The King on the application of Substation Action Save East Suffolk Ltd v Secretary of State for Business, Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 13 December 2022 |
| Neutral Citation | [2022] EWHC 3177 (Admin) |
| Year | 2022 |
| Docket Number | Case No: CO/1707/2022 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 3177 (Admin)
Mrs Justice Lang DBE
Case No: CO/1707/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Turney and Charles Bishop (instructed by Richard Buxton Solicitors) for the Claimant
Mark Westmoreland Smith and Jonathan Welch (instructed by the Government Legal Department) for the Defendant
Hereward Phillpot KC and Hugh Flanagan (instructed by Shepherd and Wedderburn LLP) for the Interested Parties
Hearing dates: 15 & 16 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30 am on 13 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives
The Claimant applies for judicial review, pursuant to section 118 of the Planning Act 2008 (“PA 2008”), of the Decisions of the Defendant, dated 31 March 2022, to make two development consent orders (“DCOs”) under section 114 PA 2008 for the construction, respectively, of the East Anglia ONE North and East Anglia TWO Offshore Wind Farms with associated onshore and offshore development.
The two DCOs are the East Anglia ONE North Offshore Wind Farm Order 2022 (SI 2022/432) (“EA1N”) and the East Anglia TWO Offshore Wind Farm Order 2022 (SI 2022/433) (“EA2”).
Both DCOs authorise two nationally significant infrastructure projects (“NSIPs”): a generating station and associated grid connection and substation, and a National Grid NSIP comprising substation, cable sealing ends and pylon realignment. The project substations, and the National Grid NSIP, are to be located at Friston in Suffolk.
The Decisions were preceded by an examination process, held simultaneously in respect of both applications, by the Examining Authorities (“the ExA”) which culminated in two separate reports (“ERs”), both recommending the grant of development consent. The Defendant accepted the recommendation of the ExA in two separate decision letters (“DL”) which accompanied the Decisions. The reports and the DLs do not differ materially on the issues to which this claim relates. Therefore, to avoid duplication, references to the ER and DL in respect of EA1N stand also as references to the ER and DL for EA2.
The Claimant is a company limited by guarantee formed by a number of local residents in East Suffolk to represent communities in the area. There are significant concerns in the local community about the onshore location of the connection of the development to the National Grid. It is this element of the development which is the subject of the claim; the Claimant does not object to the offshore wind farms.
The two Interested Parties (“the Applicants”) were the respective applicants for the DCOs. They are wholly owned by ScottishPower Renewables, part of the Scottish Power group of companies, which is part of the Spanish utility group Iberdrola.
I granted permission to apply for judicial review, on the papers, on 1 July 2022.
Grounds of challenge
The Claimant's grounds of challenge may be summarised as follows:
Ground 1: Flood risk (as amended). The Defendant erred in his assessment of the adequacy of the Applicants' Flood Risk Assessment (“FRA”), and in his overall assessment of flood risk, in that:
i) the sequential test, properly applied, requires assessment of all sources of flooding at the stage of site selection;
ii) the Defendant did not properly apply the sequential test at the stage of site selection, rather than at the stage of design after site selection; and
iii) he otherwise acted irrationally in reaching his conclusions on flood risk.
Ground 2: Heritage assets. The Defendant's conclusions as to heritage harm were unlawful in that:
i) he substantively adopted the ExA's reasoning which was based on an unlawful interpretation of the Infrastructure Planning (Decisions) Regulations 2010 (“the Decisions Regulations 2010”), which consequently infected the Defendant's analysis of heritage harm; and/or
ii) while the Defendant purported to give heritage harm “considerable importance and weight”, such weight was not reflected in the overall planning balance, which followed the ExA's analysis, and which unlawfully attributed only “medium” weight, contrary to the legal requirement.
Ground 3: Noise. The Defendant erred in his treatment of noise impacts, in that he:
i) failed to take into account that his conclusions on noise necessarily entailed a conflict with paragraph 5.11.9 of National Policy Statement (“NPS”) EN-1;
ii) relied on the imposition of a requirement which was in all the circumstances unreasonable in that it had not been shown to be workable; and/or
iii) failed to take into account the impact of noise from switchgear/circuit breakers in the National Grid substation.
Ground 4: Generating capacity. The Defendant:
i) failed to take into account representations made by the Claimant in respect of the need to secure a minimum generating capacity in the DCO and/or failed to give reasons for rejecting those representations; and/or
ii) took into account an irrelevant consideration, namely the total proposed generating capacity of the Development when this was not secured by a requirement in the DCO.
Ground 5: Cumulative effects. The Defendant irrationally excluded from consideration the cumulative effects of known plans for extension (outlined in the Applicants' “Extension of National Grid Substation Appraisal”), through the addition of other projects to connect at the same location in Friston, and failed to take into account environmental information relating to those projects, in breach of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (“the EIA Regulations 2017”).
Ground 6: Alternative locations. The Defendant failed to consider whether there were alternative locations in which to situate the project substations and National Grid NSIP. He was required to do so in the face of the substantial planning objections to the proposals, including in relation to heritage harm and flood risk.
Factual background
The applications for development consent comprised an offshore element and an onshore element. The offshore element is for the construction and operation of up to 67 (in the case of EA1N) and 75 (in the case of EA2) wind turbine generators (“WTGs”); together with up to four offshore electrical platforms; an offshore construction, operation and maintenance platform; a meteorological mast; inert-array cables linking the WTGs to each other and to the offshore electrical platforms; platform link cables; and up to two export cables to take the electricity generated by the WTGs from the offshore electrical platforms to landfall. The proposed generating capacity was up to 800MW for EA1N and up to 900MW for EA2.
The onshore works in respect of both applications include landfall connection works north of Thorpeness in Suffolk, with underground cables running to a new onshore substation located next to Friston, Suffolk. The onshore works also include the realignment of existing overhead power lines and the construction of a new National Grid substation at Friston. The proposal is therefore that the Friston site will accommodate a substation for each of EA1N and EA2, and a new National Grid NSIP comprising a substation and cable sealing ends connected to the realigned overhead lines. The site at Friston extends to 46.28 hectares.
This development is part of a wider series of offshore wind farms known as the East Anglia Zone. The projects in the East Anglia Zone are the East Anglia ONE and East Anglia THREE windfarms (consented in 2014 and 2017 respectively), as well as EA1N and EA2, and future windfarm projects still to be brought forward. When the East Anglia ONE and East Anglia THREE windfarms were consented, the expectation (and requirement) was that their grid connection route (from Bawdsey to an existing National Grid substation at Bramford) would be used for the subsequent projects. Initially, both EA1N and EA2 had grid connection agreements for connection at Bramford and the East Anglia ONE project was required to make provision for future cable ducting to serve other windfarms. However, because of design changes, there was insufficient space within the consented cable corridor for the future connection of EA1N and EA2.
The projects in the East Anglia Zone were split between ScottishPower and Vattenfall, with ScottishPower retaining the EA1N, EA2 and East Anglia THREE projects. This resulted in a review by the National Grid of the proposed onshore connection site for EA1N and EA2 in 2017.
The Applicants' Environmental Statement (“ES”), Chapter 4, described the process of “Site Selection and Assessment of Alternatives”. The National Grid owns the electricity transmission network. The Electricity Act 1989 requires the National Grid to develop and maintain an efficient, co-ordinated and economical system of electricity transmission, whilst having regard to environmental matters. Similar requirements are contained in NPS EN-1 and the National Grid Guidelines. The selection of a site for connection to the National Grid is undertaken through the National Grid Electricity System Operator (“NGESO”) Connection and Infrastructure Options Note (“CION”) process. The CION process is the mechanism used to evaluate potential options for connecting to the transmission system, having regard to capital and operational cost, and technical, regulatory, environmental, planning and deliverability factors.
The CION review considered all realistic possible connection points,...
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