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High Court Quashes Norfolk Vanguard Windfarm Decision

Hereward Phillpot QC
Ned Westaway
Michael Brendan Brett

Mr Justice Holgate has today handed down judgment in R (Pearce) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 326 (Admin) – judgment available here - quashing the Secretary of State's grant of development consent for a sizeable windfarm development off the coast of Norfolk in the North Sea. 
 
The case concerns the assessment of cumulative onshore landscape and visual impacts at the village of Necton in Norfolk, the grid connection site for the Norfolk Vanguard project and also a second closely related project, Norfolk Boreas, for which an application for consent was submitted subsequently. 
 
The claimant argued that cumulative impacts from the onshore project substations for both the Vanguard and Boreas projects needed to be addressed when determining the Vanguard application and that the Secretary of State’s failure to do was unlawful and in breach of the applicable environment impact assessment (“EIA”) regulations (ground 1).  He also argued that the reasons given for deferring the assessment of cumulative impacts were irrational (ground 2).
 
The High Court upheld both grounds and declined to withhold relief under s.31(2A) of the Senior Courts Act 1981 (or, insofar as it applies to EIA as retained EU law, the stricter test set out in Simplex GE (Holdings) Limited v SSE [2017] PTSR 1041).
 
On the primary ground, the Judge articulated the essential principle as follows (at para.120 of the judgment):

“The effect of Directive 2011/92/EU, the 2009 Regulations and the case law is that, as a matter of general principle, a decision-maker may not grant a development consent without, firstly, being satisfied that he has sufficient information to enable him to evaluate and weigh the likely significant environmental effects of the proposal (having regard to any constraints on what an applicant could reasonably be required to provide) and secondly, making that evaluation.”

In the present case, the Judge held that the cumulative impacts were significant effects that needed to be evaluated and that the Secretary of State’s justification for deferring assessment – “the limited information available” on the Boreas project – was not, on the facts of the case, lawful or rational.
 
The judgment is notable for its restatement of key principles of law relating to the proper approach to EIA, in particular in relation to cumulative and in-combination impacts, and the effect of the amendments to the EIA Directive made in 2014 and transposed into UK secondary legislation in 2017. It is also the first decision of the High Court after the end of the UK's post-Brexit transition period to consider EIA legislation as retained EU law, and the issue of discretion in judicial review proceedings relating to breaches of retained EU law.
 
Ned Westaway and Michael Brendan Brett (instructed by Matt Gilks of Thrings LLP) acted for the claimant.

Hereward Phillpot QC (instructed by Vicki Redman of Womble Bond Dickinson) acted for the interested party.