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 – Appellant applying for judicial review – Application dismissed – Appellant appealing – Whether sequential test for flood risk properly taken into account and applied – Whether development consent orders unlawful – Appeal dismissed
The appellant applied for judicial review, pursuant to section 118 of the Planning Act 2008, of the decisions of the first respondent secretary of state to make two development consent orders under section 114 of the 2008 Act (on the application of the second and third respondents) for the construction of two offshore wind farms with associated onshore and offshore development.
Both orders authorised two nationally significant infrastructure projects (NSIPs), namely a generating station and associated grid connection and substation, and a National Grid NSIP comprising substation, cable sealing ends and pylon realignment. The project substations, and the National Grid NSIP, were to be located at Friston in Suffolk.
The appellant was a company limited by guarantee formed 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, although it did not object to the offshore wind farms.
The judge dismissed the application holding that the express aim of planning policy was to ensure that the risks of flooding from all sources, including surface water, were taken into account at all stages of the planning process; and it had been a lawful exercise of planning judgment for the first respondent to conclude that the flood risk assessment was appropriate for the development in all the circumstances. The claimant appealed arguing, amongst other things, that the judge erred in regarding the application of the sequential test for flood risk as a lawful exercise of planning judgment when no sequential approach had been applied at all: [2022] EWHC 3177 (Admin); [2022] PLSCS 209.
Held: The appeal was dismissed.
(1) There were no provisions of the National Policy Statement for Energy (NPS EN-1) which required that, where there was a risk of flooding from surface water, an applicant for development consent had to demonstrate that there was no site reasonably available with a lower risk of surface water flooding. EN-1 did not require such an exercise to be carried out. The decision-maker would have to be satisfied that a sequential approach had been applied at site level to minimise risk by directing the most vulnerable uses to areas of lowest flood risk. How that was to be achieved, and whether the decision-maker could be satisfied that that had been done, involved issues of planning judgment in the application of the policy in EN-1.
Similar considerations applied to the relevant paragraphs of the National Planning Policy Framework (NPPF) and Planning Practice Guidance (PPG). It was clear that the aim underlying the policy on planning and flood risk was to ensure that inappropriate development was avoided in areas at risk of flooding by directing development away from areas of highest risk. At paragraph 162, the NPPF recognised that the aim of the sequential test was to steer new development to areas with the lowest risk of flooding from any source; and referred to development not being allocated or permitted if there were reasonably available sites in areas with a lower risk of flooding. That was a reference to the sequential test as defined in EN-1 and was applicable to areas subject to fluvial flooding.
(2) 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. How that was done was a matter of planning judgment for the decision-maker subject to review on public law grounds. The relevant provisions of EN-1, the NPPF and the PPG 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 reasonably available site with a lower risk of flooding.
The judge was correct to find that the first and second respondents had considered surface flood water risk at all relevant stages of the process. That was considered in the preliminary environmental information report, the environmental statement and the various notes and documents provided by the respondents during the decision-making process. Furthermore, it was artificial to seek to separate out a site selection from a design stage on the facts of this case. The process of site selection involved considering whether to select a site where parts of the infrastructure would be 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 for development consent 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 judge interpreted the policy properly and correctly found that there was no irrationality or other public law error in the way in which the first respondent dealt with that issue when granting development consent.
(3) Regulation 21(1)(a) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 required the first respondent, when deciding whether to make an order granting development consent to examine the environmental information. Regulation 21(1)(b) provided that the first respondent then had to reach a reasoned conclusion on the significant effects of the proposed development taking into account that examination.
The first respondent was entitled to defer consideration of the effects of other potential projects as there was insufficient information available to make a cumulative impact assessment. The appraisal document produced in respect of potential further projects was “environmental information” but not “further information” as defined in regulation 3 of the EIA Regulations 2017. 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.
Richard Turney and Charles Bishop (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the appellant; Mark Westmoreland Smith and Jonathan Welch (instructed by the Government Legal Department) appeared for the first respondent; Hereward Phillpot KC and Hugh Flanagan (instructed by Shepherd and Wedderburn LLP) appeared for the second and third respondents.
Eileen O’Grady, barrister
