“6. It is important to emphasise at the outset what this case is and is not about. Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the relevant procedures and legal principles governing the exercise of their decision-making functions. The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. The choices may be matters of legitimate public debate, but they are not matters for the court to determine. The court is only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully. The claimant contends that the changes made by the SIs are radical and have been the subject of controversy. But it is not the role of the court to assess the underlying merits of the proposals. Similarly, criticism has been made of the way in which, or the speed with which, these changes were made. Again, these are not matters for the court to determine save and in so far as they involve questions concerning whether or not the appropriate legal procedures for making the changes were followed.”
“(1) It shall be the duty of every water undertaker to develop and maintain an efficient and economical system of water supply within its area and to ensure that all such arrangements have been made— (a) for providing supplies of water to premises in that area and for making such supplies available to persons who demand them; and (b) for maintaining, improving and extending the water undertaker’s water mains and other pipes, as are necessary for securing that the undertaker is and continues to be able to meet its obligations under this Part.”
“A water undertaker shall not be required by virtue of this section to provide a new supply to any premises, or to take any steps to enable it to provide such a supply, if the provision of that supply or the taking of those steps would— (a) require the undertaker, in order to meet all its existing obligations to supply water for domestic or other purposes, together with its probable future obligations to supply buildings and parts of buildings with water for domestic purposes, to incur unreasonable expenditure in carrying out works; or (b) otherwise put at risk the ability of the undertaker to meet any of the existing or probable future obligations mentioned in paragraph (a) above.”
“(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which— (a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and (b) is not directly connected with or necessary to the management of that site, must make an appropriate assessment of the implications of the plan or project for that site in view of that site’s conservation objectives. (2) A person applying for any such consent, permission or other authorisation must provide such information as the competent authority may reasonably require for the purposes of the assessment or to enable it to determine whether an appropriate assessment is required. (3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority specifies. (4) It must also, if it considers it appropriate, take the opinion of the general public, and if it does so, it must take such steps for that purpose as it considers appropriate. (5) In the light of the conclusions of the assessment, and subject to regulation 64, the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be). (6) In considering whether a plan or project will adversely affect the integrity of the site, the competent authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which it proposes that the consent, permission or other authorisation should be given. …”
“(1) If the competent authority is satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature), it may agree to the plan or project notwithstanding a negative assessment of the implications for the European site or the European offshore marine site (as the case may be).”
“(2) Where those provisions apply, the competent authority may, if it considers that any adverse effects of the plan or project on the integrity of a European site or a European offshore marine site would be avoided if the order granting development consent included requirements undersection 120 of the Planning Act 2008 (what may be included in order granting development consent), make an order subject to those requirements.”
“A description of the likely significant effects of the development on the environment resulting from, inter alia – … (e) the cumulation of effects with other existing and/or approved projects, taking into account any existing environmental problems relating to areas of particular environmental importance likely to be affected or the use of natural resources; …”
“The environmental statement referred to in paragraph (1) must– (a) … (b) include the information reasonably required for reaching a reasoned conclusion on the significant effects of the development on the environment, taking into account current knowledge and methods of assessment; and (c) … ” (a) … (b) include the information reasonably required for reaching a reasoned conclusion on the significant effects of the development on the environment, taking into account current knowledge and methods of assessment; and (c) … ”
“2.1.16 It is because the long-term planning of water supply is the subject of separate statutory provisions and processes that the identification of the source of Sizewell’s long-term supply cannot be known at this stage. Indeed, the source may well change during the lifetime of the power station as the undertaker develops and manages its water resources in response to changing demand and other considerations. For the same reasons, and because on the evidence the source of supply is unlikely to be a constraint to the construction and operation of the new power station, the source does not need to be known for the purposes of the DCO. 2.1.17 NPS EN-1 is clear that that the DCO decision maker should work on the assumption that other regimes and regulatory processes will be properly applied and enforced so that decisions on DCO applications should complement but not seek to duplicate other processes (NPS EN-1 paragraph 4.10.3). That same principle is clear from paragraph 188 of the NPPF, i.e. planning decisions should assume that regimes will operate effectively.”
“64. Relevant factors may include: i) Common ownership – where two sites are owned or promoted by the same person, this may indicate that they constitute a single project (Larkfleet at [60]) ii) Simultaneous determinations – where two applications are considered and determined by the same committee on the same day and subject to reports which cross refer to one another, this may indicate that they constitute a single project (Burridge at [41] and [79]); iii) Functional interdependence – where one part of a development could not function without another, this may indicate that they constitute a single project (Burridge at [32], [42] and [78]); iv) Stand-alone projects – where a development is justified on its own merits and would be pursued independently of another development, this may indicate that it constitutes a single individual project that is not an integral part of a more substantial scheme (Bowen-West at [24 – 25])”
“2.1.1. It is Natural England’s advice that pushing any Habitats Regulations Assessment (HRA) conclusions for integral and inextricably linked elements of the project down the line into other consenting regimes beyond the Development Consent Order (DCO) raises the likelihood that cumulative and ‘in combination’ impacts in these regards may get missed/ downplayed, and we wish to draw the Examining Authority’s attention to this point. 2.1.2. For example, the current Water Supply Strategy proposes a mains pipeline to the site from the central/ northern Suffolk Water Resource Zone (WRZ). The environmental impacts of this pipeline have not yet been fully assessed through the HRA process. Neither have the interim solutions of a desalination plant as proposed through Change 19 [PD-050] (not considered within the RIES) and tankered water supply. Currently, the Applicant’s position is ‘no likely significant effects (LSE)’ to any European sites from water use as stated in [REP7 -073] and summarised in paragraph 3.2.55 of the REIS. Clearly, such works could lead to a LSE on those European sites already scoped into the HRA or European sites further afield through the pipeline works, abstraction of this magnitude and other associated works to facilitate it. The water supply is a fundamental component of the eventual operation of the project, and the potential impacts of its construction should be clearly assessed in accordance with sections 4.2 and 5.15 of National Policy Statement EN-1 (NPS EN-1), sections 3.7 and 3.9 of NPS EN-6 and paragraph 3.3.9 of the Planning Inspectorate’s Scoping Opinion for the Proposed Sizewell C Nuclear Development (July 2019) [APP-169]…”
“4.365 The Secretary of State notes the post-Examination representations submitted by IPs related to flood risk, including Mr Bill Parker who raised concerns regarding the protection from flooding during operation, decommissioning and the residual time spent fuel is stored on site. The Secretary of State notes the EA’s letter to Mr Bill Parker of7 June 2022 which confirmed that the FRA extended to 2190, and that for the Reasonably Foreseeable actual risk up to 2190, there would be no inundation of the main platform or SSSI crossing from overtopping of the HCDF or the remaining lower northern and southern sand dunes/shingle defences in all events up to the 0.1% annual probability flood events in 2019. The EA’s letter also included a subsection titled ‘ONR’ response, confirming that during the operation of a nuclear licenced site, it is a regulatory expectation for the licensee to periodically review the validity of the safety case for all facilities on site against external hazards, to ensure the site remains protected, including the dry fuel store and taking updated climate change projections into account for coastal flood hazard.”
“4.279 The ExA considers [ER 5.8.232 et seq.] the adequacy of the proposed climate change adaptation measures and the resilience of the Proposed Development to ongoing and potential future coastal change during its operational life and any decommissioning period including the scope for the HCDF to undergo design adaptation to maintain nuclear safety against predicted sea level rises. The Sizewell Coastal Defences Design Report [REP8-096] provides a design description of the HCDF Adaptive Design at section 3.11 and is designed to protect the Proposed Development from a 1 in 10,000 year storm event with reasonably foreseeable (“RF”) climate change effects up to the end of its design life in 2140. The ExA consider that the Applicant recognises that, given the inherently uncertain nature of climate change, the RF climate change scenario may be exceeded. ONR and EA guidance requires that the sea defence be capable of adaptation to a credible maximum sea level rise [ER 5.8.252]. The sea defences have therefore been designed to allow for future adaptation to accommodate the credible maximum scenario, should it develop. The Adaptive Design would provide a simple means of increasing the crest height of the HCDF to reach a crest level of 16.4m OD [ER 5.8.252]. The implementation of measures to enact the Adaptive Design would be driven by progressively observed effects of climate change, specifically mean sea level rise. The MDS FRA [AS-018] confirms that the impacts of climate change on sea level rise would be monitored and assessed at set intervals to determine the trajectory of the projections, and consider whether there is any change from either the current considered projections or the climate change guidance as applied in the application [ER 5.8.253]. A number of issues were raised by IPs in relation to Adaptive design and its implementation [ER 5.8.254 et seq.]. Having considered the submissions and responses from the Applicant [ER 5.8.252 et seq.] the ExA takes the view that as indicated in relation to the SMP, and having regard to the details and explanation provided by the Applicant, that the HCDF, including the Adapted Design, would be positioned as landward as possible. In addition, the requirement 19 in the Order would provide a means whereby the design details of various aspects of the HCDF would require ESC approval in consultation with the MMO and the EA before commencement of that work. The ExA considers that this would provide an appropriate safeguard at detailed design stage in relation to matters relating to layout, scale and external appearance of the HCDF, and its integration with other marine infrastructure [ER 5.8.256].”
“The issues of coastal defences, and the impact of climate change on the modelling for the safety of those defences, were considered by the ExA in section 5.8 and section 5.7 of the ExA Report respectively. The ExA considers [ER 5.20.101] that the coastal defences have been designed so they can be modified if it is necessary to do so, with the monitoring of the sea levels secured through the CPMMP, and this is further reinforced by the obligations required by the NSL regime regulated by the ONR and the permits regulated by the EA. The ExA is persuaded [ER 5.20.102] that the Applicant’s conclusions are predicated on the basis that the site will be clear of nuclear material by 2140, the period which has been modelled for coastal defences, and under these circumstances the ExA consider the tests set out in paragraph 2.11.5 of NPS EN-6 would be met.”
“Operational emissions will be addressed in a managed, economy-wide manner, to ensure consistency with carbon budgets, net zero and our international climate commitments. The Secretary of State does not, therefore need to assess individual applications for planning consent against operational carbon emissions and their contribution to carbon budgets, net zero and our international climate commitments.”
“5.2.2. CO 2 emissions are a significant adverse impact from some types of energy infrastructure which cannot be totally avoided (even with full deployment of CCS technology). However, given the characteristics of these and other technologies, as noted in Part 3 of this NPS, and the range of non-planning policies aimed at decarbonising electricity generation such as EU ETS (see Section 2.2 above), Government has determined that CO 2 emissions are not reasons to prohibit the consenting of projects which use these technologies or to impose more restrictions on them in the planning policy framework than are set out in the energy NPSs (e.g. the CCR and, for coal, CCS requirements). Any ES on air emissions will include an assessment of CO 2 emissions, but the policies set out in Section 2, including the EU ETS, apply to these emissions. The IPC does not, therefore need to assess individual applications in terms of carbon emissions against carbon budgets and this section does not address CO 2 emissions or any Emissions Performance Standard that may apply to plant.”
“The ExA concludes that the ES [APP-342], as updated by [AS-181, REP2-110], and [REP10-152], demonstrates that construction emissions from the Proposed Development would be less than 1% of the UK Government’s carbon budget for the relevant period, and would not be significant in accordance with the criteria as described in Chapter 26 [APP-342]. The ExA is therefore content that those emissions would not materially affect the ability of the Government to meet the UK’s obligations under the Paris Agreement. Similarly, the gross emissions associated with the operational phase have been found to be less than 1% of relevant periods in which they arise. The ExA also recognises the support provided by national policy for low carbon power generation projects such as the Proposed Development, and that the importance for the UK’s carbon budgets should also be considered from the perspective of the carbon emissions that would otherwise be produced by other sources, if they were not generating. The national policy support for such low carbon generation projects has been considered in detail in section 5.19 of this Report.”