AQUIND Limited, R (on the application of) v Secretary of State for Business, Energy and Industrial Strategy

A decision-maker determining an application under the Planning Act 2008 must follow the statutory structure governing national policy statements. Where an energy national policy statement creates a presumption in favour of consent and specifies how alternatives are to be assessed, the decision-maker must apply those provisions or explain any departure.

A decision-maker cannot refuse consent on the speculative possibility that an alternative may be feasible without making reasonable inquiries into its feasibility and viability, particularly where the proposed development has strong policy support and significant public benefits. The duty to give reasons is necessarily defective where the decision-maker has failed to apply the statutory and policy framework.

AQUIND Limited sought judicial review of the Secretary of State’s refusal of development consent for the UK and UK marine elements of a major electricity interconnector. The Examining Authority had recommended consent, finding that the project’s need and benefits outweighed its adverse effects.

The Secretary of State refused consent on the sole ground that the promoter had failed adequately to reconsider Mannington substation as an alternative connection point after the refusal of the Navitus Bay offshore windfarm. The central issues were whether the decision involved factual error, failed to take account of relevant evidence, complied with sections 104 and 116 of the Planning Act 2008, complied with energy policy, breached the duty to make reasonable inquiries, was procedurally unfair, and gave adequate reasons.

The claim succeeded on Grounds 1(b), 2, 3 and 4. Grounds 1(a), 5 and 6 did not add independent grounds of challenge.

1. Material evidence. The Secretary of State’s reference to the Feasibility Study, rather than the Supplementary Environmental Statement, was a mere referencing error. However, the decision failed to engage with National Grid’s independent evidence that substations west of Lovedean, including Mannington, would require additional network reinforcements, with possible increased environmental effects and consumer costs. That omission concerned a crucial issue and made Ground 1(b) out.
2. Statutory and policy framework. Section 104 of the Planning Act 2008 imposed a structured decision-making process. The Secretary of State had to determine whether the application accorded with the relevant national policy statement under section 104(3), before considering any exception under section 104(7). EN-1 paragraph 4.1.2 created a presumption in favour of granting consent for energy NSIPs. Paragraph 4.4.3 required engagement with the specified approach to alternatives, including whether an alternative had a realistic prospect of delivering the same capacity in the same timescale and whether it was commercially viable or physically suitable. The decision letter did not address those matters or explain any departure from policy.
3. Duty to inquire. Applying Tameside and the subsequent authorities, the Secretary of State acted irrationally in refusing consent without obtaining further information about Mannington’s feasibility and viability. The issue was whether Mannington was a feasible alternative at the date of decision, not simply whether the promoter had acted reasonably in 2016. The speculative nature of the alternative, the strong public benefits of the project, the policy support, and National Grid’s evidence made further inquiries necessary.
4. Procedural fairness and reasons. The Third Information Request gave the promoter a sufficient opportunity to address Mannington. The complaint was therefore substantive rather than procedurally unfair. The reasons challenge added nothing independent because the errors in applying section 104 and EN-1 necessarily meant that the decision letter did not adequately explain the decision.

This was a first-instance judicial review. Permission was granted on all grounds by Lang J. The Administrative Court allowed the substantive challenge to the Secretary of State’s decision on Grounds 1(b), 2, 3 and 4.