Introduction

Judicial review of planning approvals for energy projects is an important mechanism through which courts supervise the legality of decisions made by planning authorities, ministers, regulators, and other public bodies. Energy projects—such as wind farms, solar parks, electricity-generating stations, transmission infrastructure, oil and gas developments, battery-storage facilities, and nationally significant infrastructure projects—often involve substantial environmental, economic and public-interest considerations.

Judicial review does not normally allow the court to substitute its own planning judgment for that of the competent authority. Its central purpose is to determine whether the decision-maker acted within the powers granted by law, followed the correct procedure, considered legally relevant matters, ignored irrelevant matters, complied with environmental-assessment requirements, and reached a decision that is legally rational.

In the UK context, this area is particularly significant because planning decisions concerning energy projects may involve the Town and Country Planning Act 1990, the Planning Act 2008, environmental-impact-assessment legislation, the National Planning Policy Framework (NPPF), National Policy Statements (NPSs), climate legislation and sector-specific regulatory regimes.

Recent Supreme Court decisions, particularly Finch v Surrey County Council [2024] UKSC 20, demonstrate that environmental assessment can be a decisive ground of challenge in energy-related planning litigation. (Supreme Court UK)

1. Meaning of Judicial Review in Energy Planning

Judicial review is a public-law remedy by which the courts examine the lawfulness of governmental and administrative action.

When an energy project receives planning approval, an affected person, community organisation, environmental group or other person with sufficient standing may challenge the decision where there is an arguable public-law error.

Typical grounds include:

Illegality – the authority misunderstood or exceeded its statutory powers.

Procedural unfairness – legally required procedures were not followed.

Failure to consider relevant considerations.

Taking irrelevant considerations into account.

Irrationality/unreasonableness.

Failure to comply with environmental-impact-assessment requirements.

Failure to comply with statutory climate or environmental obligations.

Misinterpretation of national planning policy.

Failure to provide legally adequate reasons where reasons are required.

Breach of legitimate procedural expectations in appropriate circumstances.

The court is therefore principally concerned with legality rather than the merits of the energy project itself.

2. Planning Decisions and Energy Infrastructure

Energy projects can be subject to different planning regimes depending upon their nature and scale.

For example:

a solar farm may require ordinary planning permission;

an onshore wind project may involve local planning authorities;

large electricity-generating infrastructure may qualify as a Nationally Significant Infrastructure Project (NSIP);

certain projects require a Development Consent Order (DCO) under the Planning Act 2008;

oil and gas developments can require planning permission together with environmental and sector-specific authorisations.

For NSIPs, the Planning Act 2008 establishes a specialised regime. National Policy Statements provide the policy framework against which applications are considered, while the relevant decision-maker determines the individual project application.

The Supreme Court has emphasised that a National Policy Statement does not itself grant development consent; it establishes the policy framework within which subsequent DCO applications are determined. (Supreme Court UK)

3. Grounds for Judicial Review of Energy Planning Approvals

A. Error of Law

The most fundamental ground is that the decision-maker misunderstood the law governing the application.

An energy planning authority may, for example:

misinterpret a statutory planning requirement;

misunderstand an NPS;

incorrectly interpret an environmental regulation;

apply the wrong legal test;

misunderstand the scope of its discretion.

A court can quash a planning decision where the legal error materially affects the decision.

B. Failure to Consider Relevant Considerations

Planning authorities must consider matters which the relevant legislation or planning framework requires them to consider.

For energy projects, relevant considerations may include:

environmental impacts;

biodiversity;

landscape;

noise;

traffic;

energy policy;

climate-change considerations;

energy security;

grid infrastructure;

public health where legally relevant;

heritage;

cumulative environmental effects.

The authority does not necessarily have to give every consideration equal weight. The important point is that a legally mandatory consideration cannot simply be ignored.

4. Environmental Impact Assessment

Environmental Impact Assessment (EIA) is one of the most important areas of judicial review involving energy projects.

Where an EIA is legally required, the decision-maker must properly identify and assess the project's likely significant environmental effects.

The assessment can include effects relating to:

air quality;

water;

biodiversity;

landscape;

human health;

climate;

greenhouse-gas emissions;

cumulative effects;

indirect effects.

The significance of EIA litigation is illustrated dramatically by Finch.

5. Finch v Surrey County Council [2024] UKSC 20

UK Supreme Court

Case: R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others
Citation: [2024] UKSC 20

This is one of the most important recent authorities concerning environmental assessment and fossil-fuel development.

Surrey County Council granted planning permission for an oil-extraction project at Horse Hill. The claimant challenged the decision, arguing that the environmental assessment should have included the greenhouse-gas emissions resulting from the eventual combustion of the oil extracted from the project. (Supreme Court UK)

The Supreme Court held, by a majority, that the downstream greenhouse-gas emissions from burning the extracted oil were effects of the project for the purposes of the applicable EIA regime and therefore had to be assessed. (Supreme Court UK)

Importance of Finch

The decision demonstrates that judicial review can examine the legal scope of environmental assessment, rather than merely asking whether the planning authority reached a reasonable planning judgment.

It establishes an important principle:

Where environmental legislation requires assessment of a project's significant environmental effects, the authority must correctly identify the effects falling within the statutory assessment obligation.

The case is particularly relevant to:

oil and gas projects;

fossil-fuel infrastructure;

climate-related planning challenges;

EIA methodology;

greenhouse-gas emissions;

indirect environmental effects.

The Court also recognised the distinction between the legal obligation to assess environmental effects and the subsequent planning judgment about how those effects should be weighed against other considerations. (Supreme Court UK)

6. Climate Change as a Planning Consideration

Climate change has become increasingly important in judicial review of energy infrastructure.

Energy projects may produce:

direct greenhouse-gas emissions;

indirect emissions;

lifecycle emissions;

emissions associated with fuel consumption;

emissions avoided through renewable generation.

Courts must distinguish between two questions:

First:

Was the climate impact legally required to be considered or assessed?

Second:

What weight should the decision-maker give that consideration?

The first question can be a matter of law suitable for judicial review. The second frequently involves planning judgment and technical assessment, where courts may afford decision-makers considerable latitude.

7. Heathrow Airport Case

Another important authority is:

R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52.

Although the project concerned airport expansion rather than electricity infrastructure, the case has major significance for infrastructure planning and climate policy.

The challenge concerned the designation of the Airports National Policy Statement supporting a third runway at Heathrow. The issue included whether the Secretary of State had unlawfully failed to take the UK's commitments under the Paris Agreement into account.

The Supreme Court ultimately allowed the appeal and held that the Secretary of State had not acted unlawfully on the particular legal ground advanced. (Supreme Court UK)

Significance for energy projects

The case illustrates that courts distinguish between:

international commitments;

domestic statutory obligations;

national planning policy;

individual planning decisions.

An international climate commitment does not automatically determine the legality of every individual infrastructure decision. The legal question depends upon the statutory framework and the role assigned to the relevant policy.

8. Judicial Review of Development Consent Orders

Large energy infrastructure may constitute an NSIP under the Planning Act 2008.

Examples include certain:

electricity generating stations;

electricity networks;

offshore infrastructure;

energy storage infrastructure;

pipelines.

The DCO process contains detailed procedural and policy requirements.

Judicial review may challenge:

the examination process;

interpretation of the relevant NPS;

environmental assessment;

consultation;

consideration of alternatives;

climate impacts;

application of statutory duties;

the Secretary of State's reasoning.

9. ClientEarth v Secretary of State – Drax

An important authority is:

R (ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWCA Civ 43.

The case concerned the proposed construction and operation of two gas-fired generating units at Drax Power Station. ClientEarth challenged the Secretary of State's decision to make the DCO approving the project. (Courts and Tribunals Judiciary)

The litigation raised questions concerning:

interpretation of National Policy Statement EN-1;

the need for energy infrastructure;

greenhouse-gas emissions;

the statutory framework governing NSIPs;

the Secretary of State's approach to policy.

The case demonstrates the importance of understanding the difference between a legal requirement contained in an NPS and a matter left to the decision-maker's planning judgment.

The Court of Appeal examined whether the Secretary of State had correctly interpreted the applicable energy policy and statutory framework. (Courts and Tribunals Judiciary)

Legal significance

The Drax litigation shows that judicial review can be used to challenge the legal interpretation of national energy policy, but it does not transform the court into the primary energy-policy decision-maker.

10. Material Planning Considerations

A planning authority must consider relevant material planning considerations.

This issue is particularly important in renewable-energy projects.

Wright v Resilient Energy Severndale Ltd [2019] UKSC 53

The Supreme Court considered a challenge involving a wind turbine.

The local authority had taken into account a proposal to provide community benefits from the operation of the turbine. The planning permission was challenged because the community-benefit proposal had been treated as a material planning consideration.

The Supreme Court considered the legal principles governing material considerations in planning decisions. (Supreme Court UK)

Significance

The case illustrates that the fact that a matter is politically or socially desirable does not automatically make it a legally relevant planning consideration.

For energy projects, this can be important where developers offer:

community funds;

local employment;

financial contributions;

infrastructure investment;

local economic benefits.

The authority must distinguish between considerations that are legally material and those that are merely attractive or desirable.

11. Irrationality and Unreasonableness

A planning approval can also be challenged on the basis that the decision was irrational.

However, this is a demanding ground.

The court generally does not ask:

"Would the judge have granted planning permission?"

Instead, the question is whether the decision was outside the range of lawful decision-making.

This distinction is especially important for energy projects because planning decisions often involve complex balancing exercises.

For example, an authority might need to balance:

Energy benefits

against

Environmental impacts

and

Landscape, biodiversity, community and infrastructure concerns.

The court will generally be reluctant to interfere merely because another balance could reasonably have been reached.

12. Procedural Fairness

Planning decisions can also be challenged where legally required procedures have not been followed.

Possible issues include:

inadequate consultation;

failure to disclose relevant material;

procedural unfairness;

failure to allow affected parties to participate where required;

failure to comply with statutory consultation requirements;

failure to consider representations.

This can be particularly significant for large energy projects because they frequently attract substantial public participation.

13. Reasons for Planning Decisions

In appropriate circumstances, the decision-maker must provide sufficient reasoning to demonstrate that the relevant statutory and planning framework has been properly applied.

For example, a decision concerning a major renewable-energy project may need to demonstrate that the authority understood:

the project's environmental effects;

applicable planning policies;

relevant climate policy;

objections;

benefits of renewable generation;

landscape or biodiversity impacts.

The court is not looking for an essay. The reasons must, however, be sufficient to show the basis upon which the decision was reached.

14. Judicial Deference in Technical Energy Decisions

Energy projects involve considerable technical complexity.

Examples include:

grid stability;

electricity-system modelling;

transmission capacity;

battery storage;

electricity demand;

emissions modelling;

energy-security assessments;

system reliability.

Courts therefore recognise that certain decisions involve specialised expertise and policy judgment.

Judicial review remains available, but courts ordinarily distinguish between:

Questions of law

The court decides these authoritatively.

Questions of fact

The court may intervene where factual findings are legally flawed.

Technical and policy judgments

The decision-maker may have considerable discretion.

This principle prevents judicial review from becoming an appeal on the merits.

15. The Special Importance of National Policy Statements

For major energy infrastructure, NPSs can have substantial legal importance.

An NPS can establish:

the national need for infrastructure;

policy priorities;

environmental expectations;

climate considerations;

technology-specific policy;

assessment requirements.

However, the existence of an NPS does not make an individual project immune from judicial review.

The decision-maker must still apply the statutory framework correctly.

The Heathrow litigation confirms the distinction between the national policy framework and the subsequent project-consent process. (Supreme Court UK)

16. Multi-Stage Planning Consent and Environmental Assessment

Another important issue is whether environmental assessment can be required at a later stage of a multi-stage planning process.

The Supreme Court's decision in C G Fry & Son Ltd v Secretary of State [2025] UKSC discusses circumstances in which environmental assessment may still be required at a later stage, including where significant environmental effects were not previously assessed. (Supreme Court UK)

This principle can have implications for energy projects developed through multiple stages, particularly where:

outline permission is granted first;

detailed design occurs later;

reserved matters are subsequently approved;

new environmental effects become apparent.

The existence of an earlier approval does not necessarily eliminate all later environmental-assessment obligations.

17. Remedies

Where a court finds a planning approval unlawful, possible remedies include:

Quashing order

The court can quash the unlawful decision.

The matter may then return to the decision-maker for lawful reconsideration.

Declaration

The court may declare the legal position.

Prohibitory or mandatory orders

In appropriate circumstances, the court can prevent unlawful action or require a public authority to perform a legal duty.

Suspension or other tailored relief

The court can sometimes structure relief to avoid unnecessary disruption, depending on the statutory framework and circumstances.

Importantly, judicial review does not necessarily mean that the energy project can never proceed. A quashed decision may be reconsidered through a lawful process.

18. Key Case Laws

19. Relationship Between Judicial Review and Energy Transition

Judicial review has become increasingly significant as governments attempt to expand renewable generation while simultaneously addressing:

climate change;

energy security;

electricity affordability;

grid expansion;

planning constraints;

biodiversity;

local opposition;

fossil-fuel dependency.

The courts' role is not to design the energy transition. Instead, judicial review ensures that public authorities implement the transition according to law.

The distinction is important:

Policy question:
Should the country build more renewable generation?

Planning question:
Should this particular project receive consent?

Legal question:
Did the authority make that decision according to the statutory and planning framework?

Judicial review primarily addresses the third question.

20. Conclusion

Judicial review of planning approvals for energy projects represents a critical intersection between planning law, administrative law, environmental law, climate law and energy regulation.

The principal grounds of challenge include illegality, procedural unfairness, failure to consider relevant considerations, irrationality, inadequate environmental assessment, misinterpretation of planning policy and failure to comply with statutory duties.

The modern importance of the jurisdiction is particularly evident in Finch, where the Supreme Court treated downstream greenhouse-gas emissions from an oil-extraction project as falling within the applicable EIA obligation. (Supreme Court UK)

At the same time, Heathrow demonstrates the importance of distinguishing between international climate commitments, domestic legal obligations and the particular statutory framework governing infrastructure policy. (Supreme Court UK) ClientEarth/Drax illustrates how judicial review can scrutinise the interpretation and application of national energy policy in the DCO context. (Courts and Tribunals Judiciary) Wright further demonstrates that the benefits associated with renewable-energy projects must be treated according to established principles concerning material planning considerations. (Supreme Court UK)

Overall, judicial review provides a mechanism for ensuring that energy infrastructure development is legally accountable, procedurally proper and environmentally informed, while leaving primary policy and planning judgments, where lawfully made, to the institutions entrusted with them.