Redcar and Cleveland Borough Council, R (on the application of) v EDF Energy (Northern Offshore Wind) Ltd

A generating station for the purposes of section 36 of the Electricity Act 1989 is the place where electricity is generated. In an offshore wind-farm project, the turbines may constitute the generating station even though cables and an onshore substation are needed to transmit electricity to the grid.

Where objections have been received, the Secretary of State must consider them and all other material considerations when deciding whether a public inquiry is appropriate. The weight given to objections is for the decision-maker. General advantages of inquiries need not be rehearsed, and a consideration is not necessarily mandatory merely because it may be taken into account.

The claimant challenged the Secretary of State’s consent under section 36 of the Electricity Act 1989 for an offshore wind farm near Redcar. The challenge alleged that the consent was invalid because it covered only the offshore elements of a wider generating project, that the Secretary of State unlawfully failed to hold a public inquiry, and that he acted irrationally by failing to take account of a departmental case officer’s personal view of the visual impact.

The claim was heard as a rolled-up application for permission and substantive judicial review. The central issues were the statutory meaning of a generating station, the scope of the duty under Schedule 8 paragraph 3(2), the alleged irrationality, and the effect of delay.

1. Permission and substantive outcome. Permission to apply for judicial review was granted, but the substantive application was dismissed. The claimant was ordered to pay the Secretary of State’s agreed costs of £25,000 and the interested party’s agreed costs of £22,500.
2. Meaning of generating station. The statutory scheme distinguishes generation from transmission and distribution. Electricity is generated at the place where the generating activity occurs. Sections 36A and 104 of the Electricity Act 1989, as amended by the Energy Act 2004, confirm that a generating station may be wholly offshore. Ancillary facilities may be included in a section 36 application, depending on the circumstances, but the offshore turbines were themselves a generating station. The consent was therefore not invalid merely because the onshore cables and substation were dealt with separately.
3. Public inquiry. Under Schedule 8 paragraph 3(2), the Secretary of State had to consider the objections and all other material considerations in deciding whether an inquiry was appropriate. The decision letter showed that he considered the objections, environmental material, European sites and the adequacy of the Environmental Statement. The claimant had identified no additional material consideration before the decision. It was for the Secretary of State to determine the weight of the objections, and he was not required to restate general advantages of a public inquiry.
4. The Article 6 authorities concerning inquiries were distinguishable. The present case did not involve a determination of the claimant’s civil rights, and conjectural effects on property values did not engage Article 6 or Article 1 of Protocol 1. The use of the word “justification” instead of “appropriateness” in parts of the decision letter was semantic and did not impose an unlawful burden.
5. Irrationality and delay. The Secretary of State was entitled to present the Department’s considered advice rather than an official’s earlier personal and impressionistic view. The report accurately described the significant visual impact and gave Ministers the relevant material. The challenge therefore failed. The claim was not filed promptly, and that delay would independently have justified withholding relief on the procedural grounds, although it would not have defeated a successful challenge to the validity of the consent itself.

This was a first-instance decision. No appellate decision is stated in the judgment.