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Home / News and Insights / Blogs / Planning Act 2008 / 931: Aquind interconnector application refused despite inspectors’ recommendation

Today’s entry looks at the decision on the Aquind interconnector DCO application.

One day before the decision deadline following two postponements, the Secretary of State for Business, Energy and Industrial Strategy has refused the application for a Development Consent Order to build the proposed Aquind electricity interconnector between France and the UK.

The main reason for refusal is one that I find quite surprising and could be far-reaching: the applicant should have re-assessed an alternative that was on its longlist originally, but the main reason for dropping it no longer applied.

We’re not talking about a minor amendment to the route, either, but connecting to a different substation that would have meant the entire cable being relocated some 15 miles to the west. And we’re not talking about an alternative that was better, either, but one whose merits were unknown.

The Secretary of State considered that the applicant should have assessed a route connecting to the Mannington substation in Dorset, rather than the Lovedean substation in Hampshire that the application version used. The former had been dropped as an option because originally its spare capacity was to be taken up by the Navitus Bay offshore windfarm, but that was abandoned after being refused in 2015. The applicant did know that the bagging of substation capacity had been abandoned by early 2016, nearly four years before the application was made.

The justification for this in the decision letter is to acknowledge that alternatives are material in exceptional circumstances only, but they existed in this case because of the adverse impacts from the proposed route running through a very densely populated area. I’m not sure that I follow that logic – the adverse impacts of the project might outweigh the benefits on their own, but I don’t see how the existence of an unassessed alternative can tip the balance. The panel of three inspectors had recommended that the project be given consent.

The decision letter quotes paragraph 4.4.3 of the overarching energy National Policy Statement EN-1, which says that potential alternatives should, wherever possible, be identified before an application is made. However paragraph 4.4.1 of the NPS says ‘this NPS does not contain any general requirement to consider alternatives or to establish whether the proposed project represents the best option’ and later in 4.4.3 it says ‘alternative proposals which are vague or inchoate can be excluded on the grounds that they are not important and relevant to the IPC’s decision’.

I have long said that unless there are considerations that legally require the examination of alternatives, such as habitats impacts, which there weren’t in this case, an application stands or falls on its own merits, even if there is a better alternative. You don’t have to promote the best project possible, just one where its benefits outweigh its adverse impacts, to get consent.

I stand by that, although the recent High Court case that resulted in the quashing of the A303 Stonehenge DCO was based on the lack of consideration of an alternative because it was ‘so obviously material’ that it should have been considered (albeit by the Secretary of State as decision-maker rather than the applicant, who had considered it), so perhaps that qualifies the general principle to some extent.

The decision letter does not go through the impacts of the project like a positive one would, although it does consider habitats issues, and also says that the fibre-optic cable included in the project was associated development rather than part of the Nationally Significant Infrastructure Project, despite what the section 35 direction might imply, because communications is not a field that can be part of an NSIP. Fair enough, although not much turns on that.

The project was certainly controversial, with a number of local MPs weighing in with submissions, which are acknowledged in the decision letter, as was its backer, as noted in this Guardian article. 

Aquind have six weeks to challenge the decision, should they choose to do so. Of six DCO applications to be refused to date, two have been challenged, one successfully (the Preesall Gas Storage project) and one unsuccessfully (the Mynydd y Gwynt onshore windfarm). You could say that the Kemsley DCO was a refusal challenge as well, because although a DCO was granted, part of the project was removed and that part was challenged. The challenge was unsuccessful but I thought the reasoning was pretty strange; I understand the applicant is seeking leave to appeal to the Court of Appeal.

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