Suffolk Energy Action Solutions SPV Limited, R (on the application of) v The Secretary of State for Energy Security and Net Zero

In judicial review of development consent orders for nationally significant infrastructure, the duty to make inquiries requires only reasonable steps within the matters the statutory scheme makes relevant. A matter outside the mandatory considerations triggers intervention only if it was so important or central that its omission was irrational. The adequacy of environmental information is primarily for the decision-maker, subject to Wednesbury review; “full information” means as much information as can reasonably be obtained, not exhaustive knowledge. A claimed chilling effect on landowners’ contributions does not create a freestanding ground where no procedural unfairness is alleged. The claimant must identify the serious complaint, missing information and inquiry required. The claim was dismissed.

The claimant sought judicial review under the Planning Act 2008 of two development consent orders authorising offshore wind farms and associated onshore works, including compulsory acquisition of land. It alleged that agreements between the developers and affected landowners discouraged objections and suppressed environmental information. The Secretary of State and the Examining Panel treated the complaint principally as one of procedural unfairness and concluded that affected persons had opportunities to participate and that sufficient information was available. The claimant ultimately abandoned its unfairness case and argued instead that the Secretary of State had failed to investigate the alleged practical distortion of the evidence, failed to secure a lawful environmental impact assessment, failed to consider an obviously material factor, and failed to give adequate reasons.

Claim dismissed. The claimant’s grounds did not establish any public-law error in the making of the development consent orders.

1. Examination and judicial review. The examination under the Planning Act 2008 was inquisitorial rather than adversarial. The Panel controlled the process and could require further information. The court could determine facts relevant to an alleged legal flaw, but could not substitute its planning judgment for that of the decision-maker.
2. Tameside duty. The duty to make inquiries required only reasonable steps to obtain information relevant to matters which the legislation required the Secretary of State to consider. A matter outside the mandatory considerations could justify intervention only if it was so important or central that its absence rendered the decision irrational. The claimant had to identify the serious complaint, the missing material and the essential inquiry. It could not require the court to assume that those matters existed.
3. Environmental information. The adequacy of an environmental statement and of the environmental information gathered during the process was a matter for the decision-maker, subject to Wednesbury review. The requirement for full information meant information sufficient to meet the statutory scheme and as much knowledge as could reasonably be obtained, not exhaustive information. The Panel and Secretary of State had considered the environmental material and were entitled to regard it as sufficient.
4. Alleged chilling effect. The expression had no independent legal operation in this case. The claimant alleged no procedural unfairness or interference with a protected right. The evidential material did not show that the agreements prevented affected persons from objecting or supplying information. The Heads of Terms were subject to contract, non-exhaustive and unsupported by consideration until a formal option agreement was exchanged. Their confidentiality provisions concerned the contents of the negotiations and did not prevent objections or adverse information being provided.
5. Decision and reasons. The Secretary of State considered the complaint and the developers’ response as an allegation concerning participation and fairness. His conclusion that all relevant issues had been explored and that he had sufficient information addressed the complaint as made. The alleged practical-impact factor was not mandatory and was not obviously material. The presumption that the Secretary of State had read documents to which he was expressly referred was not rebutted. Grounds 1 to 4 therefore failed, and the application was dismissed.

This was a first-instance judicial review. Permission had earlier been refused on the papers and at a renewal hearing, but was granted by Warby LJ on 31 January 2023 for a full hearing. No earlier merits judgment is stated.