Substation Action Save East Suffolk Ltd, R (on the application of) v Secretary of State for Energy Security and Net Zero & Ors
[2024] EWCA Civ 12
Suffolk Energy Action Solutions SPV Limited, R (on the application of) v The Secretary of State for Energy Security and Net Zero
14 July 2023
[2023] EWHC 1796 (Admin)
High Court
Someone sued because they thought deals between wind farm builders and landowners stopped people from complaining. The judge said the process was fair, everyone could speak up, and the lawsuit was dismissed.
Key Facts
- •Suffolk Energy Action Solutions SPV Limited (SEAS) challenged the Secretary of State's decision to grant development consent orders (DCOs) for the East Anglia ONE North and East Anglia TWO offshore wind farms.
- •The core issue was whether the Secretary of State unlawfully dealt with SEAS's complaint that the developers ('IPs') stifled landowner objections through agreements requiring non-opposition.
- •The IPs negotiated with landowners, many signing Heads of Terms (non-binding) and later some Option Agreements (binding) containing non-opposition clauses.
- •SEAS argued the agreements had a 'chilling effect' on information provided to the examination, distorting the process.
- •The Secretary of State and the examining authority (Panel) concluded the process was fair, all affected persons had opportunities to be heard.
- •SEAS's challenge shifted from procedural unfairness to a failure to investigate the alleged 'chilling effect'.
Legal Principles
Planning Act 2008 provides a regime for NSIPs, with an inquisitorial examination process led by a Panel.
Planning Act 2008
Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 require a full EIA process, including consultation and consideration of all environmental information.
Infrastructure Planning (Environmental Impact Assessment) Regulations 2017
The 'Tameside' duty requires decision-makers to take reasonable steps to obtain relevant information; intervention is only justified if no reasonable authority could have been satisfied with the inquiries made.
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
A challenge based on failure to consider a relevant matter must show it was 'obviously material' or mandated by statute.
R (Lochailort Investments Limited) v Mendip District Council (2021) 2 P. & C.R. 9
Agreements with landowners to dispose of interests voluntarily, including non-opposition clauses, are not inherently unlawful.
Fulham Football Club Limited v Cabra Estates plc (1993) 65 P & CR 284
Outcomes
SEAS's application for judicial review was dismissed.
The court found no evidence of unlawful conduct. The Secretary of State's decision was lawful; the process was fair, and the alleged 'chilling effect' did not render the decision irrational. SEAS failed to demonstrate that the 'practical impact' factor was an obviously material consideration requiring investigation.
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