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

Non-objection clauses used when land is acquired for a planning scheme are not inherently unlawful. Their use is permissible where the planning process remains capable of providing the decision-maker with sufficient information for an informed and lawful decision. Whether such clauses have impermissibly distorted the planning process is fact-specific.

That assessment must account for the inquisitorial nature of the process and statutory requirements governing the decision. A decision-maker may reasonably conclude that the necessary information is available where affected persons had an opportunity to participate, relevant issues were explored, and the material as a whole supports that conclusion.

Suffolk Energy Action Solutions SPV Ltd challenged the Secretary of State’s decisions to make Development Consent Orders for two offshore windfarms and associated onshore works. The orders authorised compulsory acquisition affecting numerous landowners.

The challenge concerned non-objection and confidentiality provisions in negotiated land agreements. The appellant argued that those provisions had stifled or neutralised landowners’ objections and distorted the statutory Examination, and that the Secretary of State had failed to address that complaint lawfully. Holgate J dismissed the judicial review claim: [2023] EWHC 1796 (Admin). The central issues on appeal were whether the clauses were legitimate and whether the Secretary of State had properly addressed their alleged effect.

1. Appeal dismissed. Holgate J was right to dismiss the claim for judicial review.
2. The use of non-objection clauses in this context was legitimate. Such clauses may be used where a party has obtained, or is proposing to obtain, an interest in land, including where the land forms part of a wider scheme. The planning process is inquisitorial, and the decision-maker must ensure that sufficient information is available to make an informed and lawful decision. Whether a clause has actually caused insufficient information or impermissibly distorted the process is fact-specific.
3. The same analysis applies to confidentiality provisions. In general, the inquisitorial process, the Planning Act 2008 and the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 should prevent such clauses from depriving the decision-maker of relevant planning and environmental considerations, although the outcome depends on the facts.
4. The Heads of Terms were not contractually binding. The formal Option Agreements, unlike the Heads of Terms, made the non-objection obligation legally binding. The evidence showed that 39 of the 55 affected private landowners who had signed Heads of Terms made objections which were maintained through the Examination.
5. The ExA’s finding that all affected persons had the opportunity to be heard was permissible. The Secretary of State separately considered the complaint and reasonably concluded that all relevant issues had been raised and explored and that he had the necessary information to decide the applications. That conclusion was open to him on the material before him.
6. The court therefore rejected both grounds of challenge: the clauses were legitimate in the circumstances, and the Secretary of State had properly addressed their alleged effect.

• Court of Appeal (Civil Division) — Appeal dismissed; the order dismissing the judicial review claim was upheld.
• High Court of Justice, King’s Bench Division, Planning Court — Holgate J dismissed the claim for judicial review: [2023] EWHC 1796 (Admin).