What is a ‘project’? Yet more guidance

This week, the Court of Appeal handed down judgment in R (Together Against Sizewell C) v Secretary of State for Energy Security and Net Zero [2023] EWCA Civ 1517, another important judgment in an increasingly long line of recent cases on the question of what comprises a ‘project’ for the purposes of appropriate assessment in the context of (in this case) the Habitats Regulations. It follows on from the much-publicised ‘bridge to nowhere’ judgment handed down by the Court of Appeal in February (R (Ashchurch RPC) v Tewkesbury Borough Council [2023] EWCA Civ 101).

The facts are very well-known. In brief, in 2022, the Secretary of State granted a DCO with respect to the Sizewell C nuclear power station. He concluded, contrary to the Examining Authority, that the power station was a separate ‘project’ from the necessary permanent supply of potable water to the station and that no appropriate assessment was therefore required, notwithstanding that the water undertaker had not at that stage even identified the proposed source of the supply.

Earlier this year, Holgate J refused permission to apply for judicial review on all seven grounds advanced ([2023] EWHC 1526 (Admin)). The Claimant applied for permission to appeal, and Coulson LJ ordered a further rolled-up hearing on two of those grounds. The two issues were:

1. Was SoS wrong in law to treat the permanent supply of potable water to the power station as not part of the same project for the purposes of appropriate assessment?
2. If SoS was right to do so, did he err in failing to carry out a cumulative assessment of its effects together with the power station itself?

In a careful and comprehensive judgment of the court, the Court of Appeal (The Senior President of Tribunals, Andrews LJ and Lewis LJ) refused permission to appeal on both grounds, concluding:

1. No, his conclusion was “legally impeccable” ([74]), considering the Wingfield factors (R (Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin)) ([70]-[87]).
2. No, his approach was consistent with a long line of domestic and European authority to the effect that such an approach was permissible ([88]-[98])

A number of interesting points arise from the judgment, which is important reading for anyone dealing with the thorny issue of ‘project’. Some of the most interesting points are as follows:

1. The Court took care to confine Ashchurch to its “peculiar facts” ([72]), emphasising on the facts of this case the independent statutory duty on the water undertaker to provide a water supply. That is in addition to the more obvious distinction that, in Ashchurch, the complaint was that the authority had not turned their mind to the ‘project’ question at all, as opposed to having done so erroneously.
2. Two particularly significant factors in this case were that the water undertaker was already under a statutory duty to provide a water supply quite independent of the grant or refusal of the DCO ([78]), and that at the time of the examination, no actual water supply could be identified ([79]). Both came under the heading of “functional interdependence” as far as the Wingfield factors are concerned, but both were considered significant by the Court.
3. In the specific context of associated utility infrastructure, the Court expressly endorsed the observations of Holgate J about the risk of “sclerosis in the planning system”, were a general rule to be established that planning decisions on major developments must be made with the benefit of the chosen supply of all utilities providers already established ([83]).
4. The Court expressly recognised that the caselaw did not speak with a consistent voice on whether the assessment of ‘project’ was a planning judgment reviewable on Wednesbury grounds only, or a question of law for the courts (particularly noting Sales LJ in R (Larkfleet) v South Kesteven District Council [2015] EWCA Civ 887). Perhaps unusually for a permission judgment (given there is no prospect of onward appeal), the Court took the time to emphasise that its conclusion would have been the same were it required to answer the question for itself as a matter of law ([87]).

Overall, the judgment provides further useful guidance on what constitutes a ‘project’ for appropriate assessment purposes, albeit the answer to these facts was relatively clear. As well as re-endorsing the Wingfield factors, the judgment identifies a number of other important considerations and principles which practitioners will need to bear in mind in navigating this area.

Those wanting further information on this topic should listen to episode 42 of the Planning Podcast, entitled ‘Where does my “project” start and stop?’, with Richard Kimblin KC and Odette Chalaby , available here.