755: High Court rejects pylon challenge
Today’s entry reports on a Planning Act 2008 court case.
On Tuesday judgment was issued on a challenge to the decision to grant development consent for the North Wales Wind Farms Connection project.
The full judgment can be found here. It contains a few issues that are of general application so read on for a summary.
The challenge was launched by John Mars Jones on his own behalf and on behalf of ‘Pylon the Pressure Group’ – geddit? The promoter of the project was SP Manweb, part of Scottish Power.
The issue surrounded the proximity of the proposed (wooden) pylons to the partly Grade II* listed Berain Farm. (Note there are three levels of listed buildings in increasing order of importance: Grade II, Grade II* and Grade I so this is a fairly important one). Four grounds of challenge were raised.
The first ground was that having decided that there was no substantial harm to the listed buildings from the development, the decision-maker should have weighed up overall harm with overall benefit. Not surprisingly, the report of the three inspectors who examined the application does do that (although in a different place from the harm specifically) since that is the main test for granting development consent.
This also applies to project promoters – as long as you show you have had regard to a factor, you get a wide scope for your conclusion on it. It is omitting to say you have had regard to something that would be at fault.
As a side point, the promoter introduced a late time limit of the development of 30 years, which helped to reduce the harm on the listed buildings.
The second ground was about alternatives. To what extent should inspectors consider alternatives not proposed by the project promoter? The alternative not considered here was putting the line underground when it went past the listed buildings.
The judge decided that there was no duty to consider alternatives not before the panel. If they had decided there was substantial harm to the listed buildings, they would have recommended refusal, they didn’t have to come up with an alternative. Besides, partial undergrounding would have required terminal poles at the ends of the underground section, and these had not been environmentally assessed. That does slightly leave open the possibility of recommending a lesser proposal that is within the environmental assessment.
Of course, it is easier to go for an alternative than refuse consent altogether, so you might say the lack of an alternative made the grant of consent slightly more likely, but that is a gamble for the promoter to take.
The third ground was that adequate reasons were not given on the consistency with National Policy Statements. The judge effectively said ‘oh yes they were’ in one short paragraph.
The fourth ground, another interesting one, was that having time-limited the development to 30 years at a late stage, the Development Consent Order (DCO) still sought to extinguish land rights permanently. The inspectors’ report considered this issue in relation to the creation of new rights, but not the extinguishment of existing rights (paragraphs 8.12.148-150 – that was not given in the judgment and took a bit of finding, particularly as almost every objector’s name is Jones).
The judge essentially concluded that it was a very small issue and not of real controversy, a parallel issue was considered, and this one was only raised by one person (not the claimant), so was not a breach of the duty to give reasons.
Another incidental point: the inspectors say:
‘the only options available to the Applicant, in this case, are either the CA [compulsory acquisition] of permanent rights or temporary possession (the latter not being CA)’.
It may be possible, although not tried to my knowledge, to compulsorily acquire for a limited period, i.e. by creating a lease. When it comes to existing rights it is possible to suspend, rather than extinguish them. There is also the Crichel Down rule that the government undertakes to use, where it offers back land that is no longer needed to the previous owner in the first instance.
So another High Court challenge to a DCO fails, keeping up the 100% record. The only successful challenge was to a refusal to grant a DCO (for the Preesall gas storage project), so there was no DCO in that case.
The decision was on 28 July 2016, so it has taken nearly 10 months to get from that to the judgment, not that fast.