The King on the Application of Suffolk Energy Action Solutions SPV Ltd v The Secretary of State for Business, Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 06 October 2022 |
| Neutral Citation | [2022] EWHC 2623 (Admin) |
| Docket Number | No. CO/1696/2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 2623 (Admin)
Mr Justice Lane
No. CO/1696/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Mr D Wolfe KC and Ms C Colquhon (instructed by Leigh Day) appeared on behalf of the Claimant.
Mr M Westmoreland Smith and Mr J Welch (instructed by the Government Legal Department) appeared on behalf of the Defendant.
Mr H Phillpot KC and Mr H Flanagan (instructed by Shepherd Wedderburn LLP) appeared on behalf of the Interested Parties.
This is a renewed application for permission to apply for judicial review of the defendant's two development consent orders of 31 March 2022, made in exercise of powers under the Planning Act 2008; namely the East Anglia ONE North Offshore Wind Farm Order 2022 and the East Anglia TWO Offshore Wind Farm Order 2022.
Permission was refused by Lang J on the papers on 1 July 2022.
The essence of the challenge brought by the claimant is that the interested parties created a so-called “chilling effect” by persuading landowners, whose properties were proposed to be purchased in connection with the onshore elements of the wind farm scheme, to enter into arrangements, in particular so-called “heads of terms”, which prevented or, in the claimant's terminology, “gagged” the landowners from making submissions to the examining authority. The claimant says those submissions might have been relevant to the proper evaluation by the examining authority of the harmful consequences of the onshore development; in particular on ecology.
Regulation 4(2) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 prohibits the Secretary of State from making an order granting development consent unless an EIA has been carried out in respect of the application. This includes the preparation of an environment statement. The central part of the EIA process, therefore, is the duty on the applicant to properly assess environmental factors.
The claimant says that although it repeatedly complained to the examining authority about the alleged chilling effect, the examining authority said nothing about it in its report to the defendant, and the defendant “considered only four short paragraphs of a draft decision letter” and so “unlawfully failed to grapple with” obviously material issues that were raised by the claimant.
Mr Wolfe KC expanded upon these matters in his oral submissions. He drew attention to the claimant's submissions to the examining authority. These contended that the interested parties' policy of seeking to agree heads of terms with the relevant landowners, whereby the latter would “not object to the application for development consent nor any other planning applications associated with the project” had a chilling effect on the statutory scheme and “undermines the integrity of the planning process”.
In their written submissions to the examining authority, the claimant said this about the relevant heads of terms:
“The effect of these clauses has been profound. Virtually no landowner has turned up to give evidence to the Authority whether in relation to their own land or in relation to the application more broadly.
This has meant that on a wide range of really important issues SPR [the interested parties] has managed to prevent relevant evidence coming forward. This covers matters such as offshore turbines, the landing of the cables on-shore on the fragile Suffolk coast, the impact of the many miles of corridor that will be built to bring the cable inland and the enormous and damaging impact on the ancient village of Friston where vast substations, each almost as big as Wembley Stadium, will be built. The suppressed evidence could cover such varied matters as tourism, harm to the environment and to wildlife, noise and sound pollution, traffic, mental health and employment.
The landowners who are subject to compulsory purchase and to SPR's gagging system represent those who are most directly affected by this huge development. As a class they could have given vitally important evidence to the Authority. Their voices have been silenced.”
Although the examining authority indicated that it would reach a view on the claimant's complaints, in the event it did not do so. In October 2021, the examining authority reported to the defendant. The matters covered in the report are set out in the defendant's decision of 31 March 2022. They are as follows:
“ Initial Analysis
• Need
Planning Issues: Onshore
• Flooding and Drainage
• Landscapes and Visual Amenity
• Onshore Historic Environment
• Seascapes
• Onshore Ecology
• Coastal Processes
• Onshore Water Quality & Resources
• Noise, Nuisance and Health Effects
• Transport & Traffic
• Socio-economic Effects Onshore
• Land Use
• Other Onshore Matters
Planning Issues: Offshore
• Offshore Ornithology
• Marine Mammals
• Other Offshore Biodiversity Effects
• Marine Physical Effects and Water Quality
• Offshore Historic Environment
• Offshore Socio-economic and Other Effects.
Habitats, Overarching Analysis, Compulsory Acquisition, Temporary Possession and Development Consent Considerations.
• Habitats Regulations Assessment
• Alternative and Site Selection
• Good Design
• Compulsory Acquisition and Related Matters
• The Draft Development Consent Order and Related Matters.”
As it had to, the defendant's decision addressed, both planning and related issues, and the issue of the compulsory purchase of land. In the section of the letter dealing with compulsory purchase there is the following:
“ The Use of Non-Disclosure Agreements
26.29 This issue has been cited by the ExA in the objection of Dr Alexander Gimson and Tessa Wojtczak, but the ExA provides no further detail in its Report.
26.30 A submission was made to the Secretary of State by SEAS [the claimant] on 30 November 2021 setting out detailed concerns. The Applicant responded to these concerns on 31 January 2022 as part of its representation to the Secretary of State's second round of post-examination consultation.
26.31 In brief, concerns were raised that parties entering into an agreement with Scottish Power Renewables for the voluntary acquisition of land or rights in it were being required to sign Non-Disclosure Agreements that prevented these parties from participating in the examination and that consequently the ExA was not getting a clear picture of the strength of objection to the two Proposed Developments.
26.32 The Secretary of State has considered the representations of both SEAS and the Applicant carefully due to the important issues that they raise about the conduct of the Examination and the rights of all affected parties to have a fair hearing. Having also reviewed the totality of the ExA's Report the Secretary of State considers that all relevant issues were raised and explored in the Examination and that he has the necessary information to enable him to make a decision.”
Mr Wolfe submits that these paragraphs are, at least arguably, legally defective. As well as failing properly to grapple with the “chilling effect” issue, the defendant did not personally consider the documentary information referred to in the passage I have just quoted.
The defendant's pre-action protocol response letter of 5 May 2022 represents, in Mr Wolfe's submission, an acknowledgement of this point:
“22. The Secretary of State will, of course, comply with the duty of candour which requires the Secretary of State to ensure that you and the Court are aware of how the decision was taken and why and ensure that all the cards are face up on the table. We set out below the facts relating to how the decision was taken, as instructed to us by our client.
23. Shortly after receiving ExA's Report, SEAS sent two lengthy submissions to the Secretary of State which set out their concerns in relation to the use of what it described as non-disclosure agreements.
24. The BEIS team dealing with the application at the Department identified that this issue had not been addressed in the ExA's Report and that it ought to be addressed by the Secretary of State.
25. The provision of information by Scottish Power Renewables at Appendix 1 in its response to the Secretary of State's Questions of 20 th December 2021, provided the Department with a substantive response to the concerns raised by SEAS. This response highlighted that many landowners and Affected Persons submitted Relevant Representations and that none of these were withdrawn during the course of the Examination (paragraph 10), the explanation of how the Option Agreements would operate, the approach taken by the Applicants to Dr Gimson's concerns, that no Option Agreements had been entered to, the non-binding...
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