The Court of Appeal has ruled that an applicant of a proposed development in an area with risk of flooding from surface water does not need to demonstrate that there are no other sites reasonably available where the proposed development could be located instead.
In R (on the application of Substation Action Save East Suffolk Ltd) v Secretary of State for Energy, Security and Net Zero and others [2024] EWCA Civ 12; [2024] PLSCS 15, the court rejected an appeal against the decision that refused a claim for judicial review relating to two development consent orders granted by the secretary of state.
The DCOs authorised two nationally significant infrastructure projects, which were the two substations at Friston linked to the East Anglia One North and East Anglia Two wind farms off the Suffolk coast.
The judicial review challenge was based on two grounds. First, the relevant policies required the submission of a sequential test, which according to the claimants required the applicant to place the development in an area that is not at medium or high risk of surface water flooding unless there are no other sites available. Secondly, there was no assessment of the cumulative effects of the development together with other potential projects nearby, namely the “Nautilus” and “Eurolink” schemes.
The claim was dismissed by the High Court, and subsequently appealed by the claimants.
On the first ground of appeal relating to surface flood risk, the Court of Appeal considered that, while the Overarching National Policy Statement for Energy, National Planning Policy Framework and Planning Policy Guidance have provisions stating that areas with lower flood risk should be preferred, none of these policies require demonstration that there is no site reasonably available with a lower risk of surface water flooding.
The only objective of the sequential approach at site level is to minimise risk by directing most vulnerable developments to areas of lowest flood risk, but the way this is achieved is strictly a matter of planning judgement. Additionally, it was concluded that the High Court was correct in finding that surface flood water risk had been considered at all relevant stages of the process, and it would be artificial to seek to separate out a site selection from a design stage.
On the second ground of appeal relating to cumulative effects, the Court of Appeal provided that the case law on this matter is already well-established. While the assessment of cumulative effects is necessary for two or more linked sets of separate projects, a decision-maker “may defer consideration of the cumulative effects arising from future projects where, amongst other reasons, there was not any adequate information on which a cumulative assessment could be based”. As the Nautilus and Eurolink schemes have not been implemented yet, it was considered that the decision of the secretary of state to defer the assessment of cumulative effects was rational and lawful.
The case centred on the proper interpretation of paragraphs 159 to 167 of the 2021 version of the NPPF, but the latest version of this framework is substantially the same, making this ruling still relevant for the current version.
Stefano D’Ambrosio is a solicitor in the planning and environmental team at Irwin Mitchell
