In July 2022, the then business secretary Kwasi Kwarteng granted permission for the 3.2 gigawatt power station to be built alongside the existing Sizewell B nuclear plant, in the Suffolk Coast and Heaths Area of Natural Beauty (AONB).
This was despite the Planning Inspectorate noting that NNB Nuclear Generation, a subsidiary company created by French energy giant EDF, was unable to identify a permanent water supply, without which it said it “could not be licensed and could not operate”.
In August 2022, campaign group Together Against Sizewell C (TASC) represented by law firm Leigh Day, brought a judicial review against the decision on the grounds that Kwarteng had failed to assess the implications of the project as a whole by ignoring the issue of whether a permanent water supply could be secured - the group said it is clear a new desalination plant would be required to guarantee supply.
In June this year, the challenge was dismissed by the High Court who found that the approach to the water supply was lawful, and that Kwarteng did not need to take into account the impact of water supply.
However, Court of Appeal judge, Lord Justice Coulson, has granted TASC permission to appeal Mr Justice Holgate’s refusal in the High Court of its judicial review, saying that TASC’s arguments around the need for a desalination plant should be looked at again.
The judge said that, given Kwarteng gave permission for the power station against the advice of the Examining Authority, and because TASC’s range of arguments about the need for water supply, the appeal had a “real prospect of success”.
He added that a further reason to grant permission to appeal was the scale of the Sizewell C project and public interest surrounding it.
On appeal, it is argued that Mr Justice Holgate was wrong to say that NNB Generation Company (SZC) Limited was “unable to identify a permanent supply of potable water” and that the water supply connections were “simply unknown”.
TASC argues that the company could at any time have decided to proceed with a desalination plant but, instead, chose to keep open the option of a supply provided by Northumbrian Water Ltd (NWL). Also, it is put that if Sizewell C did rely on NWL for its potable water, the scale and location of the power station would necessitate additional infrastructure and the impacts of this, including harm to protected European sites, have not been assessed.
Together Against Sizewell C (TASC) chair Jenny Kirtley said: "TASC are delighted by the Appeal Court's decision and welcome the acknowledgement that our appeal, challenging the secretary of state’s approval of Sizewell C, has a ‘real prospect of success’.
“Sizewell C’s long-term supply of potable water is speculatively reliant on Northumbrian Water's proposed 2024 water supply plan, which requires domestic consumers to reduce their water use by over 30% while simultaneously reducing current water abstraction levels to protect the environment.
"Sizewell C’s dependence on an energy intensive and polluting desalination plant for the 15-year construction period and potentially for 60 years of operation, should have been assessed and presented in the Development Consent Order Application, but was not. After nearly 15 years of consultation and planning it is astonishing that this £30 billion-plus nuclear project has no clear path towards a sustainable operational plan for its water requirements.
“We thank our legal team for all their efforts and all those who have supported our campaign."
Leigh Day solicitor Rowan Smith said: “Our client is delighted that the courts will further scrutinise the lawfulness of the process that led up to the decision to grant development consent for a third nuclear power plant at Sizewell.
“TASC will now have another chance to argue that the permanent water supply was either part of the Sizewell C project, meaning its impacts needed to be assessed as part of the whole development application, or the water supply was a separate project, in which case its likely impacts needed to be added to those of the power station.”
Seperatley, the government has also announced that from today, private investors will have their first chance to come forward and qualify to invest in Sizewell C power station.
The initial process launched today invites partners to complete a pre-qualification assessment. Companies will have to demonstrate that they meet the key criteria for entering negotiations on a potential equity stake in Sizewell C, including experience in delivering major infrastructure projects.
ENDS has contacted the Department for Energy Security and Net Zero for comment on the news of the appeal.