Dudgeon Offshore Wind Ltd v Secretary of State for Communities & Local Government & Ors

In a planning decision, alternative sites may be relevant, but their relevance and weight depend on the nature and circumstances of the proposal. A decision-maker who takes alternative sites into account must give affected parties a fair opportunity to address that issue. A failure to do so may amount to substantial prejudice under Town and Country Planning Act 1990, or an unlawful departure from natural justice. A development plan need not be recited exhaustively where the decision shows that its substance was understood and applied. Failure to mention a policy is not necessarily material where its substance is reproduced in another policy that was considered. Renewable-energy policies may create strong presumptive support, but that support can be outweighed by significant environmental harm and other material considerations.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 a decision by the Secretaries of State dismissing its appeal against refusal of planning permission for an electricity substation required to connect an offshore wind farm to the National Grid.

The challenge alleged procedural unfairness because the Inspector had said that alternative sites were not in issue, but later treated the possibility of another acceptable site as weighing against permission. It also alleged failures to identify and apply the development plan, including regional and local renewable-energy policies, and failure to give those policies presumptive weight.

1. Ground 1 succeeded. The decision letter and Inspector’s report treated the possibility of locating an acceptable substation elsewhere as a reason against granting permission at the proposed site. Alternative sites can be relevant in several ways: because an environmental statement must address them; because an alternative may militate against permission; or because the absence of alternatives may support permission. Their relevance is fact-sensitive and is not confined to proving that the proposed site is uniquely suitable. ([44]-[46])
2. The Inspector had told the parties that alternative sites would not be taken into account. Having nevertheless relied on that issue, the decision-makers denied the claimant a proper opportunity to make representations. The Inspector’s later witness evidence could not supplement or clarify the reasoning in his report. ([47]-[48])
3. For section 288 purposes, deprivation of an opportunity to address a matter which the decision-maker takes into account ordinarily constitutes substantial prejudice unless the breach is merely technical or could not possibly have made a difference. It is unnecessary to show that the claimant would have succeeded on the point. Natural justice may also engage the statutory jurisdictional limb. ([49]-[53])
4. Grounds 2–5 would have failed. The development plan comprised the East of England Plan and the Core Strategy. Although the Inspector should have identified the regional plan expressly, the reasoning showed that he understood the strong policy support for renewable energy and the qualification permitting refusal where significant environmental harm was not avoided or adequately mitigated. The failure to mention ENG 2 and CP 12 was not material because their substance was reflected in DC 15. ([55]-[64])
5. The decision was quashed for procedural unfairness.