Suffolk Energy Action Solutions SPV Limited, R (on the application of) v The Secretary of State for Business, Energy and Industrial Strategy

In a challenge to development consent orders, the adequacy of an environmental assessment and the extent of inquiry are matters for the decision-maker, subject to review on Wednesbury grounds. A claimant alleging that arrangements with landowners suppressed relevant evidence must provide an arguable evidential basis for that contention. Mere characterisation of lawful, commonplace land-acquisition negotiations as having a chilling effect is insufficient. Where an inquisitorial examination has extensive powers to obtain information, inspect land and test evidence, and the decision-maker has addressed the alleged deficiency and concluded that sufficient information exists, the court will not intervene without evidence of irrationality, unfairness or failure to consider a legally material matter.

The claimant sought permission to apply for judicial review of two development consent orders made under the Planning Act 2008 for offshore wind farms. It alleged that arrangements described as heads of terms or non-disclosure agreements deterred affected landowners from participating in the examination and thereby distorted the environmental and planning information available to the examining authority and the Secretary of State.

Permission had previously been refused on the papers. The renewed application raised ten grounds concerning environmental assessment, the adequacy of the information before the decision-maker, procedural fairness, reasons, compulsory acquisition and the alleged chilling effect.

1. The renewed application for permission was dismissed. The ten grounds were unarguable.
2. Under regulation 4(2) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017, development consent cannot be granted unless an environmental impact assessment has been carried out. The adequacy of that assessment is a matter of judgment for the decision-maker, reviewable only on Wednesbury grounds. The same standard applies to the extent and intensity of the inquiry and to the weight given to material considerations.
3. The examining authority’s statutory task was inquisitorial. It had wide powers to request representations and information, ask questions, require further material, test oral evidence and inspect land. The examination had been extensive, included numerous hearings and representations, and the authority had concluded that it possessed sufficient information. The Secretary of State reached the same conclusion.
4. The heads of terms were non-binding and did not prevent landowners from submitting information, permitting access to land or exercising their statutory right to object. Agreements of this type were lawful and commonplace. The claimant’s alleged chilling effect was speculative. No evidence demonstrated that relevant information had been withheld because of the arrangements or that access had been requested and refused.
5. The decision letter had to be read fairly and as a whole. Although the issue appeared within the compulsory-acquisition section, the public-interest case for compulsory acquisition necessarily involved the wider planning merits, including environmental matters. Reliance on officials to investigate and advise the Secretary of State did not make the decision unlawful; R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport was distinguishable.
6. The court found no arguable unfairness, irrational failure to investigate, failure to consider material matters or inadequacy of reasons. It was unnecessary to determine the submissions concerning section 31 of the Senior Courts Act 1981.

Permission to apply for judicial review was refused on the papers by Lang J on 1 July 2022. The renewed application was dismissed by the High Court (Planning Court).