High Court quashes refusal of development consent for energy project

Judgment was handed down in the High Court today by Mrs Justice Lieven in the case of R (on the application of AQUIND Limited) v Secretary of State for BEIS and others [2023] EWHC 98 (Admin). Mrs Justice Lieven found in favour of the Claimant, AQUIND Limited, represented by Herbert Smith Freehills LLP. The judgment results in the quashing of the decision of the Secretary of State to refuse development consent for the AQUIND Interconnector.

The proceedings related to AQUIND's application for development consent to build an electric power cable between the south coast of England and Normandy in France. The cable would have the capacity to transmit approximately 5% and 3% per annum of the total consumption of electricity of the UK and France respectively. The Planning Inspectorate's examination of its application began in September 2020 and concluded in March 2021. Following the examination, in January 2022, the Secretary of State for BEIS ultimately decided to refuse development consent for the project on the basis of AQUIND's assessment of an alternative to the proposed route of the cable, located in Mannington, Dorset. This decision was held to be unlawful.

The case centred on the issue of alternatives and the claim was successful on 4 out of 7 grounds, as follows:

1. Failure to take into account relevant evidence relating to alternatives;
2. Failure to discharge the duty of the decision-maker to have regard to any relevant national policy statement under section 104 of the Planning Act 2008;
3. Failure to apply policies in the Overarching National Policy Statement For Energy (NPS EN-1) relating to the assessment of alternatives; and
4. Breach of the Tameside duty of the decision-maker to take reasonable steps to acquaint themselves with the relevant information so as to be able to discharge their statutory duties.

On the Secretary of State's failure to comply with the Planning Act 2008 and Overarching National Policy Statement For Energy (NPS EN-1), Mrs Justice Lieven stated that: "If the SoS was going to rely upon the failure to properly consider an alternative, as he did here, then he had to do so applying the policy approach in EN-1 4.4.3; or explaining why he intended to depart from the policy. It is a trite proposition that an applicant for development consent is entitled to rely on policy, particularly in this statutory scheme, an NPS, and if the decision maker wishes to depart from it, he has to explain why."

In relation to the requirement of the Tameside duty in this case, Mrs Justice Lieven held that the Secretary of State had acted irrationally in failing to make proper inquiries, stating that: "the ExA had found a strong need case in favour of the development which clearly outweighed the harm found. The consequence of this was that in the ExA’s view there was a significant public interest in the development. It should be noted that the Claimant contended, and the ExA accepted, that the development could meet 4-5% of the UK’s electricity need with the obvious public benefits that would follow. The level of this public benefit meant that any reasonable SoS would have inquired into the feasibility and viability of Mannington before rejecting the development on the purely speculative basis that it might provide an alternative to Lovedean."

The decision as to whether to grant Development Consent for the AQUIND Interconnector will now be remitted back to the Secretary of State, who will reconsider the position and take a fresh decision.