Jones, R (on the application of) v The Secretary of State for Business, Energy and Industrial Strategy, Court of Appeal - Administrative Court, May 16, 2017, [2017] EWHC 1111 (Admin)

Issuing Organization:Administrative Court
Actores:Jones, R (on the application of) v The Secretary of State for Business, Energy and Industrial Strategy
Resolution Date:May 16, 2017
 
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Case No: CO/4571/2016

Neutral Citation Number: [2017] EWHC 1111 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN WALES

Llangefni County Court

Llangefni, Anglesey

Date: 16/05/2017

Before :

THE HONOURABLE MR JUSTICE LEWIS

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Between :

(1) SP MANWEB PLC

(2) CONWY COUNTY BOROUGH COUNCIL

(3) DENBIGHSHIRE COUNTY COUNCIL

Interested Parties

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Mr Peter Dixon (instructed by Guthrie Jones and Jones) for the Claimant

Mr Richard Moules (instructed by Government Legal Department) for the Defendant

Mr Mark Westmorland Smith (instructed by Pinsent Masons LLP) for the First Interested Party

The second and third interested parties did not appear and were not represented

Hearing dates:10 and 11 April 2017

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JudgmentTHE HONOURABLE MR JUSTICE LEWIS:

INTRODUCTION

  1. This is a claim for judicial review of the North Wales Wind Farms Connection Order 2016 (``the Order'') as amended by the North Wales Wind Farm Connection (Correction) Order 2017. The Order granted development consent for the construction of a 132 kiloVolt (``kV'') electricity line, approximately 17.4 kilometres in length which was to run above ground. The work authorised includes the construction of up to 225 double wood pole supports to carry the necessary cabling. The electricity line will pass to the west of Berain Farm which is owned by the Claimant, Mr Mars Jones. Berain Farm is a working farm which encompasses Grade II* listed buildings of historic and architectural importance.

  2. The Claimant contends that the Order is unlawful. He contends first that the Defendant failed to determine the application in accordance with the relevant national policy statement as required by section 104(3) of the Planning Act 2008 (``the 2008 Act''). In this regard, he contends that the Defendant failed to have regard to the presumption in favour of conserving designated heritage assets and wrongly treated the appropriate test as being whether the proposed development would cause substantial harm, rather than assessing the significance of the heritage asset and weighing the benefits of the proposed development against the harm to the heritage asset. Furthermore, he contends that, having found that the proposed development raised serious concerns in relation to its landscape and visual impact, the Defendant did not have sufficient information to assess, and did not properly assess, alternatives including, in particular, placing the line underground rather than above ground in the vicinity of Berain. Secondly, the Claimant contends that the Defendant failed to consider whether it was necessary and proportionate to grant the undertaker the power permanently to extinguish certain rights as provided for by Article 23(1) of the Order in circumstances where the development consent expired after 30 years. Finally, he contends that the Defendant failed to give adequate reasons for his conclusions on these issues.

    THE LEGAL FRAMEWORK

    The Legislative Framework

  3. The 2008 Act deals with the process of granting consent for certain developments defined as nationally significant infrastructure projects. Section 31 of the 2008 Act provides that consent is required for development which is, or is part of, a nationally significant infrastructure project. Such projects are defined in Part 3 of the 2008 Act and include ``the installation of an electric line above ground'' wholly in Wales unless the expected voltage of the line is expected to be less than 132 kV (see sections 14(1)(b) and 16 of the 2008 Act).

  4. Applications for orders granting development consent must be made to the Secretary of State (see section 37 of the 2008 Act). There is a procedure for consultation upon, and the publication of, a proposed application and a requirement for the applicant to have regard to the responses (see sections 41 to 49 of the 2008 Act). Following that process, the application for development consent is then made to the Secretary of State. The application must include, amongst other things, a document referred to as a book of reference which includes the names and addresses of each person in respect of which land is proposed to be subject to powers of compulsory acquisition of rights and also the names of those entitled to enjoy easements or other private rights which it is proposed should be extinguished, suspended or interfered with (see paragraphs 5 and 7 of the Infrastructure Planning (Applications: Prescribed Forms and Procedure Regulations 2009 (``the 2009 Regulations'')). Once an application is made and accepted by the Secretary of State, there is provision for notification of the application to local authorities, other bodies and prescribed persons (see section 56 of the 2008 Act). There is also provision for the publication of the fact that an application has been made and details as to how persons may make representation in relation to the application (see regulation 9 of the 2009 Regulations).

  5. The Secretary of State may appoint a panel to carry out the function of examining the application and making a report setting out findings, conclusions and recommendation: see sections 61 and 74 of the 2008 Act.

  6. In terms of dealing with an application for development consent, the Secretary of State may designate a statement as a statement of national policy for the purposes of the 2008 Act: see section 5 of the 2008. Act. There are two relevant national policy statements in the present case: the Overarching National Policy Statement for Energy (EN-1) (``EN-1'') and the National Policy Statement for Electricity Networks Infrastructure (EN-5) (``EN-5'').

  7. The Secretary of State must have regard to a national policy statement and must decide an application for development consent order in accordance with any relevant national policy statement unless, amongst other things, the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh the benefits of the proposed development (see section 104(1), (3) and (7) of the 2008 Act). Where the application affects a listed building or its setting, the Secretary of State must also have regard to the desirability of preserving the listed building or its setting (see regulation 3 of the Infrastructure Planning (Decisions) Regulations 2010 (``the 2010 Regulations'')).

  8. When the Secretary of State has decided an application, he is required to make an order granting or refusing development consent: see section 114 of the 2008 Act. He must also prepare a statement of reasons for deciding to make an order granting development consent: see section 116 of the Act.

  9. An order granting development consent may impose requirements in connection with the development and ``may make provisions relating to, or to matters ancillary to the development for which consent is granted'' including, in particular, the matters set out in Part 1 of Schedule 5 to the 2008 Act: (see section 120(3) and (4) of the 2008 Act). The provisions that are listed in Part 1 of Schedule 5 to the 2008 Act include, so far as material:

    ``1. The acquisition of land, compulsorily or by agreement.

  10. The creation, suspension or extinguishment of, or interference with interests in or rights over land (including rights of navigation over water), compulsorily or by agreement.

    .....

    ``36. The payment of compensation.''

  11. Further provision relating to the compulsory acquisition of land is included in Part 7 of the 2008 Act.

    The Relevant National Policy Statements.

  12. EN-1 deals with national policy for energy infrastructure. Section 3.3 of EN-1 deals, in particular, with the need for new nationally significant electricity infrastructure projects. It explains the importance of electricity in terms of meeting a significant proportion of overall energy need and addresses the question of ensuring sufficient electricity generating capacity is available. Paragraph 3.7.10 of EN-1 provides as follows:

    ``3.7.10 In the light of the above, there is an urgent need for new electricity

    transmission and distribution infrastructure (and in particular for new lines of

    132 kV and above) to be provided. The [Secretary of State] should consider that

    the need for any given proposed new connection or reinforcement has been

    demonstrated if it represents an efficient and economical means of

    connecting a new generating station to the transmission or distribution

    network, or reinforcing the network to ensure that it is sufficiently resilient

    and has sufficient capacity (in the light of any performance standards set by

    Ofgem) to supply current or anticipated future levels of demand. However, in

    most cases, there will be more than one technological approach by which it

    is possible to make such a connection or reinforce the network (for example,

    by overhead line or underground cable) and the costs and benefits of these

    alternatives should be properly considered as set out in EN-5 (in particular

    section 2.8) before any overhead line proposal is consented.''

  13. General points are dealt with in section 4 of EN-1. Paragraph 4.1.2 provides, in part that:

    ``Given the level and urgency of need for infrastructure of the types covered by the energy NPSs set out in Part 3 of this NPS, the [Secretary of State] should start with a presumption in favour of granting consent to applications for energy NSIPs. That presumption applies unless any more specific and relevant policies set out in the relevant NPSs clearly indicate that consent should be refused.''

  14. Section 5 of EN-1 deals with the assessment of the impacts of proposed development and section 5.8, in particular, deals with the assessment of adverse impacts on the historic environment. The material provisions for present purposes (footnotes omitted) are as follows:

    ``5.8.12 In considering the impact of a proposed development on any heritage

    assets, the [Secretary of State] should take into account the particular nature of the significance of the heritage...

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