Summary
In determining development-consent applications, the decision-maker must apply the relevant national policy statements as a whole and may exercise planning judgment where policy and guidance do not prescribe a particular method. The sequential flood-risk approach must take account of surface-water risk, but it does not invariably require proof that no site with lower surface-water risk is reasonably available. A statutory duty to have regard to heritage preservation is distinct from the stronger duty to have special regard under the Planning (Listed Buildings and Conservation Areas) Act 1990. Cumulative environmental effects may be assessed later where proposed future projects are too uncertain for a reliable assessment. Alternative sites become mandatory considerations only where required by law or policy, or where they are obviously material in the particular circumstances.
Factual background
The claimant sought judicial review under section 118 of the Planning Act 2008 of the Secretary of State’s decisions to make development consent orders for the East Anglia ONE North and East Anglia TWO offshore wind farms and associated onshore infrastructure at Friston, Suffolk.
The challenge alleged errors concerning flood risk, heritage assets, noise, generating capacity, cumulative effects and alternative sites. The Secretary of State had accepted the Examining Authority’s recommendation, subject to modifications, and concluded that the national benefits outweighed the adverse impacts.
Held
- Flood risk. NPS EN-1 and the Framework required all sources of flood risk, including surface water, to be considered in applying the sequential approach. However, neither policy nor guidance prescribed how surface-water risk had to be factored into the test. That was a matter of planning judgment. The Secretary of State was entitled to conclude that the applicants had considered surface-water risk, selected a site at low risk, and proposed mitigation. Ground 1 failed.
- Heritage assets. Regulation 3 of the Infrastructure Planning (Decisions) Regulations 2010 required the Secretary of State to have regard to the desirability of preserving listed buildings, their settings and features of special interest. It did not impose the stronger section 66(1) duty under the Planning (Listed Buildings and Conservation Areas) Act 1990 to give identified heritage harm considerable importance and weight. The reference to considerable importance and weight in the decision letter was therefore not legally required, and the medium negative weighting did not establish an error of law. Ground 2 failed.
- Noise. Paragraph 5.11.9 of NPS EN-1 permitted lesser adverse noise effects where they were mitigated and minimised. The Examining Authority had reasonably concluded that the proposed requirements and mitigation could achieve compliance. The Secretary of State was entitled to rely on that conclusion and to treat the requirements as reasonable and achievable. Switchgear noise had been considered. Ground 3 failed.
- Generating capacity. Apart from the statutory requirement that the generating station exceed the NSIP threshold in section 15(3) of the Planning Act 2008, there was no requirement to secure a particular generating capacity. The Secretary of State could give weight to the likely renewable-energy benefits without securing a fixed capacity above that threshold. Ground 4 failed.
- Cumulative effects. The potential interconnector projects were at an early stage and lacked sufficient reliable information for a satisfactory cumulative assessment. The Extension Appraisal was environmental information but not further information necessary for the environmental statement. The Secretary of State was entitled to defer effective assessment to later proceedings and gave adequate reasons. Ground 5 failed.
- Alternative sites. There was no general statutory requirement to consider alternatives. The issue depended on legal or policy requirements, or whether an alternative was obviously material. The Examining Authority and Secretary of State had considered the principal alternatives and were entitled to exclude further vague or insufficiently assessed options. The circumstances were materially different from those in Stonehenge. Ground 6 failed.
- The claim for judicial review was dismissed on all grounds.
The court’s approach to earlier authorities
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Key cases cited
23 authorities cited.
- R v Heathrow Airport Ltd [2020] UKSC 52
- Suffolk Coastal District Council v Hopkins Homes Ltd and another [2017] UKSC 37
- Tesco Stores Limited v Dundee City Council (Scotland) [2012] UKSC 13
- South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141
- Scarisbrick, R (On the Application Of) v Secretary of State for Communities and Local Government [2017] EWCA Civ 787
- Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council & Ors [2014] EWCA Civ 137
- Langley Park School for Girls v London Borough of Bromley & Anor [2009] EWCA Civ 734
- Mount Cook Land Ltd & Anor v Westminster City Council [2003] EWCA Civ 1346
- R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2021] EWHC 2161 (Admin)
- Pearce v Secretary of State for Business Energy And Industrial Strategy [2021] EWHC 326 (Admin)
- Swire, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin)
- Spurrier, R (On the Application Of) v The Secretary of State for Transport [2019] EWHC 1070 (Admin)
- Hale Bank Parish Council v Halton Borough Council [2019] EWHC 2677 (Admin)
- Howell & Ors v Stamford Renewables Ltd & Ors [2014] EWHC 3627 (Admin)
- Derbyshire Dales District Council & Anor v Secretary of State for Communities and Local Government & Anor [2009] EWHC 1729 (Admin)
- R (Larkfleet Ltd) v South Kesteven DC [2016] Env LR 76
- Commission v Ireland [2011] Env LR 25
- R (Littlewood) v Bassetlaw DC [2009] Env LR 407
- First Secretary of State v Sainsbury’s Supermarkets Ltd [2008] JPL 973
- R (Jones) v North Warwickshire Borough Council [2001] 2 PLR 59
- R v Rochdale MBC, ex parte Milne [2000] Env LR 1
- Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303
- Trust House Forte Ltd v Secretary of State (1986) 53 P & CR 293
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Cases citing this case
3 later cases · 2 positive · 1 caution
Most senior citing decisions:
- Christine Pratt & Anor, R (on the application of) v Exeter City Council [2024] EWHC 185 (Admin) distinguished
- Gabriel Clarke-Holland, R (on the application of) v Secretary of State for the Home Department & Anor [2023] EWHC 3140 (Admin) applied
- Bramley Solar Farm Residents Group v Secretary of State for Levelling Up, Housing and Communities & Ors [2023] EWHC 2842 (Admin) followed
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