Edmund John Fordham, R (on the application of) v Secretary of State for Energy and Net Zero

In determining development consent, the Secretary of State is not ordinarily required to resolve disputed technical questions about whether a proposed energy project falls within separate regulatory regimes. It is rational to leave those questions to the competent specialist regulators where fuller information will emerge during detailed design, provided the planning consent does not disable those regimes and contains effective requirements to facilitate later regulation.

Consultation duties are not breached merely because the Secretary of State relies on information already provided by the competent authority. The existence of a dispute about the applicability of the Control Major Accident and Hazards Regulations 2015 or the Planning Hazardous Substances Regulations 2015 does not itself require the planning decision-maker to determine the dispute.

The claimant, a registered interested party during the examination of the Sunnica Energy Farm proposal, challenged the Secretary of State’s decision to make the Sunnica Energy Farm Order 2024. The project included a large battery energy storage system.

Permission for judicial review had been refused on the papers. On renewal, the claimant pursued one ground under section 118 of the Planning Act 2008. He argued that the Secretary of State had unlawfully failed to determine whether the project was subject to the COMAH regime or required hazardous substances consent, and had failed to comply with regulation 26 of the Planning Hazardous Substances Regulations 2015.

1. Application refused. The renewed application for permission to apply for judicial review was not reasonably arguable.
2. The Secretary of State’s policy in the National Policy Statement for Energy required appropriate engagement with the competent authority where infrastructure was subject to the COMAH regime. It did not require him necessarily to determine, before granting development consent, whether the particular project was subject to COMAH or required hazardous substances consent.
3. It was rational to defer those questions to the detailed design stage. The COMAH and hazardous substances regimes were freestanding schemes administered by technically competent regulators. Requirements 6 and 7 of the Sunnica Energy Farm Order 2024 ensured that detailed design and fire-safety arrangements would remain subject to regulation and did not disable the operation of those regimes.
4. The approach was consistent with Gateshead Metropolitan Borough Council v Secretary of State for the Environment and the analysis adopted in R (An Taisce (the National Trust for Ireland)) v Secretary of State for Energy and Climate Change. Planning and pollution-control regimes may overlap; where the specialist regulatory regime remains capable of addressing the concern, the planning decision-maker may leave the matter to that regime.
5. Regulation 26(2)(b) added nothing. Having rationally decided not to resolve the regulatory classification issue, the Secretary of State was entitled to rely on the information supplied by the Health and Safety Executive during the examination and was not required to seek further information.

First-instance renewal of an application for permission to apply for judicial review. Permission had previously been refused on the papers by Lang J by an order sealed on 3 October 2024.