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R (on the application of Mars Jones) v Secretary of State for Business, Energy and Industrial Strategy [2017] EWHC 1111 (Admin)

DATE: 05 Jun 2017

This was a claim for judicial review of the North Wales Wind Farms Connection Order 2016 which granted development consent for the construction of a 132 kiloVolt electricity line - approximately 17.4 kilometres in length which was to run above ground. The electricity line is a Nationally Significant Infrastructure Project (NSIP) that will provide a grid connection to a number of wind farms, one of which is itself an NSIP.

The electricity line was to pass to the west of Berain Farm which was owned by the claimant, Berain Farm comprises Grade II* listed buildings of historic and architectural importance. In particular it was the birth place of Katheryn of Berain ‘the mother of Wales’.

The Secretary of State accepted the recommendation of the panel (which had been appointed to examine the application) that the order should be made. Development consent was granted for 30 years, and certain private rights which the claimant had over neighbouring land were permanently extinguished by art.23 of the order.

The court was asked to determine the following questions:

1. Did the Defendant misinterpret policy EN-1 in that he considered that it was only necessary to consider if the proposed development would cause substantial harm to the setting of Berain and failed to consider the presumption in favour of the conservation of designated heritage assets and failed to weigh the harmful impact on the significant heritage assets at Berain against the public benefit of the development as required in particular by paragraph 5.8.15 of EN-1?

2. Given that the Defendant accepted that there were serious concerns over the landscape and visual impacts of the development, did the Defendant consider, and have available to him the necessary information to assess the alternative of partial undergrounding, that is placing the electricity line underground in the vicinity of Berain, having regard in particular to paragraph 2.8.4 of EN-5 and, in addition, did he have regard to that matter when considering the impact of the proposal on the setting of the listed buildings at Berain?

3. Did the Defendant give adequate and intelligible reasons for his conclusions on the application of the relevant policies in EN-1 and EN-5?

4. Did the Defendant give adequate reasons for providing a power in Article 23 of the Order to extinguish private rights permanently when consent for the development itself would expire after 30 years?

Lewis J refused the claimant’s application.

1. The panel's report demonstrated that it had carried out the balancing exercise contemplated by paras 5.8.14 and 5.8.15 of EN-1 in a logical fashion, identifying that there would be harm but that the harm would not be substantial. The panel had weighed the benefits of the proposed development against the harm to the setting of the farm that it had identified would occur and the Secretary of State agreed with its findings and conclusions. Further, he stated that there was “a compelling case for granting the development consent” and that the case for the development was not outweighed by the potential adverse impacts of the development and that granting consent would be consistent with EN-1 and EN-5 (at [52]). The Secretary of State did not just look at whether the harm caused by the proposed development would be substantial. Further, the Secretary of State had complied with the obligation in the Infrastructure Planning (Decisions) Regulations 2010 reg.3 to have regard to the desirability of preserving a listed building or its setting. The panel had expressly referred to the duty in its consideration of the historic environment. The expiry of consent after 30 years meant that the impact upon the setting was minimized as “the impact would last for a limited period which would not be a substantial proportion of the life of the buildings. Implicit in that approach, in my judgment, is a concern for the desirability of preserving the setting of the listed building” (at [53]).

2.  The panel had considered that there would be serious concerns in relation to the landscape and visual impacts of the proposed development. It was therefore “alive to the issue and to the question of alternatives” (at [56]). However, it concluded that it could not grant consent for a development involving placing part of the electricity line underground as that had not been part of the application.

60….. the panel concluded that, in relation specifically to landscape and visual impacts, the "balance of benefits from undergrounding would not clearly outweigh the extra economic impacts that would be incurred": see paragraph 5.2.102 of the report. It reached that conclusion having regard to what it saw as the landscape and visual impacts of the proposed development (which affected, essentially, the whole route) and referred back to section 4.5 in relation to the costs of undergrounding. Furthermore, the panel also expressly considered the question of whether the electricity line should be placed underground in the vicinity of Berain in paragraph 4.5.95 of the report. It stated that the panel had given specific consideration in the context of the historic environment to the prospect of undergrounding sections of the route in the vicinity of Berain but reached the conclusion, having regard to various factors, including costs associated with the alternative, that that would not be justified. Furthermore, that was a logical place to consider that question: section 4.5 of the report was dealing with alternatives to an overhead line. The fact that the reasoning is brief and included in that section of the report in relation to historic environment could not, in my judgment, lead to any inference that the matter had not been considered.

3. The panel gave “adequate, intelligible reasons for its conclusions”. The Secretary of State agreed with those conclusions and findings and “said that his reasons for granting the consent were those identified by the panel”. He had complied with the obligation in the Planning Act 2008 s.116 (at [63]).

4. The court held that “as a matter of principle, the inclusion of a power such as that contained in Article 23 of the Order is capable of being lawful” by virtue of section 120, and Schedule 5 to the 2008 Act (at [68]).  The inclusion of the permanent extinction of private rights when the development consent expired in 30 years did not necessarily make the inclusion of Article 23 in the Order unlawful or necessarily disproportionate. It was “possible to envisage situations in which the permanent extinguishment of a right, consequent upon the compulsory acquisition of another right … is necessary” (at [63]). The panel had considered whether the provisions in art.23 should be included in the order and whether to recommend their inclusion in perpetuity (at [70]). In terms of reasons, this “was not a principal issue. It was not important in terms of the issues raised or matters on which representations made. It was not an issue of real controversy. …. It would not, in my judgment, be correct to regard the absence of any specific mention of the power of extinguishment of private rights as a breach of section 116 of the 2008 Act” (at [71]).

Richard Moules appeared for the Secretary of State for Business, Energy and Industrial Strategy, instructed by the Government Legal Department