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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Boswell, R (On the Application Of) v Secretary of State for Energy Security and Net Zero [2025] EWCA Civ 669 (22 May 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/669.html Cite as: [2025] EWCA Civ 669 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Mrs Justice Lieven
Strand, London, WC2A 2LL |
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B e f o r e :
(Senior President of Tribunals)
LORD JUSTICE STUART-SMITH
and
LORD JUSTICE HOLGATE
____________________
THE KING (on the application of) ANDREW ![]() | Appellant |
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- and - |
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THE SECRETARY OF STATE FOR ENERGY SECURITY AND NET ZERO |
First Respondent |
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-and- |
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(1) NET ZERO TEESIDE POWER LIMITED (2) NET ZERO NORTH SEA STORAGE LIMITED |
Second Respondents |
____________________
Rose Grogan (instructed by Government Legal Department) for the First Respondent
Hereward Phillpot KC and Isabella Tafur (instructed by Freshfields LLP) for the Second Respondents
Hearing dates: 4 and 5 March 2025
____________________
Crown Copyright ©
Sir Keith Lindblom SPT, Lord Justice Stuart-Smith and Lord Justice Holgate:
Introduction
The main issues in the appeal
i) Whether the judge erred in deciding that the Secretary of State did not rely on the guidance issued by the Institute of Environmental Management and Assessment, entitled "Assessing Greenhouse Gas Emissions and Evaluating their Significance" ("the IEMA guidance"), in concluding that GHG emissions from the development would be a significant adverse impact, and so there was no inconsistency between this conclusion and the conclusion that the development supports the transition to net zero: see the judgment at [72]-[77] (ground 1);
ii) Whether the judge erred in deciding at [81] of the judgment, 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 (SI 2017 No. 572 ) ("the 2017 Regulations"), as well as the weight to be given to the assessment of significance as part of a planning balance exercise (ground 2); and
iii) Whether the judge erred in finding at [72] of her judgment that the respondent was lawfully entitled to endorse the use of the IEMA guidance while at the same time assessing significance in a different way, and gave adequate reasons in relation thereto (ground 3).
Our approach to those issues
The legal framework
"(1) When deciding whether to make an order granting development consent for EIA development the Secretary of State must –
(a) examine the environmental information;
(b) reach a reasoned conclusion on the significant effects of the proposed development on the environment, taking into account the examination referred to in sub-paragraph (a) and, where appropriate, any supplementary examination considered necessary;
(c) integrate that conclusion into the decision as to whether an order is to be granted; and
(d) if an order is to be made, consider whether it is appropriate to impose monitoring measures."
The National Policy Statements
"5.2.2 CO2 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 CO2 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 CO2 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 CO2 emissions or any Emissions Performance Standard that may apply to plant."
"2.5.2 CO2 emissions are a significant adverse impact of fossil fuel generating stations. Although an ES on air emissions will include an assessment of CO2 emissions, the policies set out in Section 2.2 of EN-1 will apply, including the EU ETS. The IPC does not, therefore need to assess individual applications in terms of carbon emissions against carbon budgets and this section does not address CO2 emissions or any Emissions Performance Standard that may apply to plant."
"5.3.11 Operational GHG emissions are a significant adverse impact from some types of energy infrastructure which cannot be totally avoided (even with full deployment of CCS technology). Given the characteristics of these and other technologies, as noted in Part 3 of this NPS, and the range of non-planning policies that can be used to decarbonise electricity generation, such as the UK ETS (see Section 2.4), government has determined that operational GHG emissions are not reasons to prohibit the consenting of energy projects or to impose more restrictions on them in the planning policy framework than are set out in the energy NPSs (e.g. the CCR requirements). Any carbon assessment will include an assessment of operational GHG emissions, but the policies set out in Part 2, including the UK ETS, can be applied to these emissions.
5.3.12 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."
Factual background
"16. The Scheme in question comprises a full chain Carbon Capture Utilization and Storage ("CCUS") project comprising a number of elements including:
(1) A new gas-fired electricity generating station (with an electrical output of up to 860 megawatts) with post combustion carbon capture plant; gas, electricity and water connections (for the electricity generating station);
(2) A carbon dioxide (CO2) pipeline network (a 'gathering network') for gathering CO2 from a cluster of local industries on Teesside; and
(3) A high-pressure CO2 compressor station and an offshore CO2 export pipeline.
17. The power plant is described in the Examining Authorities' Report ("ExAR") as being "mid-merit", which means that it is capable of providing flexible generating capacity which can ramp up and down rapidly to meet demand. This allows the electricity grid to be stabilised and thus makes an important contribution to system operability and security of supply."
"19. The Relevant Energy NPS EN-1 and EN-2 were published in July 2011. There are numerous references in EN-1 (2011) to the potential importance of CCS, the benefits in terms of GHG emissions and the approach to be taken to such applications. Paragraph 5.2.2 is but one example: … [see [21] above]
20. In respect of the need for large scale energy infrastructure projects, EN-1 (2011) at paragraph 3.2.3 states:
"This Part of the NPS explains why the Government considers that, without significant amounts of new large-scale energy infrastructure, the objectives of its energy and climate change policy cannot be fulfilled. However, as noted in Section 1.7, it will not be possible to develop the necessary amounts of such infrastructure without some significant residual adverse impacts. This Part also shows why the Government considers that the need for such infrastructure will often be urgent. The IPC should therefore give substantial weight to considerations of need. The weight which is attributed to considerations of need in any given case should be proportionate to the anticipated extent of a project's actual contribution to satisfying the need for a particular type of infrastructure."
21. The support for CCS schemes is then repeated and strengthened 11 years later in EN-1 (2024), which was in draft at the date of the ExAR but designated by the time of the DL. Paragraph 3.5.2 states: "the Climate Change Committee states that CCS is a necessity not an option".
22. EN-1 (2024) provides specific support for the Scheme, see paragraph 4.9.5:
"4.9.5. The government has made its ambitions for CCS clear – committing to providing funding to support the establishment of CCS in at least four industrial clusters by 2030 and supporting, using consumer subsidies, at least one privately financed gas CCS power station in the mid-2020s. In October 2021, the government published its Net Zero Strategy which reaffirmed the importance of deploying CCUS to reaching our 2050 net zero target and also outlines our ambition to capture 20-30Mt of CO2 per year by 2030."
23. There are also a raft of non-planning policies which give support to CCS. These are summarised in the ExAR at Section 3.6. It should be noted that beyond the general support for CCS, there is specific reference to Teesside being identified as a key location for CCUS in the Clean Growth - the UK Carbon capture Usage and Storage Deployment Pathway – Action Plan (2018), see ExAR 3.614.
24. …
25. The Net Zero Strategy: Build Back Greener (October 2021), which set out the Government's proposals and policies for meeting Carbon Budgets is summarised in ExAR 3.6.33 as follows:
"3.6.33. The Strategy states that it will deliver four CCUS clusters, capturing 20-30Mt CO2 across the economy, including 6Mt CO2 of industrial emissions, per year by 2030. This will be done by supporting industry to switch to cleaner fuels, such as low carbon hydrogen alongside renewable energy and CCUS. These clusters, including the East Coast Cluster, which includes Teesside, could have the opportunity to access support under the Government's CCUS programme. The Government has also set up the Industrial Decarbonisation and Hydrogen Revenue Support Scheme, to fund new hydrogen and industrial carbon capture business models."
The IEMA guidance
"A project that follows a 'business-as-usual' or 'do minimum' approach and is not compatible with the UK's net zero trajectory, or accepted aligned practice or area-based transition targets, results in a significant adverse effect."
"It is down to the practitioner to differentiate between the 'level' of significant adverse effects e.g. 'moderate' or 'major' adverse effects"
Pages 25 – 26 of the guidance state that Box 3 provides "an example" of such differentiation. It is important to note that Box 3 distinguishes levels of effect according to the degree of compliance with policy requirements for climate change. Footnote 36 states that levels of "significance" against a "UK net zero compatible trajectory" may "need to be evaluated qualitatively based on policy goals …" where a quantitative trajectory is not available.
The Examining Authority's report
The Secretary of State's decision letter
"4.11. The ExA considered that the Proposed Development would address the urgent need for new electricity capacity as set out in EN-1, the use of natural gas for energy generation (EN-1 and EN-4) and the urgent need for gas-fired electricity generation with CCS (Carbon Capture Storage) infrastructure as set out in the draft 2021 EN-1 [ER 5.2.125]. The Secretary of State notes that this urgent need is also set out in the draft 2023 and 2024 EN-1 and that the Proposed Development would help deliver the Government's net zero commitment by 2050. The ExA consider that by providing CCS the Proposed Development would be in line with Government's wider policy statements on energy and climate change, including those listed in section 3.6 of the ExA report, which constitute important and relevant matters. The UK Marine Policy Statement and the North East Marine Plan are supportive of the deployment of CCS/CCS in the UK Marine Area and local RCBC and STDC policies support the move to a low carbon economy and a CCUS network in the area [ER 5.2.125]. The Secretary of State notes that designated 2024 EN-1 further strengthens the support for the Proposed Development by making nationally significant low carbon infrastructure, including natural gas fired electricity generation which is CCR, a critical national priority. The Secretary of State also acknowledges that the full chain CCUS nature of the Proposed Development elevates it considerably above other CCR projects as it will be required to capture a minimum of 90% of carbon when operating at full load throughout its operation, and will seek to achieve a capture rate of at least 95% (see 4.22 et seq. below). This further contributes to the strong positive weight accorded to the need for the Proposed Development.
…
4.30. The Secretary of State agrees with the ExA's assessment of need for this type of energy infrastructure and has taken into account that the Proposed Development, as CCGT with CCS, attracts strong policy support and would support the UK's transition towards the net zero target. The Secretary of State agrees with the ExA that weight should be given to the benefit of the creation of a CO2 gathering network and ascribes this moderate positive weight. The Secretary of State agrees that the Proposed Development is CCR, that an appropriate approach has been taken in respect of the Offshore Elements and that the issue of alternatives has been appropriately addressed. She agrees with the ExA's position that appropriate controls would be in place through Requirement 31 and the necessary Environment Permits for the CCGT and carbon capture plant. In accordance with paragraph 3.2.3 of EN-1 and paragraphs 3.1.1-3.1.2 of the draft 2021, draft 2023 and designated 2024 NPSs the Secretary of State attributes substantial positive weight to the contribution that the Proposed Development would make towards meeting the national need."
"4.58. The Secretary of State has considered the ExA's report and consultation responses received. She considers that the Proposed Development would support the UK's transition towards a low carbon economy. The Secretary of State has considered the potential benefits which the Wider NZT Project would bring in reducing emissions but accepts the ExA's conclusions that over the lifetime of the Proposed Development, emissions would have a significant adverse effect. She does not, however, agree that this matter carries only moderate negative weight in the planning balance as GHG emissions are stated as having a significant adverse impact in both the 2011 and 2024 designated NPSs and draft 2021 and 2023 NPSs. Taking into account the post-examination inclusion of T&S unavailability emissions and the consequent increase in GHG emissions, the Secretary of State concludes that the cumulative whole life GHG emissions will be in the region of +20,808,127 tCO2e. Also, the Secretary of State notes the resultant increase in the contribution of the Proposed Development to the power sector carbon budgets. She agrees with the ExA in giving more weight to the 2024 NPSs than a comparison with the UK carbon budgets for the assessment of significance but has taken this increase into account. Overall, she considers that cumulative whole-life GHG emissions are a significant adverse effect, carrying significant negative weight in the planning balance."
Although the Secretary of State agreed with the Examining Authority that GHG emissions from the development would have a "significant adverse effect" on the environment, she considered that that should carry significant negative weight in the planning balance, rather than the moderate weight which the Authority had applied.
"7.6 Despite the future benefits the wider NZT Project could bring in terms of reducing CO2 emissions, the ExA identified significant adverse effects in relation to the significant volume of GHG over its lifetime both when considered individually and cumulatively with the sector and ascribed this moderate weight in the planning balance. The Secretary of State, however, considers that the volume of GHG emissions carries significant adverse effects, in accordance with both the designated 2011 and 2024 and draft 2021 and 2023 NPSs (see para 4.56 above) and, therefore, ascribes this significant negative weight in the planning balance. Additionally, the development of the PCC Site would result in significant visual effects to recreational and PRoW users in a number of locations including Seaton Carew seafront, the England Coastal Path at Warrenby and Redcar seafront both during construction and when operational. The ExA, however, considers agreement of a high-quality final design and use of materials in accordance with the SPD and the principles of the Masterplan and Design Guide may assist in mitigation of such effects [ER 7.3.10].
7.7 Overall, the ExA considers that the Proposed Development would be in accordance with relevant NPSs and the benefits significantly outweigh the limited harms such that there is no conflict with s104(7) of the PA2008 [ER 7.3.12]. The ExA also notes that recent energy and climate change policy, including draft policy, constitute important and relevant matters which would justify the approval of the Specified Elements under section 105. The ExA concluded that the case for Development Consent is made [ER 7.3.13]. The Secretary of State agrees with the ExA that the benefits of the Proposed Development attract significant positive weight. She differs from the ExA in her conclusion that the adverse impact of GHG emissions attracts significant, rather than moderate, negative weight. She has considered and weighed the benefits and harms that have been identified and concludes overall that the benefits of the Proposed Development outweigh the harms. She notes that the Proposed Development would be in accordance with policy, including the NPSs. She agrees with the ExA that the case for Development Consent has been made."
"8.8 The Secretary of State has considered that the UK's sixth Carbon Budget requires a 78% reduction of emissions by 2035 compared to 1990 levels. This was proposed to deliver on the commitments the UK made by signing the Paris Agreement in 2016. On 22 June 2021, following advice from the Climate Change Committee, the UK Government announced a new carbon reduction target for 2035 which resulted in a requirement for the UK to reduce net carbon emissions by 2035 from 78% below the 1990 baseline. The Secretary of State notes the Energy White Paper states that National Policy Statements continue to form the basis for decision-making under the Planning Act 2008. The Secretary of State does not consider that the amendment to the Climate Change Act 2008 has lessened the need for development of the sort represented by the Proposed Development which is, therefore, still in accordance with the designated 2011 and 2024 NPSs. 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."
Grounds 1 and 3 of the appeal
Ground 2
"66. [It] is not clear to me how [R (on the application of Finch) v Surrey County Council [2024] UKSC 20; [2024] PTSR 988] is said to be relevant to [this ground]. This is not a case where an environmental impact, GHG emissions, were not fully assessed for the purposes of EIA. Nor is it suggested that those impacts were not considered and weighed in the ultimate planning balance. Both stages of the process were undertaken, and the SoS weighed up the significant adverse impact of GHG emissions, in the ultimate planning balance. Therefore the case is analytically quite different from Finch and the dicta of Lord Leggatt does not impact on the alleged error of law here.
…
74. Second and most importantly in my view, [DL [4.58]] makes perfectly good sense if the [Secretary of State] is assessing significance on the simple basis of EN-1 and EN-2, and through the clear, if perhaps a little simplistic, approach that 20,450,719 tCO2e is a very large quantum of GHG emissions. That related back to what had been said at DL 4.41 and in that context is itself clear.
…
80. The Claimant has in my view erected a bright line distinction between matters that go to EIA and those that go to determination, which is both unjustified but also thoroughly unhelpful. As was said by Sullivan LJ in [R (on the application of Blewett) v Derbyshire County Council [2004] EWHC 2775 (Admin); [2004] Env LR 29], EIA is not supposed to be an obstacle course for decision makers to trip over. The purpose of EIA is inter alia to improve environmental decision making, so the idea that the significance of an impact for assessment purposes is legally distinct from that for determination purposes creates precisely such an obstacle course and is therefore very unlikely to be correct.
81. In my view the language and guidance of EN-1 para 5.2.2 comfortably encapsulates both assessment of impacts for the purposes of EIA and for the consideration of weight to be attached in the determination stage."
"87. The force of the policy, therefore, is not that CO2 emissions are irrelevant to a development consent decision, or cannot be given due weight in such a decision. It is simply that CO2 emissions are not, of themselves, an automatic and insuperable obstacle to consent being given for any of the infrastructure for which EN-1 identifies a need and establishes a presumption in favour of approval. If they were, the policy need and the policy presumption would effectively be negated for certain forms of infrastructure supported by EN-1, and those essential provisions contradicted. Paragraph 5.2.2 does not diminish the need for relevant energy infrastructure established in national policy or undo the positive presumption. But nor does it prevent greenhouse gas emissions from being taken into account as a consideration attracting weight in a particular case. How much weight is for the decision-maker to resolve. It follows that, in a particular case, such weight could be significant, or even decisive, whether with or without another "adverse impact". …".
"151. … It is also necessary to recall that the aim of the EIA is to establish general principles for assessing environmental effects. UK national policy is clearly relevant to the substantive decision whether to grant development consent. But it is irrelevant to the scope of EIA. For reasons discussed earlier, the fact (if and in so far as it is a fact) that a decision to grant development consent for a particular project is dictated by national policy does not dispense with the obligation to conduct an EIA; nor does it justify limiting the scope of the EIA.
152. The second, related flaw is also fundamental. The argument made is a version of the claim that, if information about environmental impacts would make no difference to the decision whether to grant development consent (or on what conditions), it is not legally necessary to obtain and assess such information in the EIA process. Such a contention was resoundingly rejected by the House of Lords in Berkeley. It misunderstands the procedural nature of the EIA. The fact (if it be the fact) that information will have no influence on whether the project is permitted to proceed does not make it pointless to obtain and assess the information. It remains essential to ensure that a project which is likely to have significant adverse effects on the environment is authorised with full knowledge of these consequences."
Conclusion