Crest Nicholson Operations Ltd v West Berkshire DC

Queen's Bench Division (Administrative Court) [2021] EWHC 289 (Admin)

In May 2019, the Radiation (Emergency Preparedness and Public Information) Regulations 2019 (REPPIR 19) came into force. The Regulations impose duties on operators who work with ionising radiation and local authorities to plan for radiation emergencies. The Regulations are part of an international, EU and national response to the meltdown of three reactors at the Fukushima Daiichi nuclear power plant in Japan in March 2011 following an undersea earthquake. The earthquake was the most powerful earthquake recorded in Japan and the fourth most powerful earthquake recorded in the world, since modern record-keeping began in 1900. It triggered a tsunami, which swept the Japanese mainland killing more than 10,000 people and which caused the meltdown of the reactors. Residents within a 12-mile radius of the plant were evacuated.

One of the key changes to emergency planning, reflected in the Regulations, is to require risk assessment and planning for events which have a low likelihood of occurrence but high impact in the event they do occur; as with the Fukushima disaster. Another change, specific to the Regulations, concerns a shift in responsibility for deciding on the extent of a geographical zone in which it is proportionate to plan for protective action in the event of a radiation emergency. The zone is referred to in the Regulations as a 'Detailed Emergency Planning Zone' (DEPZ). Responsibility used to lie with either the Office for Nuclear Regulation or the Health and Safety Executive but now rests with the relevant local authority, who must designate the zone on the basis of a recommendation from the site operator.

On 12 March 2020, West Berkshire District Council designated the DEPZ around the Burghfield Atomic Weapons Establishment with a minimum radius of 3160 m from the centre of the site. The site is of national strategic importance. Nuclear weapons are assembled, maintained and decommissioned there. Under the previous regime, the DEPZ was based on a minimum radius of 1600 metres. The extension covers much of the 700 hectares of land belonging to the Claimants and previously earmarked for the development of 15000 homes.

The Claimants contend that the rationale for the new and radically extended DEPZ on a recommendation by the privately run operator, AWE, is simply not known. The only publicly facing document contains, at best, a partial rationale for the designation, which is insufficient, as a matter of law, to meet the requirements of the Regulations. The document was not made available to the public until after the DEPZ was designated which was procedurally improper and in breach of statutory requirements. Regulatory oversight of the designation process has been deficient.

West Berkshire District Council (the Defendant); AWE; the Secretary of State for Defence and the Office for Nuclear Regulation (the First, Second and Fourth Interested Parties) contend that AWE's rationale for the DEPZ and regulatory oversight of the designation process has been entirely adequate. The public was provided with the requisite information, as soon as reasonably practicable, in accordance with REPPIR 19. The Claimants' case fails to grapple properly, or at all, with the true significance in public safety terms of the designation process. Nor does it show any proper understanding of the national security issues arising from the information which underlies the decision. The claim is motivated entirely by the Claimants' private proprietary interests in the development of its site.

Permission to apply for judicial review was granted by Lieven J on 21st July 2020.

Russell Harris QC and Richard Turney acted for the Claimant (instructed by DAC Beachcroft LLP).

David Blundell QC and Sasha Blackmore acted for the Second Interested Party (instructed by Government Legal Department).

The judgment can be found here.

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