Samuel Smith Old Brewery (Tadcaster), R (on the application of) v National Grid Electricity Transmission Plc & Anor

In judicial review of a consent under section 37 of the Electricity Act 1989, the court reviews legality, not planning merits. Where section 90(2) of the Town and Country Planning Act 1990 directs that planning permission is deemed to be granted, section 38(6) of the Planning and Compulsory Purchase Act 2004 does not require a separate development-plan determination. Under PPG2, an engineering operation which does not maintain Green Belt openness is inappropriate development. The resulting presumption may be overcome where very special circumstances clearly outweigh the harm. Questions of planning judgment, including the weight given to visual harm, cost, urgency and delay, are for the Secretary of State unless legally irrational or inadequately reasoned.

Samuel Smith Old Brewery (Tadcaster) sought judicial review of the Secretary of State’s decision granting National Grid consent under section 37 of the Electricity Act 1989 for a new overhead electricity line and associated wayleaves near Tadcaster. The proposed route crossed Green Belt land. Inspectors had recommended refusal because the benefits did not clearly outweigh the harm, but the Secretary of State granted consent, relying on the urgent need to reinforce the network, the additional cost and uncertainty of underground alternatives, and maintenance considerations.

The challenge alleged errors concerning section 38(6) of the Planning and Compulsory Purchase Act 2004, PPG2, the inspectors’ findings, urgency, costs, wayleaves, Convention rights and environmental impact assessment. The central question was whether the decision was unlawful, irrational, inadequately reasoned or procedurally unfair.

Claim dismissed. The Secretary of State’s decision was legally valid, although the court did not endorse its planning merits.

1. Section 38(6) of the Planning and Compulsory Purchase Act 2004 was not engaged. The section 37 decision was made under the Electricity Act 1989, not under the planning Acts. A direction under section 90(2) of the Town and Country Planning Act 1990 dispensed with a separate planning determination. Section 90(3) applied to the deemed permission, not to the process by which the direction was made.
2. Under PPG2, an engineering operation which failed to maintain Green Belt openness was inappropriate development. It was unnecessary to decide whether the pylons were buildings. The Secretary of State had to ask whether very special circumstances clearly outweighed the harm. That was a planning judgment.
3. The Secretary of State was entitled to accept the inspectors’ findings but attach less weight to the harm. The reasons, read as a whole and straightforwardly, were intelligible and adequate. Disagreement with the evaluative weight given to planning factors did not establish an error of law.
4. The accepted urgency of reinforcing the Ferrybridge Ring, the uncertainty and likely delay involved in alternative consents, the additional cost of undergrounding and maintenance difficulties were relevant considerations. Historic departmental delay did not require the Secretary of State to discount the public interest as it stood when the decision was made.
5. The treatment of the Knaresborough substation costs was open to the Secretary of State as part of the overall planning balance. The existing substation was part of the environmental baseline and was not part of the development for which consent was sought.
6. The wayleaves challenge failed. The section 37 balancing exercise provided a compelling public-interest basis for the associated wayleaves. The Article 6 and Article 1 of Protocol 1 arguments did not require a different result.

Costs were to be agreed or determined by the court.