Jones, R (on the application of) v The Secretary of State for Business, Energy and Industrial Strategy

When determining an application for development consent, the Secretary of State must apply the relevant national policy statements as a whole. For designated heritage assets, the decision-maker must assess significance and harm, apply any heightened test for substantial harm, and weigh identified harm against the public benefits of the development. Where policy requires consideration of alternatives to an overhead electricity line, the decision-maker may consider whether an alternative would justify refusing the proposal, even if the alternative itself is not part of the application. Reasons are adequate if, read fairly and as a whole, they explain the conclusions on the principal important controversial issues. Specific reasons are not required for an issue that was neither principal nor genuinely controversial.

The claimant sought judicial review of the North Wales Wind Farms Connection Order 2016, which granted development consent for a 132 kV overhead electricity line. The line passed near Berain Farm, containing Grade II* listed buildings. The claimant challenged the decision on the application of national policy concerning heritage assets and landscape impacts, the consideration of partial undergrounding, the adequacy of reasons, and the permanent extinguishment of private rights under article 23 of the Order.

The Secretary of State had adopted the findings and conclusions of an examination panel. The central questions were whether the relevant policies had been properly applied, whether adequate information was available to assess partial undergrounding, and whether the decision and Order were adequately reasoned.

1. Heritage assets. The claim was dismissed. Read fairly and as a whole, the panel’s report, adopted by the Secretary of State, correctly applied EN-1. It identified the significance of Berain, assessed the effect of the proposed line on its setting, and concluded that the harm was moderate but not substantial. It then weighed the identified harm against the benefits of the development. The decision-maker therefore did not treat substantial harm as the only relevant criterion. The duty under regulation 3 of the Infrastructure Planning (Decisions) Regulations 2010 was also complied with.
2. Alternative undergrounding. EN-5 required serious landscape and visual concerns to be balanced against need, costs and feasible alternatives. The panel found serious concerns and considered the costs and feasibility of undergrounding. Although partial undergrounding was not an alternative for which consent could itself be granted because it had not been assessed in the environmental statement or included in the application, the panel could consider whether it made the proposed wholly overhead development unacceptable. It expressly considered undergrounding near Berain and concluded that its benefits would not clearly outweigh the additional costs.
3. Reasons. The decision letter and adopted report gave adequate and intelligible reasons under section 116 of the Planning Act 2008. They enabled the reader to understand the conclusions on the principal important controversial issues.
4. Article 23. The power to suspend or extinguish private rights in limited circumstances was capable of being lawful. Sections 120 and Schedule 5 of the Planning Act 2008 contemplated provisions of that kind. The development consent’s 30-year duration did not itself make permanent extinguishment unlawful or disproportionate. The panel had considered the issue, and it was not a principal important controversial issue requiring specific reasons.
5. The claim for judicial review was dismissed.

The judgment was a first-instance judicial review of the Secretary of State’s decision dated 28 July 2016 to make the Order. The Secretary of State had adopted the examination panel’s report and recommendations.