Last reviewed 17 January 2022

On 18 February 2021, the High Court gave judgement in this case where a local resident applied for judicial review of a decision to grant development consent for a wind farm.

The Facts

Mr Pearce (P), a local resident, applied for an order for judicial review to quash the decision of the secretary of State for Business, Energy and Industrial Strategy (BEIS) to grant development consent for Norfolk Vanguard Ltd (NVL) for the Norfolk Vanguard wind farm (Vanguard). This is said to be one of the largest offshore wind projects in the world. This project was closely linked with a second wind farm, the Norfolk Boreas development (Boreas) in the area and it was proposed that they should share onshore infrastructure which included a substation. This involved a cable route carrying high voltage current for 60 kilometres to the substation.

The application for development consent included an environmental statement which assessed the cumulative landscape and visual impacts arising from the projects and concluded that there were likely to be significant adverse environmental effects.

P’s application for judicial review included the following points:

  • NVL planned to build 2 substation extensions immediately adjacent to the village of Necton, comprising 4 buildings, each of which was 19 metres high, 110 metres long and 40 metres deep.

  • Rural Norfolk was under threat from plans to impose lasting environmental damage through the construction of massive inland substations with hundreds of kilometres of cable trenching.

  • All the offshore wind farms could connect to the electricity grid by way of an integrated offshore cable network known as the Offshore Ring Main (ORM).

The issues were whether the secretary of state had breached the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009, which transposed Directive 2011/92 into United Kingdom law, by excluding the cumulative impact of both projects on the Vanguard application. Further, the secretary of state’s decision not to consider the cumulative impacts was irrational and the reasons given were inadequate.

Decision

  • The application was granted.

  • The effect of Directive 2011/92, the 2009 Regulations and case law was that, as a matter of law, a decision maker could not grant a development consent without being satisfied that he had sufficient information to enable him to evaluate and weigh the likely significant environmental effects of the proposal, having regard to any limitations on what an applicant could reasonably be required to provide.

  • This decision was a matter of judgment for the decision maker. In the present case, the secretary of state had accepted the assessment that the cumulative impacts were substantial.

  • This was not a case where he could lawfully defer consideration of those impacts to a subsequent application on the basis that they were insignificant.

  • The secretary of state had acted in breach of the 1992 Regulations by failing to evaluate the cumulative effects of the Vanguard and Breas substation development which had been assessed as likely to have adverse environmental effects.

  • If there was a discretion to depart from the general principle and defer the evaluation of a significant adverse environmental effect, the decision maker could only do so on rational grounds, and which satisfied the objectives and requirements of the environmental impact legislation.

  • Where projects were linked, the cumulative effects of both projects had to be evaluated. In the present case, the secretary of state’s statement that the information on Boreas was limited was illogical or irrational.

  • The application must now go back to the Secretary of State for reassessment.

Comment

A spokesperson for the Department of Business, Energy and Industrial Strategy is reported to have commented that they were disappointed by the outcome but would be considering the judgment carefully before deciding next steps.

The Vattenfall country manager made the following comments on behalf of NVL.

  • The company was disappointed with the result.

  • The ruling related to the process for granting consent and was not about the merits of its world class Norfolk Vanguard project.

  • It was vital that the Government now acted to redetermine consent with regard to the ruling, as quickly as possible.

  • In that way the company could continue to invest in the region and remain on track to begin generating low cost, renewable electricity by the late 2020s.

  • With the expansion of offshore wind that was required for the UK to reach net zero by 2050, the planning process needed to be able to address and resolve issues much sooner and avoid the uncertainty about whether projects would proceed even after they had planning approval.

Mr Pearce is reported to have made the following comments.

  • The decision showed that the UK planning process was working properly.

  • Planning applications cannot be railroaded through. There were laws and processes which needed to be followed.

  • The decision was power to the people of Norfolk who the courts agree were wronged.

  • Alternative ways of connecting offshore wind farms, like those being explored in the BEIS led review of offshore transmissions, need to be explored.

In April 2021, BEIS sent a letter to all interested parties in this matter. The letter included the following points.

  • Following the judgment which quashed the secretary of state’s decision to grant development consent for the Norfolk Vanguard project, the secretary of state would now take steps to redetermine the application.

  • The secretary of state was therefore writing to all interested parties to set out a process to remedy the failure to assess the cumulative landscape and visual impacts of the Vanguard and Boreas projects.

  • The secretary of state now intends to proceed to make an evaluation of any harm which might derive from the landscape and visual proposals to locate the substation at Necton and of the weight to accorded to those impacts, taking into account the cumulative effects with the Norfolk Boreas project.