Court Upholds Planning Decision in Dispute Over Offshore Wind Farm Projects' Environmental Impact

Citation: [2024] EWCA Civ 12
Judgment on

Introduction

The case of Substation Action Save East Suffolk Ltd v Secretary of State for Energy Security and Net Zero & Ors involves a dispute over the planning and environmental impact assessment of two nationally significant infrastructure projects (NSIPs) related to the construction of offshore wind farms and associated onshore development, including a substation in Suffolk, UK. The appellant, representing local residents, raised issues pertaining to flood risk and cumulative impacts of the planned developments.

Key Facts

In the proceedings, the appellant contested the decisions to grant development consent orders for the East Anglia One North (EA1N), and East Anglia Two (EA2) offshore wind farms, focusing on the associated onshore substation and grid connection elements. Concerns were raised about surface water flooding and the assessment (or lack thereof) of cumulative impacts involving other potential projects.

The legal principles at stake revolved around the Planning Act 2008, the National Policy Statement for Energy (EN-1), the National Planning Policy Framework, the Planning Policy Guidance, and the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017.

Two central issues were under scrutiny:

  1. Whether a sequential test was properly applied in determining the suitability of the site in respect to surface water flood risk, with the appellant arguing that developments in areas of risk must demonstrate no reasonable alternative sites with lower risk.

  2. Whether the decision-maker should have considered the potential cumulative impacts of the projects alongside other future projects, such as the Nautilus and Eurolink schemes, despite the lack of detailed information available for a comprehensive assessment.

The court’s analysis centered on the interpretation of policy requirements concerning flood risks and the application of those policies by decision-makers using planning judgment, subject to judicial review on public law grounds. Additionally, the case considered the requirements under environmental regulations for assessing and incorporating the impact of other existing, approved, or future projects in the decision-making process for development consent.

In this context, the court referenced other relevant case laws, including R (Scarisbrick) v Secretary of State for Communities and Local Government [2017], R (Larkfleet Ltd) v South Kesteven District Council [2016], and Pearce v Secretary of State for Business, Energy an Industrial Strategy [2021], to elucidate the principles of policy interpretation and the scope of cumulative impact assessments.

Outcomes

The Court of Appeal upheld the initial decision, concluding that the relevant policies did not require an applicant for development consent to demonstrate the absence of reasonably available alternative sites with lower surface water flood risk. The judgment emphasized that the potential risk from surface water flooding was considered during the site selection and design process, involving mitigation measures to minimize flood risk and taking the risk into account as a matter of planning judgment.

Regarding the assessment of cumulative effects, the court found that the first respondent did not act irrationally or unlawfully by deferring consideration of other potential projects’ impacts due to insufficient information. It was established that the examination of environmental information did not necessarily imply reliance on it when reaching a conclusion on the significant effects of the development at hand.

Conclusion

In Substation Action Save East Suffolk Ltd v Secretary of State for Energy Security and Net Zero & Ors, the Court of Appeal affirmed the application of established planning and environmental policies and procedures, providing clarity on the scope and application of sequential testing in flood risk assessment and the threshold for cumulative impact analysis in national infrastructure projects. The ruling reinforces the importance of planning judgment and judicial deference to the rationality and lawfulness of decision-makers when interpreting environmental assessments and policy directives.