The King (on the application of) Aquind Ltd v Secretary of State for Business, Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven,Mrs Justice Lieven DBE |
| Judgment Date | 24 January 2023 |
| Neutral Citation | [2023] EWHC 98 (Admin) |
| Docket Number | Case No: CO/755/2022 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 98 (Admin)
Mrs Justice Lieven
Case No: CO/755/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Simon Bird KC and Mr Hugh Flanagan (instructed by Herbert Smith Freehills LLP) for the Claimant
Mr James Strachan KC and Mr Mark Westmoreland Smith (instructed by Government Legal Department) for the Defendant
Ms Celina Colquhoun (instructed by Portsmouth City Council) for the Interested Party
Hearing dates: 22 and 23 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 24 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
This is an application for judicial review under s.118(2) of the Planning Act 2008 (“PA”) of the decision of the Secretary of State for Business, Energy and Industrial Strategy (“SoS”) dated 20 January 2022 to refuse development consent for UK and UK marine elements of the AQUIND Interconnector.
The Claimant is AQUIND Limited, the promoter of the interconnector project. The project is a new 2,000MW subsea and underground bi-directional electric power transmission link between the south coast of England and Normandy in France. It would have the capacity to transmit up to 16,000,000MWh of electricity per annum, which equates to approximately 5% and 3% of the total consumption of the UK and France respectively.
Mr Bird KC and Mr Flanagan appeared for the Claimants, Mr Strachan KC and Mr Westmoreland Smith appeared for the Defendant, and Ms Colquhoun appeared for the Interested Party, Portsmouth City Council.
The application was considered by the Examining Authority (“ExA”) which produced a detailed report finding compliance with National Policy Statement (“NPS”) EN-1 and recommending approval. The ExA found that there was a need for the project and the harm found was outweighed by the need. The ExA considered alternatives which had been considered by the Claimant.
The Defendant considered the ExA report and made three Information Requests seeking further information on various issues. One of these related to the consideration that had been given to an alternative substation location at Mannington. Mannington, along with 9 other possible substations, had been considered by the Claimant at a much earlier stage, but had been rejected. The reasons for that rejection are contentious, but as a matter of fact, Mannington had been the substation which was intended to be used for a large offshore windfarm on the Solent called Navitus Bay. Navitus Bay was refused consent in September 2015.
The Defendant refused development consent for the interconnector on 20 January 2022. The sole ground for refusal was that the Claimant had failed to properly consider an alternative substation location at Mannington once Navitus Bay had been refused. The Defendant found that the Claimant had not properly considered alternatives and therefore the development should be refused.
Grounds of Challenge
The Claimant raises six grounds of challenge, the issues raised being whether in his determination to refuse development consent the Defendant:
(i) made or was misled by his officials into making a material error of fact as to the potential feasibility of Mannington as a grid connection point for the proposed development; (Ground 1a)
(ii) failed to take account of material evidence as to the feasibility of Mannington as a grid connection point; (Ground 1b)
(iii) failed to comply with the approach to decision-making mandated by section 104 PA; (Ground 2)
(iv) failed to apply his own NPS EN-1 policies to the proposed development; (Ground 3)
(v) failed in breach of his duty to take reasonable steps to inform himself as to the feasibility of Mannington so as to be able to discharge the requirements of section 104 PA; (Ground 4)
(vi) adopted a decision-making procedure which was procedurally unfair, causing the Claimant material prejudice; (Ground 5) and
(vii) failed to give proper, adequate and intelligible reasons for his decision (Ground 6).
Mrs Justice Lang granted permission for judicial review on all grounds.
The Facts
The interconnector is intended to bring electricity from France to link into the UK network. The nature of the project is that neither end point is fixed. In broad terms the elements of the project are the exit point on the French coast; the subsea cable; the landfall site in the UK; and the substation which allows the interconnector to link into the UK high voltage power network. Two important considerations in the planning of the scheme were the cost of the cable, and therefore the desirability of minimising length; and the need to minimise the crossing of busy shipping lanes. These factors, amongst others, led to a location near Le Havre for the landfall in France.
This then led to a consideration of potential landfall locations and substations along the English south coast, roughly between Hastings to the east and Weymouth to the west. Self-evidently the substations are fixed locations on the existing high voltage national transmission lines. There is a line which runs roughly parallel to the south coast, with the closest substation to Hastings being Bolney; a substation at Lovedean, north of Portsmouth and just outside the South Downs National Park; Mannington, north of Bournemouth; and Chickerell, north of Weymouth.
In December 2014 the Claimant requested National Grid Electricity Transmission (“NGET”) to undertake a Feasibility Study of potential connections to the National Grid for the Claimant's proposed interconnector. The NGET Feasibility Study has been treated as confidential throughout the process and neither the Defendant nor the Court has seen it. Information about the Feasibility Study was subsequently given by the Claimant through the development consent process.
On 11 September 2015 the Navitus Bay offshore windfarm was refused. Navitus Bay was a very large proposed windfarm located off the coast at Bournemouth and relied on a potential substation connection to the National Grid at Mannington.
In January 2016 the final version of the NGET Feasibility Study was produced. In February NGET made a connection offer to the Claimant in respect of Lovedean as the connection point for the Project into the National Grid. Lovedean lies to the north of Portsmouth just outside the South Downs National Park.
In March 2016 NGET produced the Connection and Infrastructure and Options Note (“CION”).
On 14 November 2019 the Claimant applied for development consent under the PA. The application was for a landfall location at Eastney, which is on the coast at Portsmouth, and a connection to the Lovedean substation.
The application documents included the Environmental Statement (“ES”). Volume 1 Chapter 2 of the ES is the “Consideration of Alternatives”. This sets out the process by which the landfall and substation locations were arrived at. In relation to the substation location, 2.4.2.1 refers to the NGET Feasibility Study, meetings between the Claimant and NGET, and the criteria that were applied (2.4.2.2). These include the proximity of the substation to the South Coast so as to minimise onshore cable length and associated environmental disruption from the cable installation.
At Plate 2.2 ten substation connection sites are identified within the search area. 2.4.2.4 says NGET discounted seven of these, including Mannington, and says:
“2.4.2.4. Utilising the above outlined criteria for the assessment and selection of the substation connection options, NGET discounted seven of the ten substations. This discounting was based on the limited thermal capacity of substations and/or feasibility to extend them to provide the required thermal capacity, and difficulties with access for the marine cable onto the shore and/or potential onshore cable routes.”
Chapter 2 goes on to explain in more detail why Chickerell and Bramley were rejected.
Section 2.4.2 considers potential landfall sites. There are 29 locations considered, from Bognor Regis in the east to West Bay (near Bridport) in the west. These are ranked on various criteria. It is worth noting that the landfall locations were assessed at the point when three substations (Lovedean, Bramley and Chickerell) were still under consideration. One of the criteria for selection was distance between landfall and connection, and the preference being for no more than 35km. Given that Chickerell lies well to the west of Mannington, the list of possible landfall locations when Chickerell was still being considered was likely to be similar to the position if Mannington had still been subject to consideration. In other words, there would not have been additional potential landfall locations in play if Mannington had been under consideration.
In the light of the decision to proceed with Lovedean, the landfall search narrowed to six locations within 35km of Lovedean, those being between Lee and Selsey, all lying to the east of the Solent.
On 19 February 2020 Portsmouth City Council (“PCC”) submitted representations, including raising concerns about the consideration of alternatives, but not referring to any specific alternative locations.
On 6 October 2020 the Claimant submitted the ES Addendum-Appendix 3 Supplementary Alternatives (“the Supplementary ES”).
The Supplementary ES
This is a critical document in the case and a number of sections are relevant:
a. 1.1.1.8 points to the linear nature of the project where the changing of one aspect impacts on another, with cross over between the...
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