Infrastructure planning blog

This week’s edition (another bumper entry) looks at a High Court judgement relating to the proposed Abingdon Reservoir and a selection of other planning and infrastructure news from the last week.

En Gard(e)!

The High Court handed down its judgement in R (Saferwaters Ltd) v  Secretary of State for Environment, Food and Rural Affairs [2025] EWHC 1885 (Admin) on 23 July. It can be found here.

The case concerned a challenge by Saferwaters Limited (SW), which was set up by Group Against Reservoir Development (i.e., GARD), to the decision of the Secretary of State for the Environment to direct publication of the Water Resources Management Plans (WRMP) for Thames Water and Affinity Water. The central issue was the inclusion in the WRMPs of the South East Strategic Reservoir Option (SESRO), also known as Abingdon Reservoir, without first holding a public hearing or inquiry.

Abingdon Reservoir would have a capacity of 150Mm3, making it one of the largest man-made reservoirs in Europe. Here it is.

The WRMPs, and SESRO in particular, have attracted significant public interest. SW argued that there should be a public inquiry before the WRMPs were made, citing a number of “unresolved issues” which it said needed expert evidence and testing with cross-examination. These issues included SW’s view that the need for SESRO had not been proven, that demand management measures should be prioritised and that the cost appraisal was flawed and biased, amongst others. The SoS has a discretion, under Regulation 5 of the Water Resources Management Plan Regulations 2007 (the 2007 Regulations), to cause an inquiry or hearing to be held in connection with a draft WRMP.

The SoS proceeded to direct publication of the WRMPs without a hearing or inquiry. In doing so, the SoS relied on the fact that the EA and Ofwat were both content that the WRMPs should be published and that SESRO would require development consent, which would involve further consultation and a public examination.

The Ministerial Submission noted:

“There is local interest, but we feel this should be balanced with the urgent need to improve the resilience of water supplies in the South East and the water environment. An inquiry will probably delay development by approximately a year”.

The question for the Court was whether it was procedurally unfair (Ground 1) or alternatively irrational (Ground 2) for the SoS to direct publication of the WRMPs without a hearing or inquiry.

On Ground 1, the Court held that there was no unfairness. There was an open discretion conferred upon the SoS to hold a hearing or inquiry under the 2007 Regulations. GARD’s complaint was as much about the way in which the statutory scheme was structured than its application by the SoS. It was not unreasonable for the SoS to place weight on the delays which would be caused by holding an inquiry. SW argued that there were significant unresolved concerns in relation to the WRMPs, and that these pointed in favour of an inquiry, but SW was really complaining that its objections were unresolved because they were not accepted. The essence of the points SW wanted to make at an inquiry was what it had already made in extensive written representations on the draft WRMPs.

SW also argued that the need for a public inquiry was heightened by the fact that, in the context of a later DCO examination, there would be no opportunity for a property owner faced with compulsory acquisition to argue that there was no need for the reservoir. This was because the NPS for Water Resources Infrastructure provides that, if a project is published in a final WRMP, the need for that scheme will have been demonstrated. The Court was unmoved by these arguments. This was just a reality of the underlying statutory framework for setting a WRMP. I have some sympathy with SW on this point.

In relation to Ground 2, to be successful, SW needed to show that the SoS was subject to an express or implied requirement to take account of SW’s concerns in deciding not to exercise discretion to order a public inquiry. No such requirement existed and, even if there had been one, the SoS had turned his mind to concerns relating to the WRMPs and the question of public interest balanced against urgent need.

The claim was therefore dismissed but GARD’s website confirms that it has lodged a preliminary appeal to the Court of Appeal.

Having the courage of your NPS convictions

Thames Water has requested a section 35 direction, bringing it within the DCO regime, for the project. The request can be found here.

The SoS’ letter accepting that request can be found here. Despite the request seeking confirmation to that effect, the direction does not expressly confirm that section 104 of the Planning Act 2008 would apply to it. The denial of this request has become fairly common in section 35 direction requests might raise uncertainty, and conflicts with various earlier precedents (e.g., the Aquind Interconnector).

Readers will recall that the Wheelabrator judgment posited an apparent distinction between “projects of national significance” which are directed into the regime under section 35, and nationally significant infrastructure projects (yes, you read that right). In that case, the consideration that the project was not an NSIP, but a PNS, meant that the project should have been decided under s105 (where no National Policy Statement has effect), rather than section 104 (where a National Policy Statement does have effect).

Does the failure to direct that section 104 and a relevant NPS have effect mean that the Wheelaborator decision would be followed? Not necessarily: the water resources NPS itself states “where a water resources infrastructure development is treated as a development for which development consent is required through section 35 of the Planning Act, the National Policy Statement will apply”, and the Energy National Policy Statement (EN-1) says much the same.

The arguable contrast here is the draft Ports NPS (which states “the applicability of this NPS will be determined on the facts in the light of the judgment in the ‘Wheelabrator’ case”) and the National Networks NPS (which states “this NPS is likely to be the primary policy for Secretary of State decision making on projects in the field of national networks for which such a direction has been given”). It is potentially in these contexts where the unwelcome distinction raised by the Wheelaborator judgment may arise.

An efficient use of energy?

There was also an interesting Court of Appeal judgement on 25 July in R (Rights: Community: Action Ltd) v the Secretary of State for Housing Communities and Local Government [2025] EWCA Civ 990. The judgement can be found here.

Rights: Community: Action Ltd challenged the lawfulness of a 2023 Written Ministerial Statement (WMS) relating to the setting of housing energy efficiency standards by local authorities. When making policy (which includes the WMS), section 19 of the Environment Act 2021 requires a Minister to have due regard to the policy statement on environmental principles. The environmental principles policy statement (EPPS) can be found here. Although there had been a voluntary EPPS assessment in October 2023, no regard was had to the EPPS when the decision was taken to approve the WMS in December 2023. The Court found that “plainly, there was a breach of the s19 duty at that stage”.

The question was whether a later EPPS assessment, carried out in February 2024, was appropriate to discharge the section 19 duty. The claimant argued that the 2024 assessment “was simply a rearguard action … which was striving to defend an earlier decision in the context of adversarial litigation” (the February 2024 assessment followed receipt of pre-action protocol correspondence).

The Court dismissed the challenge.

The Court held that if there is a breach of the duty when a policy is adopted, it is open to a Minister to later consider afresh whether to approve the policy after having had due regard to the EPPS. That later consideration did not remedy the earlier breach or retrospectively validate that decision but, in the event that compliance with the section 19 duty was later secured, it would not be appropriate for the court to declare that the policy was unlawful or to quash the policy.

The Court also rejected the claimant’s contention that the February 2024 assessment was improperly tainted by concern about a JR challenge. The 2024 assessment covered the same topics and reached broadly the same conclusions as the voluntary assessment undertaken in October 2023. 

Policy yoga and more

The Government has published the Green Flexibility Roadmap. This delivers on the commitment made in the Clean Power 2030 Action Plan to publish the further flexibility measures and milestones required for clean power in 2030 and net zero by 2050. Clean flexibility refers to the ability to shift demand or supply of electricity whilst reducing emissions. It encompasses consumer-led flexibility (e.g., rooftop solar panels and smart tariffs), battery storage, interconnection with neighbouring countries, long duration electricity storage and low carbon dispatchable power. These technologies will work to balance the grid, maximise use of low-cost renewable electricity and provide resilience during periods of low generation.

It identifies 52 actions, including a commitment to new PPG guidance on grid-scale batteries – delivery will be overseen by a new electricity system flexibility division within DESNZ and Government will appoint a “flexibility commissioner” (take your pick of puns).

Finally, DEFRA has published its post-implementation review of the Habitats Regulations (see here). This concludes that the Regulations have only “partially met their objectives of habitats and species protections”, with “room for improvement in implementation and potentially in the Regulations themselves”. A number of next actions to improve the regime are identified, including development of proposals to widen compensatory measures available for offshore wind and improving access to data, evidence and monitoring to streamline HRAs. The document also talks up the Nature Restoration Fund, established by the Planning and Infrastructure Bill – the Government claims that the Fund will improve the HRA process by moving responsibility for identifying actions to address impacts on protected sites and species away from multiple project-specific assessments in an area to a single strategic assessment and delivery plan led by Natural England.

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