Infrastructure Planning Blog

This week’s blog entry looks at the Court of Appeal’s dismissal of Dr Boswell’s judicial review challenge to Net Zero Teesside.

Tee-dious litigation

On 12 February 2024, the Secretary of State granted development consent for a new gas-fired electricity generating station at Teesside (up to 860MW of electrical output) with Carbon Capture Utilisation and Storage. The project is known as Net Zero Teesside.

Dr Boswell sought to challenge that decision by way of judicial review. His claim, which centred on the CO2 impacts of the project (estimated at approximately 20MtCO2e for the onshore and offshore elements of the project, albeit 90% of emissions from the generating station would need to be captured when the project is operating at full capacity) was dismissed by the High Court in August last year (the judgement can be found here) but Dr Boswell appealed the decision to the Court of Appeal. The Court of Appeal judgement was handed down on 22 May and can be found here.

The project has now been fending off legal challenges for 15 months since the DCO was made. And this is in circumstances where the Court described Dr Boswell’s approach as ‘… a classic example of the misuse of judicial review in order to continue a campaign against a development (and the policy in a NPS) once a party has lost the argument on the planning merits’. I have some further reflections on this later in this entry.

Carbon copy

Many of the grounds of challenge will be familiar to readers. There are clear parallels with Dr Boswell’s (unsuccessful) legal challenges against the suite of A47 DCO schemes and recent challenges brought by other environmental groups such as Transport Action Network and Bristol Airport Action Network.

There were three grounds of appeal. I must confess it took me several reads to fully understand them, which I do not think particularly helped the claimant’s cause.

• Ground 1 argued that the Secretary of State had relied upon 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 project would be a significant adverse effect (and, therefore, in terms of the IEMA guidance not compatible with the UK’s net zero trajectory). On that basis, it was argued that the Secretary of State’s finding that the impact of these emissions would be significant and adverse meant that the project was not compatible with the UK’s net zero trajectory, and this was inconsistent with the Secretary of State’s later conclusion that the development would support delivery of net zero.
• Ground 2 alleged that the High Court had been wrong in its interpretation of paragraph 5.2.2 of National Policy Statement EN-1, that “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)” encapsulates the assessment of significance for the purpose of the 2017 EIA Regulations as well as the weight to be given to the assessment of significance as part of the planning balance exercise. Dr Boswell claimed that paragraph 5.2.2 dealt with the latter but could not amount to an assessment of significance for the purposes of the 2017 EIA Regulations (given that the Secretary of State identified a significant adverse effect on the basis of paragraph 5.2.2, I am really not at all clear about the motives behind this ground).
• Ground 3 alleged that the Secretary of State could not endorse the applicant’s use of the IEMA Guidance for the purpose of assessing significance in the ES, while at the same time assessing significance in a different way, and/or gave inadequate reasons for doing so. Essentially, this ground was arguing that, if you do not use the IEMA Guidance to evaluate the significance of an effect, you have to benchmark or contextualise significance in some other way.

(Net) zero successful grounds

The Court of Appeal dealt with Grounds 1 and 3 together and dismissed them both.

The Court held that Ground 1 involved “an obvious misreading of the Examining Authority’s report and the Secretary of State’s decision letter”. It required interpreting the decision letter as if the Secretary of State had implicitly applied section 6.3 of the IEMA guidance (such that the project would necessarily be incompatible with the UK’s net zero trajectory per the rest of section 6.3), which was not the case. Rather, the Secretary of State had considered significance by reference to the policies in NPS EN-1. In relation to the IEMA guidance, it is worth noting that the Court said:

‘The status of the IEMA document is that it provides guidance to practitioners. It has not been adopted as part of any policy for the determination of applications under the Planning Act 2008, nor has it been adopted as part of any other government policy.’

On Ground 3, the court found that the evaluation of the significance of an estimated amount of GHG emissions and its acceptability was a matter of fact and judgement for the decision-maker. There was no legal principle which required a public authority to contextualise the GHG emissions or to compare them with a benchmark.

Finally, in dismissing Ground 2, the Court summed up the position in the following way:

"There is no legal or practical reason why national planning policy should not provide guidance on the question of the “significance” of environmental effects of one kind or another. And there is no reason in law why national planning policy in a NPS should not include guidance on the question of whether particular effects will be, or are likely to be, “significant” in the sphere of EIA.”

Can you capture me now?

This case is exhibit 1 for those who have called for changes to the judicial review process.

Readers may recall that the Planning and Infrastructure Bill at clause 11 (see here) includes provision restricting appeals to the Court of Appeal ‘… if the High Court decides that the application for permission to apply for judicial review is totally without merit’.

However, that provision will apply to appeals where permission for judicial review has been refused, not to appeals against decisions where permission was granted but the substantive grounds of claim dismissed.

In the High Court, Lieven J rejected grounds 1 and 2 but considered that they were arguable so granted permission to appeal in respect of them. The Court of Appeal has now concluded that ground 2 in particular was a classic example of the misuse of judicial review (and, therefore, surely totally without merit?) That is an odd outcome and not one that the Bill will remedy unfortunately.

I think the Bill could and should have gone further in weeding out mediocre cases, recognising the national significance of the projects at stake and the financial and social cost of delays to their delivery. Measures which would remove the costs protection from those who courts identify as people who "misuse" the system would be welcome (as would capping costs to crowd funded amounts and inflation adjusting the existing caps). Measures which add further process (including confirmation orders which would simply end up with at least 4-9 months of delay and risk politicising DCO decisions) should generally be avoided, in my view.

On the subject of the Bill, the report stage in the House of Commons will begin on Monday 9 June. We will be reporting on its progress in later entries.

Biodiversity net gain for Nationally Significant Infrastructure Projects (“NSIPs”)

Finally, on Wednesday this week, the Government launched a consultation on the implementation of biodiversity net gain (“BNG”) for NSIPs. The consultation closes on 24 July. The consultation document can be found here. There is quite a bit to digest, so we will get into the detail in next week’s entry. However, one immediate point to note is that the Government has pushed back the date from which mandatory BNG will apply to NSIPs to May 2026 (originally, it was November 2025).

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2025. Specific advice should be sought for specific cases. For more information see our terms & conditions.