R Samuel Smith Old Brewery (Tadcaster) (an unlimited company) Secretary of State for Energy & Climate Change National Grid Electricity Transmission Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwards-Stuart |
| Judgment Date | 31 January 2012 |
| Neutral Citation | [2012] EWHC 46 (Admin) |
| Docket Number | Case No: CO/5789/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 January 2012 |
[2012] EWHC 46 (Admin)
Mr Justice Edwards-Stuart
Case No: CO/5789/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Peter Village QC and Mr James Strachan (instructed by Ward Hadaway) for the Claimant
Miss Nathalie Lieven QC (instructed by The Treasury Solicitors) for the Defendant
Mr Mark Lowe QC (instructed by Berwin Leighton Paisner Solicitors) for the Interested Party
This is a claim for judicial review of a decision dated 8 April 2010 of the Secretary of State for Energy and Climate Change ("the SoS") made under section 37 of the Electricity Act 1989. The application is made by a concerned landowner, Samuel Smith Old Brewery (Tadcaster) ("SSOBT"). The decision related to a proposal made by National Grid plc ("NG") to install and keep installed a new section of overhead electricity line about 2.2 km long and involving some 7 pylons over land lying to the south-west of Tadcaster in North and West Yorkshire. Some of this land belongs to SSOBT. There was also an application for 5 wayleaves associated with the development. In practical terms these were for the foundations of the individual pylons, but they also included the oversailing of the land.
Two experienced inspectors appointed by the SoS recommended that the application should be refused. Their view was that the benefits of NG's proposal did not clearly outweigh the harm to the openness of the Green Belt land on which the new line was proposed (and other harm). They expressed their conclusions in a report dated 7 August 2009. It ran to over 500 paragraphs.
The purpose of the proposed development was to reinforce a section of the national grid known as the Ferrybridge Ring. No-one disputed that this needed to be done: the real issue was whether the new section of line that was necessary to achieve this should be done by way of underground cables rather than by overhead power lines. The former solution was significantly more expensive —by about up to 50%, depending on which alternative solution was chosen.
Stripping away the procedural and legal niceties the decision by the SoS involved balancing
(1) the additional cost of an underground cable solution and any delay that adopting this solution might cause, against
(2) the adverse visual impact to the landscape that would result from the proposed overhead power lines and associated pylons.
There were other considerations, such as the ecological impact and the effect on the local farmers on whose land the pylons would be constructed, but these paled into relative insignificance when compared with the visual impact on the landscape.
The facts
The Ferrybridge Ring is a 132kV supply that runs in a roughly trapezium shaped loop from Ferrybridge to Husthwaite via Harrogate and then back to Ferrybridge via Osbaldwick. The Ferrybridge-Harrogate-Husthwaite section is a double circuit line, and the Husthwaite-Osbaldwick-Ferrybridge section is a single circuit line.
In the middle of this loop there is a double circuit 275kV line that runs from Monk Fryston (which is just north of Ferrybridge) to Poppleton, near York. This line runs roughly north-south and parallel to part of the Ferrybridge-Harrogate leg of the Ferrybridge Ring.
NG wishes to join the 275kV line to the 132kV line in order to reinforce the supply to the Ferrybridge Ring. This involves running a new 275kV line approximately east-west to join the existing 132kV line about halfway along the section between Ferrybridge and Harrogate, at a point near Bramham. At this point the existing 132kV line would be cut and a 15 mile section between Bramham and a substation just north east of Harrogate, at Knaresborough, would be upgraded to 275kV.
So far as the upgrade to the existing 132kV line is concerned, this presents no difficulty in planning terms because by and large the existing pylons (or towers) would remain. The issue at the heart of the applications with which this case is concerned is the means by which the link between the existing 275kV line and Bramham would be created.
As I have already indicated, NG's proposal is to do this by means of a new overhead line involving the erection of 7 new pylons. However, it is also possible to do this by means of an underground cable, albeit at significantly greater cost.
Along part of the proposed line of the new east-west link there is a short existing spur of overhead line running from the existing Ferrybridge-Harrogate 132kV section to Bramham, where it terminates at a bulk supply point. This spur is carried on 5 pylons. Under NG's proposals this spur would be replaced by underground cables and so the 5 pylons would be removed. However, one of them would be replaced with a new pylon at the point where the new overhead line would terminate and go underground.
Thus in broad terms the overall effect of NG's proposals would be to remove four pylons and add seven. As far as I can tell from the plans, SSOBT, which is the well known brewery, owns about half the land over which the proposed 2.2 km section of new overhead line would run. However, it is SSOBT's case that both it and the other landowners whose land lies along the proposed route are willing to have the line under their land rather than overhead.
In April 2009, very shortly before the inquiry opened, NG proposed certain amendments to its scheme which included a change to the proposed route of the underground spur to Bramham. This has the effect that a further two pylons on the existing 132kV line would be removed. These works would have constituted permitted development and so did not need to form part of the section 37 application that was before the Inspectors.
Whilst the overall effect of this amended scheme would involve the addition of only one new pylon, it is obvious that a conclusion on an application of this sort cannot be arrived at by drawing up a balance sheet of the pylons to be added or subtracted and simply looking at the bottom line: what NG's proposal involves is a line of seven new pylons marching across a particular tract of countryside where there are no pylons at present.
An important feature of NG's proposals is that the section of the existing Ferrybridge-Harrogate 132kV line that was to be upgraded to 275kV was to terminate in an existing, but hitherto unused, substation near Knaresborough. This substation had been a speculative development by NG in the 1990s in anticipation of a different scheme for which the necessary consents were never obtained. In one of the sets of alternative proposals put forward by SSOBT, the connection to the Knaresborough substation was not required and so an issue arose as to whether or not the historic development costs of the substation should be taken into account when costing those proposals. NG's argument is that the adoption of those proposals, unlike the various other options, would mean that the costs of building the Knaresborough substation would effectively be thrown away. I return to this question below.
In spite of fairly extensive consultation during the formulation and development of NG's proposals, they have attracted no opposition from the relevant local planning authorities, any national or local amenity or ecology interests or, indeed, anyone who lives in the area save for SSOBT and two other landowners: Mr A S Elliott and Mr R D Elliott —they are owners or occupiers of the remaining land over which the proposed overhead lines would run. A late objection was received also from an organisation called the Boston Spa Allotment Association, but at the time of the inquiry the basis of that organisation's objection was not known. Understandably, NG relied strongly on what it described as the limited and parochial nature of these objections.
It was NG's case that the very high additional costs of putting cables underground, together with the difficulty and expense of any maintenance of those cables, outweighed the adverse effect on the environment, both visually and in practical terms. NG's general approach was that burying cables underground was only justified in nationally important landscapes, of which this was not one.
It was not disputed by anyone that, if an overhead line solution was to be adopted, NG's proposal was the best choice. There is therefore no issue about other possible routes: the dispute is whether the overall adverse effect on the environment and the local landscape presented by the overhead line outweighed the additional cost and, possibly, delay that was attendant on the underground cable alternative.
SSOBT put forward several sets of proposals, all variants of the underground alternative, of which only two proved to be really relevant. These are the C options and the E options. There are significant differences between the parties' rival costings for the C options, which are the set of options that do not involve the use of the Knaresborough substation. As I have said, it was NG's case that the C options had to be costed by incorporating the "sunk" costs of building Knaresborough. SSOBT's submission is and was that, since the costs of building the Knaresborough substation had already been incurred and effectively written off, they should be ignored when costing any alternative proposals. When the costs of...
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