Raymond Stephen Pearce v Secretary of State for Business Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 18 February 2021 |
| Neutral Citation | [2021] EWHC 326 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2836/2020 |
| Date | 18 February 2021 |
and
[2021] EWHC 326 (Admin)
THE HON. Mr Justice Holgate
Case No: CO/2836/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ned Westaway and Michael Brett (instructed by Thrings LLP) for the Claimant
Richard Moules (instructed by Government Legal Department) for the Defendant
Hereward Phillpot QC (instructed by Womble Bond Dickinson (UK) LLP) for the Interested Party
Hearing dates: 19 and 20 January 2021
Approved Judgment
Introduction
The Claimant, Mr Raymond Pearce, makes this application for judicial review under s.118 of the Planning Act 2008 (“PA 2008”) to challenge the decision of the Defendant, the Secretary of State for Business, Energy and Industrial Strategy, on 1 July 2020 to make the North Vanguard Offshore Wind Farm Order ( SI 2020 No. 706) (“the Order”). The Order grants development consent to the Interested Party, Norfolk Vanguard Limited (“NVL”) for what is said to be one of the largest offshore wind projects in the world. This development (“Vanguard”) is closely related to a second wind farm project Norfolk Boreas (“Boreas”), lying immediately to the north-east of the offshore Vanguard array. Together they would have an export capacity of 3.6 GW.
On 8 June 2018 NVL submitted its application for a development consent order (“DCO”) under s.37 of PA 2008 in respect of Vanguard. The examination of that application began on 10 December 2018 and ended on 10 June 2019. The Examining Authority submitted its report to the Defendant (“ExAR”) on 19 September 2019. The application for development consent in respect of Boreas was made on 11 June 2019. The examination of that second application began on 12 November 2019 and closed on 12 October 2020. The court was informed that a decision by the Defendant on the Boreas application is anticipated to be made in April 2021.
NVL proposed that the onshore infrastructure of the two projects be co-located. This involved a cable route carrying high voltage direct current for 60 km from the landfall at Happisburgh to a substation site near the village of Necton. There the power would be converted to alternating current and fed into the National Grid.
The Environmental Statement (“ES”) prepared by NVL for Vanguard assessed cumulative impacts arising from both projects, including landscape and visual impacts from the infrastructure proposed at Necton.
The development proposed at Necton for both the Vanguard and Boreas projects has attracted substantial objections, including objections from the Claimant who lives near the planned cable route. They concern both the impacts of the Necton infrastructure for Vanguard in isolation and also the cumulative impacts which would occur if infrastructure for Boreas were to be added at Necton.
In their assessment of landscape and visual impacts for the Vanguard application, both the Examining Authority and the Defendant decided that consideration of cumulative impacts from Vanguard and Boreas should be deferred to any subsequent examination of the Boreas proposal.
This challenge raises three issues:-
(1) Whether the Defendant was obliged to take the cumulative impacts at Necton into account when determining the Vanguard application and acted unlawfully by deferring consideration of that subject to any examination of an application for a DCO in respect of the Boreas project;
(2) Whether the reasons given by the Defendant for not taking those cumulative impacts into account when determining the Vanguard application were legally inadequate;
(3) In the event of the court deciding that the Defendant erred in law in either of those two respects, whether it should refuse to grant relief in the exercise of its discretion.
The remainder of this judgment is set out under the following headings:
The Statutory Framework
| Headings | Paragraph Numbers |
| The statutory framework: | |
| 9–14 | |
| Environmental Impact Assessment | 15–24 |
| National Policy Statements | 25–33 |
| The proposals | 34–42 |
| Assessment of cumulative impacts | 43–53 |
| The Examination | 54–67 |
| The Decision Letter | 68–74 |
| The grounds of challenge: a summary of the parties' submissions | 75–86 |
| Discussion: | |
| Introduction | 87–90 |
| The issues | 91–94 |
| Was there a breach of the 2009 Regulations? | 95–125 |
| Rationality | 126–141 |
| Adequacy of reasons | 142–145 |
| Whether relief should be granted or refused | 146–163 |
| Conclusions | 164–165 |
| Addendum: the Court's order | 166–180 |
The framework laid down by the PA 2008 has been summarised in a number of cases, for example, R (Friends of the Earth Limited) v Heathrow Airport Limited [2020] UKSC 52 at [19] to [38]; R (ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWCA Civ 43 at [6] to [8] and [104] to [105] and R (Spurrier) v Secretary of State for Transport [2020] PTSR 240 at [21] to [39] and [98] to [109]. There is no need for that analysis to be repeated here.
In so far as is material, s.104 of the PA 2008 provides:
“(1) This section applies in relation to an application for an order granting development consent if a national policy statement has effect in relation to development of the description to which the application relates.
(2) In deciding the application, the Secretary of State must have regard to –
(a) any national policy statement which has effect in relation to development of description to which the application relates (a “relevant national policy statement”),
(aa) …..,
(b) any local impact report (within the meaning given by section 60(3)) submitted to the Secretary of State before the deadline specified in a notice under section 60(2),
(c) any matters prescribed in relation to development of the description to which the application relates, and
(d) any other matters which the Secretary of State thinks are both important and relevant to the Secretary of State's decision.
(3) The Secretary of State must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of subsections (4) to (8) applies.
(4) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the United Kingdom being in breach of any of its international obligations.
(5) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the Secretary of State being in breach of any duty imposed on the Secretary of State by or under any enactment.
(6) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would be unlawful by virtue of any enactment.
(7) This subsection applies if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits.
(8) This subsection applies if the Secretary of State is satisfied that any condition prescribed for deciding an application otherwise than in accordance with a national policy statement is met.
(9) For the avoidance of doubt, the fact that any relevant national policy statement identifies a location as suitable (or potentially suitable) for a particular description of development does not prevent one or more of subsections (4) to (8) from applying.”
Section 104(2)(d), allows the Secretary of State to exercise a judgment on whether he should take into account any matters which are relevant, but not mandatory, material considerations. This reflects the well-established line of authority which includes CREEDNZ v Governor General [1981] NZLR 172, 183; In Re Findlay [1985] AC 318, 333–334; Oxton Farm v Harrogate Borough Council [2020] EWCA Civ 805 at [8]; and Friends of the Earth [2020] UKSC 52 at [116] to [120].
When determining an application for development consent, section 114 requires the Secretary of State either to make a DCO or to refuse such consent. Section 116 requires the Secretary of State to prepare and publish a statement of the reasons for his decision.
Section 115 enables a DCO to be granted not only for development of the defined categories of nationally significant infrastructure projects (“NSIPs”) requiring development consent (Part 3 and s.31 of PA 2008), but also for “associated development” as defined in s.115(2) to (4).
A decision to grant a DCO is liable to be challenged by way of judicial review under s.118(1) of PA 2008. The general principles upon which a legal challenge may be brought were summarised by the High Court in ClientEarth at [2020] PTSR [98] to [100].
Environmental Impact Assessment
The relevant legislation on environmental impact assessment (“EIA”) for the determination of the Vanguard application was Directive 2011/92/EU, which, in relation to DCO procedures, was transposed by the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (SI 2009 No. 2263) as amended (“the 2009 Regulations”). The 2011 Directive was amended by Directive 2014/52/EU, but the latter does not apply to a project for which a screening opinion was sought before 16 May 2017 (article 3(2) of the 2014 Directive). The 2014 Directive was transposed by the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 572) (“the 2017 Regulations”), regulation 37(2) of which gave effect to the transitional provisions of the 2014 Directive. In the present case NVL sought a scoping opinion on 3 October 2016 and so it is common ground...
To continue reading
Request your trial
-
TV Harrison CIC v Leeds City Council
...by the fact that approval came through the chair's casting vote. v) As Holgate J explained in Pearce v Secretary of State for BEIS [2021] EWHC 326 (Admin), [2022] Env L R 4 at [152] – [153] where matters of planning judgement are involved the court has to be conscious of the local planning......
-
Secretary of State for Transport v Curzon Park Ltd and Others
...permission in relation to a particular site: see, eg, Pearce v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 326 (Admin), [2022] Env LR 4 (cumulative impact on the landscape and visual amenity from proposals for erection of wind turbines) (“the cumulative impa......
-
Peter Sweetman v an Bord Pleanála, Ireland and The Attorney General
...in the current sentence of the current judgment. 62 Holgate J. discussed the concept recently in Raymond Stephen Pearce v. Secretary of State for Business Energy and Industrial Strategy [2021] EWHC 326 (Admin), noting at para. 25 an express National Policy Statement for England relevant to......
-
Table of Cases
...[1981] AC 578, HL 125, 126 Pearce v Secretary of State for Business Energy and Industrial Strategy and Norfolk Vanguard Ltd [2021] EWHC 326 (Admin) 197 People over Wind & Sweetman v Coillte Teoranta (Case C-323/17), EU:C:2018:244, [2018] PTSR 1668, CJEU 63, 64 Planning appeal reference APP/......
-
Case Studies Involving Wind Power Projects
...on both applications. 2 See Pearce v Secretary of State for Business Energy and Industrial Strategy and Norfolk Vanguard Ltd [2021] EWHC 326 (Admin). 198 Renewable Energy from Wind and Solar Power CASE STUDY XXII Development Consent Granted in Principle for 231-Turbine Hornsea Project Three......