This is entry number 281, published on 3 October 2011, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. Click here for a link to the whole blog.

Today’s entry reports on two legal challenges to nuclear-related aspects of the Planning Act regime.

The Planning Act regime for planning and authorising nationally significant infrastructure is currently facing two judicial reviews, one relating to infrastructure planning and the other to authorisation.  Here is the latest on each one.

Hinkley Point judicial review

Permission was granted for Innovia Cellophane's judicial review of the IPC's decision to allow the Hinkley Point nuclear power station promoter, EDF Energy, to survey its land in Bridgwater.  This means that the judge who read the papers (Mr Justice Collins) thought that Innovia had an arguable case.  The case will therefore go to a hearing, probably around March 2012.

I have seen the judge's decision, and he remarks that the point that 'temporary workers' accommodation' should be treated as 'dwellings', hence can't be in a Planning Act application and therefore can't be subject to land surveying powers, was a strong one

If the JR succeeded, then EDF Energy, and indeed all other project promoters, would have to find other ways to obtain land for workers' accommodation, although on the surveying point itself, the Localism Bill will allow land to be surveyed that is not necessarily within compulsory purchase powers.

Nuclear National Policy Statement judicial review

On 19 July, the government finalised ('designated') six National Policy Statements (NPSs) for energy, which set out the need for new energy infrastructure, and what impacts applicants should address in their applications, and the Infrastructure Planning Commission (IPC) should consider when examining them.  Alone of the six, the Nuclear Power NPS ('EN-6') identifies suitable locations: eight particular sites for new nuclear power stations. 

Following designation, there is a six-week period within which legal challenges may be made.  On 26 August Greenpeace lodged a claim for judicial review of EN-6.  Note that

  • I have had confirmation that no other challenges were made during the six-week period, and
  • the challenge in question only challenges the designation of EN-6 (it could have challenged EN-1, the Overarching Energy NPS, as well) so all other forms of energy infrastructure are 'safe'

I have now had sight of Greenpeace's claim form (thank you, DECC) - here is a summary of its claim.  The background is the Japanese earthquake and tsunami affecting the nuclear power plant at Fukushima on 11 March, to which the government responded by commissioning the chief nuclear inspector Dr Mike Weightman to report on any lessons to be learned for the UK nuclear programme.  Dr Weightman published an interim report on 18 May, and was due to publish a final report in September.  Apparently this is with Secretary of State Chris Huhne and so probably won't be published until the House of Commons recovenes on 10 October.

In a nutshell, Greenpeace say that where the Interim Weightman Report (IWR) recommends that more evidence is obtained, the government should have done this before pressing on and designating EN-6 with the same eight sites identified in it.

There are three areas of evidence identified by Dr Weightman that Greenpeace refers to:

  • flood risk is the main one covered in the claim form, 
  • off-site electricity supplies and
  • on-site emergency controls.

Greenpeace's second head of claim is that the government should have undertaken a further round of consultation on the NPS following the publication of the IWR.

The flood risk argument runs as follows.  EN-6 does not allow the IPC to compare nuclear sites with each other according to their flood risk, as it would do with sites for other energy infrastructure, since the government has already done this in arriving at its eight chosen sites. 

The IWR recommends that flooding studies are reviewed to see if further flood risk assessments are needed, saying later that current Environment Agency data describes flood risks to nuclear sites in general, but not does not do so for specific sites.  Greenpeace say that given the lack of specific flood risk evidence at present, this recommendation was sufficiently important for the government to have implemented it before designating EN-6 with the same eight sites in it. This begs the question as to the relative flood risk of the eight sites, and according to EN-6 these are:

  • Heysham, Sellafield, Wylfa: all of the proposed land is in Flood Zone 1 (low risk)
  • Bradwell, Hinkley Point, Sizewell: some land is in zone 1 and some is in zone 3 (high risk)
  • Hartlepool, Oldbury: all the land is in zone 3

As with the Innovia case, the Nuclear Power NPS challenge will be considered on the papers first and a decision on whether it should proceed to a hearing will take place soon.

If this judicial review succeeded, then the Nuclear Power NPS would be temporarily suspended, but it would not stop nuclear power station applications from being made.