The interconnector project is a new 2,000MW subsea and underground bi-directional electric power transmission link between the south coast of England and Normandy in France. It would have the capacity to transmit up to 16,000,000MWh of electricity per annum, which equates to approximately 5% and 3% of the total consumption of the UK and France respectively. 

The Examining Authority recommended approval of the application, finding compliance with National Policy Statement EN-1 and that “overall, the need case for the Proposed Development strongly outweighs the identified disbenefits”. The Secretary of State refused consent on the basis that the promoter had failed to properly consider an alternative substation location at Mannington after the Navitus Bay offshore windfarm, which was to connect into Mannington, had been refused consent.

The Judge held that four grounds of challenge were made out.

First, the Secretary of State failed to take proper account of material evidence as to the feasibility of Mannington as a connection point. In particular, the Secretary of State failed to show that he had taken into consideration the reasons for rejecting Mannington that had been put forward by National Grid. 

Secondly, the Secretary of State failed to comply with the approach to decision-making mandated by section 104 of the Planning Act 2008. Thirdly, the Secretary of State failed to apply policy in NPS EN-1. The Judge dealt with these two grounds together. The Judge observed that Part 4 of EN-1 sets out a careful and highly structured approach to the assessment of projects, with the starting point being a presumption in favour of granting consent for energy projects to which EN-1 applies. Part 4.4 further contains “carefully crafted policy to guide the decision maker as to how to approach alternatives”, and “[t]he policy requires a decision maker to engage with 4.4.3 if weight is going to be placed on potential alternatives”. If the Secretary of State was to rely on an alleged failure to properly consider an alternative, it was necessary for him to apply the policy approach in EN-1 4.4.3, or explain why he intended to depart from the policy. Further, applying section 104(3) of the 2008 Act requires consideration of whether the proposal is “in accordance with” the NPS, which has a particular status in the decision-making process and “is not simply another policy document which is weighed in the planning balance and to which the [Secretary of State] can give more or less weight”. The Judge found that these requirements of statute and policy had not been satisfied in the present case.

Fourthly, the Secretary of State failed to take reasonable steps to inform himself as to the feasibility of Mannington, in breach of the duty under Secretary of State for Education v Tameside MBC [1977] AC 1014. The level of public benefit, the policy support in the NPS, National Grid’s evidence as to the difficulties which Mannington presented all made it irrational for the Secretary of State not to have made further inquiries. 

Further grounds alleging a material error of fact, procedural unfairness, and a failure to give adequate reasons did not succeed.

The judgment is likely to be of significant interest to those involved in the infrastructure planning process, in particular due to the Judge’s discussion of the legal and policy framework under section 104 of the 2008 Act and NPS EN-1 and the relevance of alternatives to a scheme for which development consent is sought. 

Simon Bird KC and Hugh Flanagan appeared on behalf of the Claimant. Mark Westmoreland Smith appeared on behalf of the Secretary of State, led by James Strachan KC.