Suffolk Energy Action Solutions SPV Limited, R (on the application of) v The Secretary of State for Energy Security and Net Zero
[2023] EWHC 1796 (Admin)
Substation Action Save East Suffolk Ltd, R (on the application of) v Secretary of State for Energy Security and Net Zero & Ors
17 January 2024
[2024] EWCA Civ 12
Court of Appeal
This case was about building two big wind farms. People worried about flooding and the impact of other possible projects. The court said the government made a reasonable decision, balancing the need for renewable energy with concerns about local impacts. They clarified that dealing with flooding can sometimes involve fixing things rather than just picking a different spot.
Key Facts
- •Appeal against refusal of judicial review of development consent orders for East Anglia One North and East Anglia Two Offshore Wind Farms.
- •Concerns focused on onshore substation location at Friston, Suffolk, specifically flood risk and cumulative effects with other projects (Nautilus and Eurolink).
- •Appellant argued insufficient sequential testing for flood risk and failure to consider the Extension Appraisal document.
- •Respondents argued planning judgment was involved in applying sequential test and insufficient information existed for cumulative impact assessment.
Legal Principles
Interpretation of national planning policy under the Planning Act 2008 requires an objective reading within context; distinguishing between policy interpretation (judicial) and application (decision-maker's judgment).
R (Scarisbrick) v Secretary of State for Communities and Local Government [2017] EWCA Civ 787 at paragraph 19
The sequential test primarily addresses fluvial flood risk (from rivers), not surface water. Policies require considering surface water flood risk, but application is a matter of planning judgment.
EN-1, paragraphs 5.7.3, 5.7.4, 5.7.9, 5.7.13; National Planning Policy Framework (Framework) paragraphs 159, 162; Planning Policy Guidance (PPG) paragraphs 7.018, 7.019
EIA Regulations 2017 require examination of environmental information, but not necessarily reliance on all information when reaching conclusions on significant effects. Cumulative assessment can be deferred if insufficient information is available on future projects.
Infrastructure Planning (Environmental Impact Assessment) Regulations 2017, regulation 21(1)(a), (b); regulation 3; Schedule 4 paragraph 5(e); R (Larkfleet Ltd) v South Kesteven District Council [2016] Env. LR. 76; Pearce v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 326 (Admin)
Outcomes
Appeal dismissed on both grounds.
The court found the Secretary of State's decisions were rational and lawful. The sequential test for flood risk was applied appropriately as a matter of planning judgment, considering both site location and mitigation measures. Deferring cumulative impact assessment due to insufficient information on future projects was also justified.
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