In R. (on the application of Substation Action Save East Suffolk Ltd) v Secretary of State for Energy Security and Net Zero, the appellant appealed against the refusal of its claims for judicial review of the Secretary of State's decision to make development consent orders for the construction of two wind farms and associated onshore and offshore development.
The Secretary of State had granted the applications for development consent orders to authorise two nationally significant infrastructure projects, namely a generating station, associated grid connection and substation, and a National Grid NSIP comprising substation, cable sealing ends and pylon realignment. The appellant represented local communities in East Suffolk who had significant concerns about the onshore location of the connection of the development to the National Grid.
The appellant stated that the Overarching National Policy Statement for Energy, the National Planning Policy Framework, and the Planning Policy Guidance required the Secretary of State to be satisfied that, when selecting the site for the proposed development, the applicant had applied a sequential test. The test required it to locate the development in an area which was not at medium or high risk of surface water flooding, unless there were no other sites reasonably available. The appellant also submitted that the Secretary of State should take into account an appraisal document provided by the applicants that assessed the effect of two potential projects that could connect with the new National Grid substation. The judge dismissed both grounds of challenge.
The appellant argued that the judged erred in their decisions by:
At appeal it was concluded that when interpreting national planning policy under the Planning Act 2008, statements of policy were to be read objectively in accordance with the language used. A distinction should be made between issues of interpretation of a policy and issues of planning judgement in the application of the policy.
The appeal judge also agreed that the judge was correct in finding that it was apparent from the relevant policies and guidance that the risk of flooding from surface water had to be taken into account at all stages as part of the aim of avoiding inappropriate development in areas at risk, and to direct development away from areas at highest risk.
The decision-maker had to be satisfied that a sequential approach had been applied at the site level to minimise risk and direct the most vulnerable uses to areas of lowest flood risk. However, it was a matter of planning judgement for the decision-marker as to how that was done, subject to review on public law grounds. The provisions of the policies and guidance did not require that, wherever there was a risk of flooding from surface water, an application for development consent had to demonstrate that there was no other reasonable available site with a lower risk of flooding.
It was also agreed that the judge was correct in finding that there was no irrationality or other public law error in the way in which the Secretary of State dealt with the issue. They were correct in finding that the applicants had considered surface flood water risk at all relevant stages of the process. It was concluded that it was artificial to try and separate a site selection from a design stage in this case. Site selection involved considering whether to select a site where parts of the infrastructure would be located in areas of lowest risk of flooding, and where suitable mitigation measures would be adopted to address the risk of surface water flooding where parts were located in an area of higher risk.
Provided the applicants ensured that the aim of preventing inappropriate development in areas of flood risk was addressed, that could be done by a combination of the location of parts of the project and by mitigation. The Secretary of State's conclusion was not irrational or otherwise unlawful and the judge did not make any factual error in the assessment of the evidence. They were not under any misapprehension that all the infrastructure proposed as part of the development was in an area of low risk of flooding from surface water. In any event, the decision-maker did not make any such error.
Regarding the appraisal document related to the potential future expansion or alteration of the National Grid substation necessary to accommodate the two proposed projects, when deciding whether to grant development consent, the Secretary of State was required under the Infrastructure Planning (Environmental Impact Assessment) Regulations SI 2017/572 to examine the environmental information and reach a reasoned conclusion on the significant effects of the proposed development based on that examination. The Secretary of State did not act in breach of SI 2017/572.
The information in the extension appraisal document was examined, but the examination did not affect their conclusion on the significant effects of the projects forming the subject of the development consent applications. The information was not directly relevant and was also not part of a cumulative impact assessment of those developments with the two other potential projects.
Where two or more linked sets of works were properly regarded as separate projects, the objective of securing environmental protection was sufficiently secured by considering the cumulative effects when the first project was assessed, so far as that was reasonably possible. A decision-maker could defer that consideration where, amongst other reasons, there was insufficient information on which a cumulative assessment could be based. Therefore, the Secretary of State's decision to defer assessment of the cumulative impacts of the project was rational and lawful because there was inadequate information available.
"The judge was correct in her interpretation of the policy and in finding that there was no irrationality or other public law error in the way in which the first respondent dealt with this issue when granting development consent".
"The first respondent was entitled to defer consideration of the effects of the other projects as there was insufficient information available to make an assessment. Such information as was available on the likely effects of other potential projects was not relevant to the assessment of the significant effects of the projects forming part of the applications for development consent in the present case".
The appeal was dismissed.
