directive as a whole. The claimant’s approach to likelihood was inconsistent with the selection criteria set out in annex III. Annex III required the member states to consider both the magnitude and complexity of an environmental impact and the probability of such an impact when deciding whether a project listed in annex II was likely to have significant effect on the environment.
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As a matter of common sense, the greater the potential impact, the lower would be the level of probability at which the competent authority would decide that it should be subjected to the environmental impact assessment process: see Miller v North Yorkshire County Council ([2009] EWHC 2172 (Admin)). That left an area of judgment for the competent authority, balancing the severity of any potential environmental harm against the probability of it occurring. It recognised the fact that some significant effects on the environment, such as a significant radiological impact, were much more significant than others.
Given the wide range of projects covered by the EIA Directive and the express requirement to consider the probability of any impact, even if it was appropriate to apply the “cannot be excluded on the basis of objective evidence” approach to the likelihood of significant effects on the environment in the EIA Directive, there was no realistic prospect of the claimant’s “zero risk” approach being adopted by the Court of Justice.
The court’s attention had not been drawn to any decision of a court in which the claimant’s approach to exclusion had been adopted. However purposive the interpretation of the EIA Directive, a “zero risk” approach to likelihood would be an interpretative step too far and would frustrate, rather than further the purpose of the Directive.
Lady Justice Gloster and Lord Justice Longmore agreed.
Solicitors: Leigh Day Solicitors; Treasury Solicitor; Herbert Smith Freehills LLP.