Substation Action Save East Suffolk Limited, R (on the application of) v Secretary of State for Business, Energy and Industrial Strategy

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.

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. The claim for judicial review was dismissed on all grounds.