Mrs Justice Lang DBE has handed down judgment in R (Substation Action Save East Suffolk Limited) v Secretary of State for Business, Energy and Industrial Strategy and Anor [2022] EWHC 3177 (Admin), dismissing the challenge to the two DCOs for East Anglia One North and East Anglia Two offshore windfarms with associated onshore and offshore development.

The Claimant’s (SASES) challenge was based on six grounds, focused on the onshore developments which formed part of the DCOs. The Judgment includes important findings as to the approach to applying the sequential test to surface water flood risk, the different approach to the weighing of heritage harm in cases under the Planning Act 2008, the lawfulness of taking account of benefits which are not ‘secured’, and the circumstances in which alternatives will be relevant.  

1. Flood risk

The Judge rejected the Claimant’s criticism of the approach taken to surface water flood risk for the purposes of complying with the sequential test.  She held it was a matter of judgment for an applicant and the decision maker as to how to apply the sequential test to flood risks from other sources (such as surface water), and that there is no further direction as to how surface water flood risk is to be factored into the sequential approach because policy (and guidance) was not prescriptive in this regard. It was not a requirement that it be positively demonstrated that there were no sites reasonably available for the development with lower surface water flood risk. In this case, there was ample evidence of the Applicants’ assessment of surface water flood risk. All sources of flood risk must be taken into account, and the Judge upheld as reasonable the Defendant’s conclusion that they had been.

2. Heritage 

The Judge held that the requirement under the Infrastructure Planning (Decisions) Regulations 2010 at Regulation 3 for the Secretary of State to “have regard” to the desirability of preservation does not engage the case law and approach that flows from the expression “have special regard” in s.66(1) Planning (Listed Buildings and Conservation Areas) Act 1990 context. 

The Judge found the different statutory wording was significant, should not be elided, and that the “have regard” duty does not include the higher duty found in s.66(1) LBCA to treat a finding of heritage harm as a consideration to which the decision maker must give “considerable importance and weight” when assessing the planning balance (as they would have to under s.66(1) LBCA). There was no lawfully required weighting that needed to be applied.

3. Noise 

The Judge held the ExA had concluded (endorsed by the Defendant) that all noise impacts could be satisfactorily mitigated, which would be effective to avoid significant adverse impacts on health and quality of life and mitigate and minimise other adverse impacts on health and quality of life within the meaning of paragraph 5.11.9 of EN-1. The Defendant had been entitled to conclude that the requirements of the DCO relating to noise levels of the substation were achievable and reasonable; that noise impacts from a proposed development will necessarily be predictions so an element of uncertainty cannot in itself be a reason to refuse consent; and there was no failure to take into account switchgear noise.

4. Generating capacity 

The Claimant argued the Defendant failed to take into account the need to secure a minimum generating capacity in the DCO (beyond the 100MW threshold for being an NSIP), and took into account an irrelevant consideration, namely the total proposed generating capacity when this was not secured by a requirement in the DCO.

The Judge held there is no legal or policy requirement that all benefits which are given weight in a planning balance must be formally secured. In this case, the weight in the planning balance to be given to the generating capacity was a matter of judgment for the Defendant. On the basis of the evidence available to it, the Defendant was reasonably entitled to rely on the potential generating capacity rather than any specific and fixed minimum scale (above 100MW).

5. Cumulative effects 

The Judge held the approach taken by the Defendant to the consideration of cumulative effects of known but uncertain plans for extension of the National Grid Substation did not constitute a breach of the EIA Regulations 2017: the potential future developments in question were not “existing and/or approved projects” in respect of which a cumulative assessment would be required by reference to para 5 of Sch 4 EIA Regulation 2017. The appraisal document which had been produced by the Applicants in respect of such potential further projects did not constitute a cumulative impact assessment. The ExA and Defendant were entitled to regard this as “environmental information” but not “further information” as defined in regulation 3 of the EIA Regulation 2017, and to leave it out of account when reaching their reasoned conclusion on the likely significant effects.

6. Alternative locations 

The Judge held that the decision of Holgate J in R (Save Stonehenge World Heritage Site Ltd) v. Secretary of State for Transport [2021] EWHC 2161 (Admin) does not establish as a principle of law that, in any case where a proposed development would cause adverse effects, but these are held to be outweighed by its beneficial effects, the existence of alternative sites inevitably becomes a mandatory material consideration.  It was further held that the case law does indicate that consideration of alternative sites will only be relevant to a planning application in exceptional circumstances.

The Judge refused the Claimant’s application for permission to appeal.

Mark Westmoreland Smith and Jonathan Welch appeared on behalf of the Secretary of State, Hereward Phillpot KC and Hugh Flanagan appeared on behalf of the Interested Parties.