Pearce v Secretary of State for Business Energy And Industrial Strategy

Under the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009, a decision-maker must have sufficient environmental information to evaluate and weigh likely significant environmental effects before granting development consent.

For separate but closely linked projects, cumulative effects must be assessed in the first decision so far as reasonably possible. A bare assertion that information about the later project is limited cannot justify deferral where the projects share infrastructure, the information is materially comparable and an assessment has been provided. The decision-maker must give adequate reasons and consider obtaining further information. The consent order was quashed.

The claimant sought judicial review under section 118 of the Planning Act 2008 of the defendant’s decision on 1 July 2020 to make the North Vanguard Offshore Wind Farm Order (SI 2020 No. 706), granting development consent to Norfolk Vanguard.

The challenge concerned the proposed co-location at Necton of infrastructure for the Vanguard and Norfolk Boreas offshore wind projects. The claimant argued that the defendant had unlawfully deferred consideration of their cumulative landscape and visual impacts, had acted irrationally and had given inadequate reasons. The issues were whether the 2009 Regulations required the cumulative effects to be evaluated in the Vanguard decision and, if so, whether relief should be withheld.

1. Outcome. Grounds 1 and 2 succeeded. The decision letter and the North Vanguard Offshore Wind Farm Order (SI 2020 No. 706) were quashed.
2. Regulation 3(2) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 does not require every item of environmental information to be weighed. It does require the decision-maker, before granting consent, to have sufficient information to evaluate and weigh effects regarded as likely to be significant, together with relevant mitigation. If the information is inadequate, the decision-maker may require further information or refuse consent under regulation 17.
3. Significant effects may be deferred to a later approval only in limited circumstances. The significant effects of a project must first be assessed within an adequately defined Rochdale envelope. The principles in R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env. L.R. 406, R v Rochdale Metropolitan Borough Council ex parte Tew [2000] Env. L.R. 1 and R v Cornwall County Council ex parte Hardy [2001] Env. L.R. 473 supported that approach.
4. Vanguard and Boreas were separate projects, but they were closely linked. They involved co-location, shared infrastructure, a common grid connection and enabling works for Boreas in the Vanguard order. Applying R (Larkfleet Limited) v South Kesteven District Council [2016] Env. L.R. 76, the cumulative effects had to be assessed in the Vanguard decision so far as reasonably possible. R (Littlewood) v Bassetlaw District Council [2009] Env. L.R. 407 was distinguishable because the later development there was inchoate and lacked adequate information.
5. The deferral was irrational. The information about Boreas was materially comparable to that used to assess Vanguard alone. The defendant gave no rational explanation for treating it differently, did not consider seeking further information and failed to address the strategic co-location and precedent effects of approving Vanguard first. The reasoning could not be repaired by submissions made after the decision.
6. The reasons were also inadequate. The cumulative impacts were an important and controversial issue, yet the decision merely referred to limited information without explaining what was lacking or why evaluation could not be undertaken.
7. The high threshold in section 31(2A) of the Senior Courts Act 1981 was not met. The court could not infer the missing environmental evaluation or enter the forbidden territory of making the planning judgment itself. The quashing order therefore followed. The Infrastructure Planning (Examination Procedure) Rules 2010 provide minimum procedural requirements and do not exclude additional steps required by procedural fairness.