The two grounds considered by the Court of Appeal related to flood risk policy and cumulative effects.

Surface Water Flood Risk

In respect of flood risk, the Court of Appeal rejected the criticism of the approach taken to surface water flood risk for the purposes of complying with the sequential test.  The Court 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 Court upheld as reasonable the Respondent’s conclusion that they had been.

Cumulative Effects

The Court held the approach taken by the Respondent 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 Regulations 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 Respondent were entitled to regard this as “environmental information” but not “further information” as defined in regulation 3 of the EIA Regulations 2017.

The Court of Appeal therefore dismissed the appeal. A copy of the judgment is available here.

In both the High Court and Court of 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.