AQUIND Limited successfully quash decision to refuse AQUIND Interconnector

Judgment was handed down in the High Court this morning by Mrs Justice Lieven in the case of The King (on the application of AQUIND Limited) v Secretary of State for BEIS and others. The judgment has found in favour of the Claimant, AQUIND Limited, and results in the quashing of the decision of the Secretary of State (SoS) to refuse development consent for the AQUIND Interconnector dated 20 January 2022.

The case centred on the issue of alternatives and the claim was successful on four out of seven grounds, as follows:

  1. failure to take into account relevant evidence relating to alternatives;
  2. failure to discharge the duty under section 104 of the Planning Act 2008 in respect of how decisions must be taken;
  3. failure to apply policies in National Policy Statement EN-1 (Energy) relating to the assessment of alternatives; and
  4. breach of the Tameside duty, to take reasonable steps to inform so as to be able to discharge the relevant statutory duties.

The grounds on which the claim was not successful were: (1) mistake of fact; (2) procedural unfairness in respect of the Claimant not being made aware of concerns and having reasonable opportunity to respond; and (3) Reasons, which was decided to add nothing of further substance to the successful grounds.

This is a great result for our client, AQUIND Limited. The decision on whether to grant Development Consent for the AQUIND Interconnector will now be remitted back to the SoS, for a decision to be taken again on the basis of the strong recommendation to approve issued by Examiners. The project, a new 2,000MW subsea and underground High Voltage Direct Current bi-directional electric power transmission link between the south coast of England and Normandy in France, will have the capacity to transmit up to 16,000,000MWh of electricity per annum, which equates to approximately 5% and 3% of the total consumption of the UK and France respectively. It will deliver significant benefits in terms of the energy trilemma of security, affordability and sustainability, including a significant carbon emissions reduction saving over its lifetime, at a time of great need.

This is also a great result for the industry, with the judgment clarifying how alternatives should be considered in relation to a project and how the policies on alternatives in the NPS should be applied by the decision maker. We know that the decision of the SoS created a lot of uncertainty in this respect, and we are pleased that the judgment has gone some way to resolving that, particularly as the number of projects coming forward to address the issue of the energy crisis and to upgrade the Country’s electrical infrastructure to provide necessary resilience is ever increasing and the issue of alternatives is therefore ever more relevant.

For further information please contact:

Martyn Jarvis
Martyn Jarvis
Senior Associate, Planning, London
+44 20 7466 2680

JR claim against Sizewell C decision withdrawn

The deadline for lodging a claim against the Secretary of State’s decision to grant development consent for the Sizewell C Project was 31 August 2022. A claim for judicial review of that decision lodged by the RSPB on 1 September 2022 has since been withdrawn by the RSPB.

A separate claim has been lodged by Together Against Sizewell C (TASC), relating in summary to the permanent water supply for the project, alternatives and decommissioning, on which Herbert Smith Freehills is advising SZC Co. as an interested party. The interested party considers the claim to be without merit.

Details of the project are available in our blog entitled “Development consent granted for the Sizewell C Project” which is available here.

For further information please contact:

Catherine Howard
Catherine Howard
Partner, Planning, London
+44 20 7466 2858
Charlotte Dyer
Charlotte Dyer
Of Counsel, Planning, London
+44 20 7466 2275

UK Net Zero Strategy successfully challenged for failure to confirm how targets will be met

Court orders UK Government to lay revised strategy before Parliament by 31 March 2023.

Climate change is a global problem. These are the opening words of Mr Justice Holgate’s judgment in respect of a legal challenge to the adequacy of the UK Government’s Net Zero Strategy (NZS) and the statutory reporting undertaken in connection with it. This judgment was released on 18 July 2022, a day on which temperatures in the UK reached 38.1C, just short of the 2019 UK record of 38.7C. On the day of writing UK temperatures are anticipated to reach up to 40C, an experience being repeated across the world. Whilst the NZS notes that the UK currently accounts for less than 1% of global GHG emissions, addressing climate change requires a collective global effort. It is therefore important that the UK Government’s policies and proposals are demonstrably capable of enabling the carbon reductions required to (hopefully) address the effects of climate change.

It is also important that the Government has a coherent climate change strategy and related policies and robust decision making, so that stakeholders have policy certainty and the delivery of projects in the national interest does not stagnate.

Legal challenge

It is in this context that Friends of the Earth, ClientEarth, the Good Law Project and Joanna Wheatly challenged the NZS, published in October 2021. The challenge (by way of judicial review) concerned the Sixth Carbon Budget (CB6) and the adequacy of information provided in respect of how the proposals and policies of the NZS will enable CB6 to be achieved. CB6 is the first carbon budget to be based on the net zero target set out in section 1 of the Climate Change Act 2008 (CCA) as amended – previous budgets were based on the former 80% target for 2050. CB6 is also the first carbon budget to include emissions from international aviation and shipping attributable to the UK. Achieving CB6 is therefore substantially more challenging than the previous carbon budgets. CB6 also relates to the period between 2033 – 2037, meaning that a lot of modelling must be undertaken and assumptions made in order to explain how the NZS policies will enable this budget to be met.

The challenge centred around two important sections of the CCA:

  • section 13, which imposes a duty on the Secretary of State (SoS) to “prepare such proposals and policies” as he considers will enable the carbon budgets which have been set under the CCA to be met; and
  • section 14, which provides that “as soon as is reasonably practicable” after setting a carbon budget, the SoS must lay before Parliament a report setting out proposals and policies for meeting the current and future “budgetary periods” up to and including that budget.

Grounds of challenge

The Court considered three grounds of challenge, the following two of which succeeded in part:

Ground One

Through insufficiencies in the briefing material with which he was supplied, the SoS failed to take into account relevant considerations which were “obviously material”, and therefore matters he had to consider under section 13 of the CCA , namely:

    1. the timescales over which the proposals and policies were expected to take effect;
    2. the contribution which each quantifiable proposal or policy would make to meeting the carbon budgets; and
    3. in relation to his qualitative judgment, which proposals and policies would enable the 5% shortfall for CB6 to be met.

Ground Two

The SoS failed to include in the NZS the information legally required to discharge his reporting obligations under section 14 of the CCA, namely:

    1. an explanation for his conclusion that the proposals and policies within the NZS will enable the carbon budgets to be met;
    2. an estimate of the contribution each of those proposals and policies is expected to make to required emissions reductions in so far as they are judged to be quantifiable; and
    3. the timescales over which those proposals and policies are expected to have that effect.

Ground One

Ground One concerned the briefing material provided to the SoS and whether this was sufficient for the SoS to discharge his statutory duties under section 13. It was found in respect of Ground One that, because of insufficiencies in the ministerial briefing materials, the SoS had failed to take into account information which was legally obliged to take into account, which was not insignificant and which was a material consideration. The information identified to be missing from the briefing material was information relating to the quantification of the contributions that the policies and proposals in the NZS would make to enabling the achievement of CB6 (either individually or when grouped together). As a result of this, the SoS was also not able to consider the risk of shortfalls, noting that it had been assumed in the assessment that the quantifiable proposals and policies would be “delivered in full” and in circumstances where the NZS described the scenarios and the delivery pathway as highly ambitious and referred to considerable delivery challenges. The NZS had also only identified that the policies and proposals would achieve 95% of emissions reductions required for CB6 (which was not evident from the NZS). In the judgment of Mr Justice Holgate, without information on the contributions by individual policies to the 95% assessment, the SoS could not rationally decide for himself how much weight to give to those matters and to the quantitative assessment in order to discharge his obligation under section 13(1).

The 5% shortfall and the information provided on how this would be addressed was also a basis on which Ground One was successful. It was identified that whilst this was critical to the advice given that the proposals and policies would enable CB6 to be met, the SoS was not told:

  • which unquantified policies were being relied upon as part of the judgment that was made;
  • which already quantified policies were assumed to be capable of further development;
  • alternatively, whether the advice and comparison with the delivery pathway did not involve relying upon or identifying any specific policies; or
  • whether any further calculations had been performed, or whether this exercise was solely a matter of judgment.

Ground Two

Ground Two concerned the purpose of the report required by section 14 of the CCA and whether the report issued (the NZS) was sufficient to meet those purposes. Whilst the SoS argued that essentially all that is required is a report to tell Parliament what the policies and proposals to meet the assessment are, the Court rejected this position and found that the report is required to ensure that Parliament is clear about how the Government intends to meet its obligations under the Act, and that this requires to SoS to explain the thinking behind the proposals and how they will enable to carbon budgets to be met. It was further identified that, to satisfy this statutory requirement, quantification of the reductions expected from the implementation of the policies and proposals is legally essential to the explanation which the SoS is required to give under section 14(1) of the CCA as to how he expects those measures to meet carbon budgets.

In addition, it was identified that the NZS failed to explain:

  • that the quantitative analysis carried out by the Department for Business, Energy and Industrial Strategy (BEIS) (which related solely to quantifiable policies with a direct effect on emissions) predicted that those policies would achieve 95%, not 100%, of the reductions required for CB6, and had assumed “delivery in full” of those policies;
  • how it was judged that that 5% shortfall would be made up, including the judgment based upon comparing the 95% result with the projections of the implied performance of the delivery pathway;
  • that information presented in NZS did not present the outcome of the Department’s quantitative analysis of emissions reductions predicted to result from NZS polices; and
  • how that quantitative analysis differed from the modelling of the delivery pathway.

All those matters were identified to be obviously material to the critical issue of risk to the delivery of the statutory targets and matters on which the SoS was obliged to inform Parliament and the public.

What Next?

Noting that the claimants were not asking for the NZS to be quashed, given that they “acknowledge that much of the content of the NZS is commendable”, the Court has ordered the Government to prepare a report explaining how the policies and proposals in the NZS will enable CB6 to be achieved by April 2023. The Government must therefore now address the inadequacies in the information provided to the SoS for the purpose of him preparing the proposals and policies to enable CB6 to be achieved, and also the inadequacies in the information provided to Parliament and the general public about how the Government intends to meet its obligations under the CCA. This will require much more of the workings to be put into the public domain and be subject to further scrutiny, in relation to and including the effects on different sectors of the economy.

As can be seen from this challenge and the recent increase in the use of legal means to hold the Government to account on climate change, the report that is published will be subject to detailed scrutiny and it is not unlikely further challenges may be lodged if it still considered to be too vague to meet the statutory requirements.

And whilst this further reporting process is being undertaken and once published, scrutinised, the real challenge for the Government and stakeholders continues to be the delivery of the projects and policies that will enable the achievement of carbon reduction targets. A task made all the more harder in a challenging climate policy arena, which can at times feel more hopeful than informed, and with decisions from the Government on nationally significant infrastructure projects more often than not being delayed and frequently subject to successful legal challenge.

For further information please contact:

Martyn Jarvis
Martyn Jarvis
Senior associate, planning, London
+44 20 7466 2680

This post has also been published on HSF Real Estate Development Notes.