The East Anglia One North (“EA1N”) windfarm comprises up to 67 offshore wind turbine generators, covering an area of approximately 208km2 and generating up to 800MW. The East Anglia Two (“EA2”) windfarm comprises up to 75 offshore wind turbine generators, covering an area of approximately 218km2 and generating up to 900MW. Together the two windfarms have the potential to meet nearly 10% of the UK’s offshore wind cumulative deployment target for 2030.
The schemes have an offshore element and an onshore element.
The offshore element is for the construction and operation of the wind turbine generators and associated infrastructure such as offshore electrical platforms, inert-array cables and export cables to take the electricity generated from the offshore electrical platforms to landfall.
The onshore works include landfall connection works, with underground cables running to a new onshore substation located next to Friston in Suffolk. They also include the realignment of existing overhead power lines and the construction of a new National Grid substation at Friston. The Friston site will therefore accommodate a substation for each of EA1N and EA2, and a new National Grid substation and cable sealing ends connected to the realigned overhead lines. The site at Friston extends to 46.28 hectares.
The EA1N and EA2 schemes form part of a wider series of offshore wind farms known as the East Anglia Zone. The projects in the East Anglia Zone are the consented East Anglia ONE and East Anglia THREE windfarms, as well as EA1N and EA2, and future windfarm projects still to be brought forward.
Both windfarms and the National Grid substation are classified as ‘Nationally Significant Infrastructure Projects’ (“NSIPs”) as defined in the Planning Act 2008, which created a system of development consent for NSIPs in England and Wales. As such, development consent for the projects takes the form of a Development Consent Order (“DCO”).
The DCO is a statutory instrument, and in addition to granting development consent for the proposed development it also grants powers of compulsory acquisition over the land needed for the project, and generally provides all of the powers needed to build, maintain and operate the development over its lifetime.
Decision-making on proposed NSIPs follows a two-stage process. The first stage is a six month examination into the proposals by an Examining Authority (“ExA”) comprising a panel of Inspectors who assess the merits of the application and make a report and recommendation to the Secretary of State. The second stage is a three month decision-making period during which the Secretary of State may write to the applicant and interested parties seeking further information relevant to his decision, if needed.
Any challenge the Secretary of State’s decision must be made by way of an application for judicial review.
Decision-Making and Litigation
The two applications were made and examined simultaneously by a single ExA. Restrictions associated with the Covid 19 pandemic led to the examination taking place entirely remotely with no ‘in person’ hearings, and being extended from the usual six month duration to a total of nine months. The ExA’s report recommended that development consent should be granted.
Following an extended round of requests for further information (mainly related to offshore Habitats Regulations issues), the Secretary of State for Business, Energy and Industrial Strategy (“The Secretary of State”) granted the two DCOs in decision letters dated 31 March 2022.
The Secretary of State’s decisions were then subject to two applications for judicial review from different local objector groups: Substation Action Save East Suffolk Ltd (“SASES”) and Suffolk Energy Action Solutions SPV Ltd. (“SEAS”).
The SASES Claim
SASES’s challenge was based on six grounds, focussed on a range of legal issues relating to the decision to approve the onshore substation developments. Permission was granted on the papers, and a two-day substantive hearing was held in front of Mrs Justice Lang. The challenge was rejected on all grounds.
Mrs Justice Lang’s 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 harm to designated heritage assets (listed buildings and conservation areas) in cases under the Planning Act 2008, the lawfulness of taking account of public benefits (generating capacity) which are not legally ‘secured’, and the circumstances in which alternatives will be relevant (see R (Substation Action Save East Suffolk Ltd.) v. (1) Secretary of State for Business, Energy and Industrial Strategy (2) East Anglia One North Ltd. (3) East Anglia Two Ltd  EWHC 3177 (Admin)).
SASES’s application for permission to appeal was rejected by Mrs Justice Lang, but a further application for permission has been made to the Court of Appeal and its decision is awaited.
The SEAS Claim
SEAS’s claim had multiple grounds all concerned with one issue, namely the efforts made by the applicants to negotiate the acquisition of the interests in land needed for the onshore elements of the two schemes, in parallel to seeking powers of compulsory acquisition over the same land through the DCOs.
It was alleged by SEAS that the applicants had “embarked on what appeared to be a systematic, well-funded and intended-to-be-secret programme aiming to suppress participation of all affected landowners in not just the consideration of compulsory acquisition issues but also examination of the underlying impacts and planning merits of the developments” and that this had “a chilling effect … on the public process” that the Secretary of State failed to grapple with when making his decision.
Permission was refused on the papers, but SEAS renewed its application into open court and a permission hearing was held in front of Mr Justice Lane. He rejected the application as unarguable, emphasising the importance and implications of the inquisitorial nature of the examination process established under the Planning Act 2008, the powers available to ExAs to ensure that they can obtain all of the information they require (and the implications of the Environmental Impact Assessment Regulations in that regard), the lawfulness of the Heads of Terms agreed with landowners in this case, and the ability of the Secretary of State to rely on summaries of issues in the draft decision letter prepared by officials without himself having to read the underlying documents which raise those issues (see R (Suffolk Energy Action Solutions SPV Ltd.) v. (1) Secretary of State for Business, Energy and Industrial Strategy (2) East Anglia One North Ltd. (3) East Anglia Two Ltd  EWHC 2623 (Admin)).
SEAS has applied for permission to appeal to the Court of Appeal, and a decision is awaited.
Several members of Francis Taylor Building have been and continue to be involved in the EA1(N) and EA2 projects.
Members of chambers advised the applicants on Habitats Regulations issues during the examination and subsequently in response to the requests for information made by the Secretary of State, enabling the complex legal issues associated with offshore impacts on protected habitats to be successfully overcome.
Other members of chambers represented East Suffolk Council (“ESC”) throughout the six month examination.
Members have also separately represented both the applicants and the Secretary of State in the Judicial Review litigation, and continue to do so as the challenges are considered by the Court of Appeal.
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