The King on the application of Suffolk Energy Action Solutions SPV Ltd v The Secretary of State for Energy Security and Net Zero
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] EWHC 1796 (Admin) |
| Docket Number | Case No: CO/1696/2022 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 1796 (Admin)
THE HON. Mr Justice Holgate
Case No: CO/1696/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe KC and Celina Colquhoun (instructed by Leigh Day) for the Claimant
Mark Westmoreland Smith and Jonathan Welch (instructed by Government Legal Department) for the Defendant
Hereward Phillpot KC and Hugh Flanagan (instructed by Shepherd and Wedderburn LLP) for the Interested Parties
Hearing dates: 23–24 May 2023
APPROVED JUDGMENT
Introduction
The claimant, Suffolk Energy Action Solutions SPV Limited, brings this application for judicial review under s.118 of the Planning Act 2008 (“the 2008 Act”) against the decision on 31 March 2022 by the Secretary of State for Business, Energy and Industrial Strategy (“SSBEIS”) to make the East Anglia ONE North Offshore Wind Farm Order 2022 (SI 2022 No. 432) and the East Anglia TWO Offshore Wind Farm Order 2022 (SI 2022 No. 433) under s.114 of that Act. With effect from 3 May 2023 the relevant functions of SSBEIS have been transferred to the Secretary of State for Energy Security and Net Zero.
The Orders grant development consent to the interested parties (“the IPs”), East Anglia ONE North Limited and East Anglia TWO Limited, to construct and operate two wind farms off the Suffolk coast. The IPs are subsidiaries of ScottishPower Renewables (“SPR”).
The central issue in this case is whether the SSBEIS acted unlawfully in dealing with a complaint by SEAS that the IPs “stifled” or “neutralised” the ability of landowners facing possible compulsory purchase to present objections to and information about the scheme.
The offshore works for East Anglia ONE North would comprise up to 67 wind turbine generators (“WTGs”) with a maximum tip height of 282m and up to 4 electrical platforms, an operation and maintenance platform, cables linking the WTGs and the platforms, and two cables for exporting the electricity to a landfall north of Thorpeness, Suffolk. The onshore works include the laying of underground cables running from the landfall to a new substation at Grove Wood, Friston plus a new National Grid substation and overhead realignment. The offshore works for East Anglia TWO would comprise up to 78 WTGs, up to 4 electrical platforms, an operation and maintenance platform, cables linking the WTGs and the platforms, and two cables for exporting the electricity to the same landfall. The onshore works for East Anglia TWO are similar to those for East Anglia ONE North. The onshore cable route is approximately 9km in length and affects an Area of Outstanding Natural Beauty.
The Orders also authorise the compulsory acquisition of land, in particular land needed for the onshore works, from 55 different owners.
East Anglia ONE would deliver about 2.5TWh/year and East Anglia TWO 2.9TWh/year of zero carbon renewable electricity. Together they would deliver about 7.5% of the UK's cumulative deployment target for renewable energy in 2030.
Suffolk Energy Action Solutions (“SEAS”) is an unincorporated body set up in 2019. Its members are drawn from Aldeburgh, Snape, Friston and neighbouring villages and towns. Their object is to protect areas of the coast and countryside said to be threatened by the scheme. SEAS supports renewable energy including the proposed offshore works in this case. But it contended that the defendant should refuse development consent for the onshore works because of their impact on people, the countryside and the environment. SEAS submitted that better solutions could and should be found for bringing onshore the electricity generated by wind farms in the North Sea. On 4 February 2022 members of SEAS incorporated the claimant as a special purpose vehicle to bring this claim.
East Anglia ONE and East Anglia TWO are both Nationally Significant Infrastructure Projects (“NSIP”) within Part 3 of the 2008 Act. They were therefore subject to Parts 4, 5 and 6 which impose planning control through the requirements for obtaining a development consent order (“DCO”). The two projects were the subject of individual applications dated 15 October 2019, which were then handled together by the Planning Inspectorate and the SSBEIS.
The SSBEIS appointed a panel of five Inspectors (“the Panel”) to conduct the Examination of the applications under chapter 4 of Part 6 of the 2008 Act. The Examination began on 6 October 2020 and was completed on 6 July 2021.
SEAS participated in the Examination both by making written representations and by contributing to “issue specific hearings” (“ISH”).
The proposals involved “EIA development” for the purposes of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 572) (“the 2017 Regulations”). Accordingly, the proposals were subject to the process of environmental impact assessment (“EIA”). This included the preparation of Environmental Statements by the IPs, consultation with statutory consultees, public notification, requests by the Panel for further information and taking into account all the environmental information obtained in the decisions on whether or not to make the DCOs.
The Panel's Report on each application was submitted to the SSBEIS on 6 October 2021. Much of those reports was common to both. The court was taken mainly to relevant passages in the Report and the decision letter on East Anglia ONE North and only key paragraphs in the decision letter on East Anglia TWO.
Initially, the claimant said that if it were to succeed in its claim for judicial review, it would only ask the court to quash the parts of each DCO which relate to the onshore works. However, upon reflection it agreed with the defendant and the IPs that the court could not make an order severing the DCOs in that way. The claimant therefore asks the court to quash the whole of the DCOs.
This challenge arises from the need for the IPs to acquire areas of land. It is a longstanding policy of Government that compulsory purchase should be a last resort after the promoter of a scheme has sought to acquire the necessary land by agreement with the landowners affected. In September 2013 the then Department for Communities and Local Government issued “ Planning Act 2008: Guidance related to procedures for the compulsory acquisition of land.” Paragraphs 25 and 26 state:
“25. Applicants should seek to acquire land by negotiation wherever practicable. As a general rule, authority to acquire land compulsorily should only be sought as part of an order granting development consent if attempts to acquire by agreement fail. Where proposals would entail the compulsory acquisition of many separate plots of land (such as for long, linear schemes) it may not always be practicable to acquire by agreement each plot of land. Where this is the case it is reasonable to include provision authorising compulsory acquisition covering all the land required at the outset.
26. Applicants should consider at what point the land they are seeking to acquire will be needed and, as a contingency measure, should plan for compulsory acquisition at the same time as conducting negotiations. Making clear during pre-application consultation that compulsory acquisition will, if necessary, be sought in an order will help to make the seriousness of the applicant's intentions clear from the outset, which in turn might encourage those whose land is affected to enter more readily into meaningful negotiations.”
The IPs therefore appointed Dalcour Maclaren Limited in April 2018 to act as their land agents inter alia to negotiate the grant of access rights and sales by 55 landowners (referred to in s.59 of the 2008 Act as “affected persons”). They prepared the Book of Reference which accompanied the application for the DCO and gave details of each of the relevant interests to be acquired. They also provided updates during the Examination on the progress being made with negotiations.
In his witness statement Mr. Henry Hyde, a director of Dalcour Maclaren, explains that the majority of landowners instructed independent land agents. In the second half of 2019 through to January 2020 negotiations took place on a generic draft Heads of Terms. An independent solicitor at Taylor Vinters reviewed those terms on behalf of the landowners and negotiated alterations. SPR was responsible for her fees. On 14 February 2020 the majority of the landowners signed a final version of the Heads of Terms.
By the end of the Examination statutory undertakers had reached agreements with the IPs and withdrawn their objections. But most of the property interests affected belong to private landowners. By the end of the Examination many had signed Heads of Terms with the IPs, but none had signed formal Option Agreements. By the time the decision letter was issued only two Option Agreements had been completed (on 2 March 2022).
The IPs' Statement of Reasons to justify the grant of powers of compulsory purchase (published on 9 October 2019) included information on the numbers of landowners who had appointed agents and had signed Heads of Terms and the progress made with negotiations. This was updated from time to time. The final version was issued on 7 June 2021. The IPs supplied more information on these matters for each landowner in a Schedule of Objections. This too was updated from time to time. The last version was dated 5 July 2021. The iterations of both documents were available to SEAS as an interested party entitled to see documents in the Examination (rule 21 of the Infrastructure Planning (Examination...
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