Town and country planning – Development consent order – National policy statement – Interested party obtaining development consent for two wind turbine projects comprising offshore and onshore development – Claimant applying for judicial review – Whether development consent orders unlawful – Whether flood risk from surface water properly taken into account – Whether insufficient weight given to harm to heritage assets – Application dismissed
The claimant applied for judicial review, pursuant to section 118 of the Planning Act 2008, of the decisions of the defendant secretary of state to make two development consent orders under section 114 of the 2008 Act, on the application of the interested parties, for the construction of two offshore wind farms with associated onshore and offshore development at Friston in Suffolk.
The claimant was a company limited by guarantee formed by a number of local residents in East Suffolk to represent communities in the area. There were significant concerns in the local community about the onshore location of the connection of the development to the National Grid. It was that element of the development which was the subject of the application; the claimant did not object to the offshore wind farms.
The claimant contended, among other things, that:
(i) the defendant erred in his assessment of the adequacy of the applicants’ flood risk assessment, and in his overall assessment of flood risk, in that the sequential test, properly applied, required assessment of all sources of flooding at the stage of site selection. Further, the defendant did not properly apply the sequential test at the stage of site selection, rather than at the stage of design after site selection, and he otherwise acted irrationally in reaching his conclusions on flood risk;
(ii) the defendant had relied on an unlawful interpretation of regulation 3 of the Infrastructure Planning (Decisions) Regulations 2010 concerning the preservation of heritage assets and consequently failed to give sufficient weight in the planning balance to the heritage harm identified in the examining authorities’ report.
Held: The application was dismissed.
(1) The policies on flood risk at the date of the examining authorities’ report were the National Policy Statement for Energy (NPS EN-1) and the National Planning Policy Framework (February 2019 edition) (NPPF). The Planning Practice Guidance (PPG) contained guidance on the application of the NPPF.
NPS EN-1 provided that the aims of planning policy on development and flood risk were to ensure that flood risk from all sources of flooding was taken into account at all stages in the planning process to avoid inappropriate development in areas at risk of flooding.
The specific guidance on the application of the sequential test only referred to the location of projects in different flood zones which were designated on the basis of the risk of fluvial flooding, not surface water or other sources of flooding, and so they were not a sufficient means of assessing surface water flood risks. Therefore, it was a matter of judgment for an applicant, and ultimately the decision-maker, as to how to apply the sequential test to flood risks from other sources, such as surface water.
(2) The NPPF and the PPG required surface water flooding to be taken into account when considering location of development, as part of the sequential approach but, beyond that, there was no further direction as to exactly how surface water flooding was to be factored into the sequential approach. It was a matter of judgment for the applicant and the decision-maker as to how to give effect to the policy appropriately, in the particular circumstances of the case.
The defendant accepted that all sources of flooding had been considered and was satisfied that the applicants had applied the sequential test as part of site selection. He concluded that the flood risk assessment was appropriate for the application, in all the circumstances. That was a lawful exercise of planning judgment, in which the defendant recognised that the relevant policies and guidance required surface water flood risks to be taken into account when considering the location of development, as part of the sequential approach, but left it to the decision-maker to determine when and how that should be done. The defendant’s conclusion was not irrational.
(3) Applying the principles in Howell v Secretary of State for Communities and Local Government [2014] EWHC 3627 (Admin), the duty “to have regard”, in regulation 3 of the 2010 Regulations, required the decision-maker to take into account the “desirability of preserving the listed building or its setting or any features of special architectural or historic interest which it possesses”. It did not include the higher duty found in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to treat a finding of harm to a listed building as a consideration to which the decision-maker had to give “considerable importance and weight” when assessing the planning balance.
The relevant policy in NPS EN-1 did not equate to the NPPF policy on heritage assets. The defendant had power to vary the policy tests to be applied, and to specify the nature of the duty to have regard in more detail. Since the weight to be accorded to the heritage harm was not prescribed by statute, the defendant was not required by law to apply “considerable importance and weight” to the heritage harm in the planning balance: Howell applied.
(4) As a general principle, there was no legal requirement that all benefits which were given weight in a planning balance had to be formally secured in order to be treated as material considerations. In this case, the decision to give weight in the planning balance to the generating capacity was a matter of judgment for the defendant.
The decision in R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2021] EWHC 2161 (Admin); [2021] PLSCS 140 did not establish as a principle of law that, in any case where a proposed development would cause adverse effects but those were held to be outweighed by its beneficial effects, the existence of alternative sites inevitably became a mandatory material consideration. That was an over-simplification of the Stonehenge decision, and the preceding body of case law. Further, the case law indicated that consideration of alternative sites would only be relevant to a planning application in exceptional circumstances.
Richard Turney and Charles Bishop (instructed by Richard Buxton Solicitors) appeared for the claimant; Mark Westmoreland Smith and Jonathan Welch (instructed by the Government Legal Department) appeared for the defendant; Hereward Phillpot KC and Hugh Flanagan (instructed by Shepherd and Wedderburn LLP) appeared for the interested parties.
Eileen O’Grady, barrister