The Environmental Law Foundation played a key role in the landmark decision this February in R (Pearce) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 326 (Admin) by which the High Court quashed the development consent order (“DCO”) granting permission for the Norfolk Vanguard windfarm. The claim was brought by Ray Pearce, a local resident whose home lies a matter of metres from the point at which long tunnels carrying power cables from two offshore windfarm developments (Norfolk Vanguard and Hornsea Three) would cross. For Vanguard, this tunnel would run more than 60km across Norfolk from the coast at Happisburgh to a large new substation on raised ground near the village of Necton where the power from the windfarm would be fed into the National Grid.
Vanguard is closely linked in a number of ways with a ‘sister’ windfarm project, Norfolk Boreas, for which a decision on development consent is pending. The cable tunnel permitted in the DCO was large enough to accommodate the cables for the Boreas windfarm as well as Vanguard. The Boreas windfarm would also connect to the Grid at Necton, doubling the size of the substations required there.
Mr Pearce engaged strongly throughout the examination process for Vanguard, arguing that the effects of the development on the landscape had not been properly assessed, that the Vanguard development (especially at Necton) could not be considered on its own without taking Boreas into account, and urging the Secretary of State to take a more strategic approach to consenting these windfarm developments. In particular, he urged an approach which connected multiple windfarms to an “offshore ring main”, which in turn has one landfall and one connection point to the National Grid, vastly reducing landscape impact which would be caused by each windfarm having its own cable tunnels and substations.
After the DCO was granted, Ray approached ELF for advice. Under ELF’s auspices, Michael Brett and Esther Drabkin-Reiter of Francis Taylor Building provided pro bono assistance, advice and drafting of pre-action correspondence. ELF then connected Ray to Thrings LLP, through which he instructed Michael Brett and Ned Westaway (also of Francis Taylor Building) to bring judicial review proceedings,
Mr Pearce argued that, under the relevant environment impact assessment (“EIA”) regulations, the Secretary of State ought to have considered the cumulative impacts from the onshore project substations for both the Vanguard and Boreas projects when determining the Vanguard application. The Secretary of State had refused to do so, saying that “because of the limited information available” on Boreas, the matter should be considered when Boreas was consented. Mr Pearce asserted that this deferral was unlawful (ground 1). He also argued that the reasons given for deferring the assessment of cumulative impacts were irrational (ground 2).
Upholding the claim on both grounds and declining to withhold relief, Mr Justice Holgate held that the cumulative impacts were significant effects that needed to be evaluated and that the Secretary of State’s justification for deferring assessment – “the limited information available” on the Boreas project – was not, on the facts of the case, lawful or rational. He articulated the essential principle as follows (at para.120 of the judgment):
“The effect of Directive 2011/92/EU, the 2009 Regulations and the case law is that, as a matter of general principle, a decision-maker may not grant a development consent without, firstly, being satisfied that he has sufficient information to enable him to evaluate and weigh the likely significant environmental effects of the proposal (having regard to any constraints on what an applicant could reasonably be required to provide) and secondly, making that evaluation.”
Not only is this the first time that an objector has successfully challenged a DCO and had it quashed, the judgment also provided a detailed restatement of principles of law relating to the proper approach to EIA in relation to cumulative and in-combination impacts, the assessment of which in decision-making has long been a source of contention. It is also the first judgment to consider this legal framework (which derives from EU law) after Brexit.
The Secretary of State must now reconsider the Vanguard DCO and factor that reconsideration into his decision on the pending application for consent for the Boreas windfarm. In the meantime, Ray’s persistent advocacy for a more strategic approach to windfarm development is gathering pace, with the establishment in July 2020 of the Government’s ongoing ‘Offshore transmission network review’ which is examining these matters in more depth and will report later this year.
The case is a great example of the important role ELF can play in significant environmental litigation, linking together members of the public with expert legal practitioners to achieve results with wide-reaching effects. Francis Taylor Building is delighted with the strong relationship it enjoys with ELF in this context.
UPDATE
ELF is delighted to report that the group we assisted in Cwmfelinfach, South Wales, the Lower Sirhowy Valley Residents Group, learnt yesterday that Natural Resources Wales have refused to grant an environmental permit for the proposed waste plant in their valley. When the group first came to ELF in August of last year, planning permission had already been granted and NRW were indicating that they were likely to grant an environmental permit in early September. Local residents had serious concerns over the health impacts of the proposed waste plant.
By the time the group came to ELF, they had already done a lot of work on the issue of emissions, much of it technical analysis of the applicant’s reports, and had a clear understanding of their own local environment notably the often seen weather event in their valley “temperature inversion”, a rare weather phenomena otherwise.
Local knowledge backed up by a determination to understand the technical reports, which led to them revealing many inconsistencies in the applicant’s reports, such as taking no account whatsoever of local conditions having made their readings from places as far away as 35 miles, meant the group did a phenomenal job in scrutinising the application. Quite soon it became clear that NRW had their own concerns with the application.
This is great example of where local people have the knowledge that outsiders do not have, when it comes to their local environment. And the tenacity to be undaunted by technical reports and to carefully consider them which resulted in their discovering problems with the application.
This morning we received an email from our contact from the group to say thanks to all at ELF who helped, the ELF professional members who we referred the work too – both Rory Hutchinson of JCP Solicitors and laterally Richard Buxtons solicitors.
“Counsellor Jan Jones and the group asked me to personally say thank you and Environmental Law Foundation for what you have done for us . . . the local pub was drunk dry yesterday evening from the village celebrating our good news!!”
More about this case below:
The Lower Sirhowy Valley Residents Group in Cwmfelinfach, South Wales, contacted ELF seeking help in assessing an environmental permit application from Hazrem Environmental Ltd. It wants to build a new waste processing facility to accept up to 100,000 tonnes of non-hazardous waste each year and turn it into fuel for incinerating power stations. Lorry diesel air pollutants will arise from hundreds of deliveries and collections each week, whilst the facility itself will generate high volumes of dust.
Planning permission for the building has already been granted.
Hazrem Environmental’s chosen location for the facility is a steep sided valley, well known for experiencing temperature inversions caused by cold drainage flow. Such inversions are a recurrent meteorological feature of valleys in the area, highly familiar to local people, which can trap cold air – and its pollutants – in a valley for days at a time.
The application took no account of these inversions and their potential to result in very high levels of pollutants. Its weather modelling used data from two weather stations, one on the coast at Rhose Airport, 35 miles away, the other on an open plain 7 miles away at Caerphilly.
Similarly, its air quality estimates – as the group only discovered six months after the granting of planning permission – used bias adjusted figures not from where the facility will be located, but from Caerphilly and Blackwood where, again, the topography bears no resemblance to the proposed location of the new facility.
Public Health Wales, responding as statutory consultee, has warned, “We would therefore recommend that the Regulator [Natural Resource Wales] exercise caution in considering the granting of a Permit”.
This case illustrates how difficult it can be for communities (and planning authorities and lawyers) to identify and challenge technical reports. With this in mind, ELF have begun discussions with our university partners about the possibility of involving technical and scientific departments, in their ELF clinics.
If practical, this would significantly boost the ability of communities to assess and present hard evidence on matters such as air and water quality, geological and biological impacts, and noise. Please get in touch if you can help us progress this initiative.
The photo shows a temperature inversion over Islwyn Road, Wattsvile at 8.30am – rush hour traffic. This area already exceeds the recommended level of air pollution.
Community Benefit Society R4C have lodged a complaint with the Competition and Markets Authority (CMA) that the contract for a Stroud incinerator is in breach of competition rules.
As highlighted previously, R4C was set up following a long campaign against proposals for the Javelin Park incinerator, finally given permission by Gloucestershire County Council (GCC) in 2015.
When the planning appeal and the legal challenge were lost local objectors decided to take a different tack and R4C proposed its own alternative, commercially sustainable recovery and recycling plant. The contract, originally signed in 2013 and then renegotiated in 2015, for the £500 million incinerator was awarded to Urbaser Balfour Beatty although details on pricing and information on termination were only made public following an Information Tribunal ruling in March this year (2017).
In light of this information, and after seeking assistance from Counsel through ELF member, Duncan Sinclair of 39 Essex Chambers, R4C lodged a complaint with the CMA on 21st March that the Javelin Park contract breaches the Competition Act 1998.
R4C believe that the exclusive contract is anti-competitive and prevents technological innovation, imposing a huge financial burden for years to come. They state that:
- the price paid by GCC for waste disposal for a minimum amount is 10 times the next tranche, thereby creating ‘de facto’ exclusivity and foreclosing the market for waste treatment (including eliminating incentives to recycle/move higher up the waste hierarchy);
- there are excessive termination costs thereby enforcing the ‘lock-in’; and
- the 25-year contract prevents newer, cheaper and more efficient/environmentally friendly alternatives developing to the detriment of consumers in terms of not only price but also their interest in the environment (both local and more broadly).
On 31st March R4C published independent analysis of the Javelin Park contract at an event at the Guildhall, where the actor Jeremy Irons spoke in support of the report.
If the complaint is upheld the contract could be declared void and GCC would face financial penalties.
ELF was contacted by Community R4C, a Community Benefit Society, set up in the wake of planning approval in 2015 for a local incinerator. The group had been campaigning since 2009 against Gloucestershire County Council’s plans to build an incinerator in their local area. When approval was granted and a judicial review of the decision by Stroud District Council was unsuccessful, they decided to take a different tack.
Instead of fighting the County Council they decided to propose their own better, cheaper and cleaner Resource Recovery, Recycling and Refining Centre, and undermine the incinerator through “market forces”.
This plant would take the waste processed to a higher level of waste management, with 90% of waste recycled. The proposed plant would cost between £15-22m to build, compared with around £200m for the incinerator and their process will retrieve around 25% recyclates from black bag waste and produce a clean renewable pelletised biofuel. The plant, once up and running, would give Community R4C a share of the profits up to £250k per year to support other circular economy projects.
The group approached us concerning issues of procurement. Although this is not an area of the law that ELF sees very often we are pleased to say that Duncan Sinclair at 39 Essex Chambers has agreed to assist the group.
ELF is delighted to help this group. To see such positive action come out of a locally environmentally damaging decision, reminds of us why ELF works hard to help communities across the country to protect the environment and quality of life of current and future generations.
pdate from Save Druridge September 2016 – The Highthorn Planning Application has been “called in” by the Secretary of State. This means that the Secretary of State has decided to take over the decision making process on this application from the local authority as it sees that the application may conflict with policy on a national level or that the decision is of national importance.
ELF was able to assist the community with drafting their call in letter and is delighted that this matter has been called in by the Secretary of State. We will be working with the Save Druridge community going forward towards the inquiry. Some of the issues identified for exploration include whether the proposal is consistent with government policy on climate change, conserving and enhancing the natural environment, sustainable extraction and government policy on replacing coal fired power stations. All these matters were raised in our letter before action. We would also wish to congratulate the group on a truly inspiring campaign!
“Many thanks to everyone at ELF in helping to achieve this momentous achievement, I don’t think we would have managed without you” Duncan Lawrence
June 2016 – The Planning Officer in charge of the Highthorn Planning Application will be recommending approval of the application with conditions attached.
What do locals do when they wish to protect sites from quarrying?
In Northumberland, a local community group called ‘Save Druridge’ is campaigning to protect Druridge Bay and its pristine coastline from the plan to develop Highthorn opencast coal mine, which would be the largest in the country.
Part of the case being made for the site is based on an agricultural restoration plan. A lot of quarrying has taken place in the area in the past; but the sites have been restored post-operation with immense benefits for local species, the environment and local residents.
Druridge Bay is now also the habitat of pink-footed geese and many other species that are likely to flee if the development goes ahead.
The project not only seems to contradict Amber Rudd’s speech last year stressing the importance of phasing out of coal to lessen the UK’s contribution to climate change; it is also likely to adversely impact the health of locals through air and noise pollution. Despite these consequences, public consultation has been limited and accounts on the many adverse environmental impacts of the mine on local people ignored.
The development process in Druridge puts into question the strength of restoration plans as environmental protection tools: the need to preserve local ecosystems often seems like a paper exercise, easily overridden at the post-quarrying stage by developers. Considering this lack of safeguards, Save Druridge’s approach is to reject the project fully.
The campaign has received support from Green Party leader Natalie Bennett. The RSPB and Wildlife Trust have shared very strong objections to the development project. The ever brilliant Stephanie McGibbon, environmental consultant and network member of ELF is assisting the community in responding to the public consultation. If you would like more information on the case please follow links to the very active Save Druridge website, Twitter and/or Facebook page (closed group).
Photo by Christine Westerback.
UPDATE October 2015
It has been discovered via the group’s Environmental Information Regulation (EIR) requests that there was an INES (International Nuclear and Radiological Event Scale) Level 1 event in September 2014. The group subsequently asked for a copy of the report which, to date, has not been provided by the ONR (Office of Nuclear Regulation) within the legal time limits and the group has now sought internal review of this decision making process.
To see more, please visit: Stop Nuclear Dumping In Blackwater Estuary Facebook Page
In May 2014, ELF assisted a client with the assistance of the ever-brilliant Andrew Parkinson at Landmark Chambers. With Andrew’s drafting, ELF wrote to the Environment Agency (EA) to seek their intervention to prevent permitted fuel element debris (FED) nuclear waste discharges into the Blackwater Estuary in Essex. With Special Areas of Conservation (SACs), Special Protection Areas (SPAs) Ramsar* and now a newly designated Marine Conservation Zone (MCZ) within the Estuary, plus much marine leisure activity, there are very real concerns over the environmental impacts which the EA has deemed safe. With new information that has come to light through a series of Environmental Information Regulation (EIR) requests, and with advice from marine consultant Terri Portman, ELF is once again seeking to assist the client to prevent more imminent discharges. Whilst the EA has answered a series of questions under the EIRs, questions remain unanswered over whether the Habitats Regulations and its required assessments, need to be carried out again. As with the Whitsand Bay case, we are seeking to unravel the processes and make sure that, according to the Habitats Regulations, the appropriate assessments have been conducted.
Discharging fuel element debris into the estuary involves first dissolving the ends of fuel rods used in nuclear power station reactors in acid to bring them within levels of radioactivity deemed safe, then discharging the FED waste with each high tide.
*There is, incidentally, an excellent guide to the various site designations which (theoretically, at least) protect the UK’s natural heritage through statute – Joint Nature Conservation Committee.
Photo courtesy of The Wildlife Trusts
ELF was contacted by a Parish Councillor of Heighington, Lincoln. They were seeking urgent assistance on the public consultation that was taking place for the Lincolnshire Waste & Minerals draft policy, and in particular the policy on hydrocarbons (i.e. fracking). A means of delivering local policy for the next 10 years on how the county deals with its waste and minerals extraction, the draft is a very important document. Alarmed by the apparent blanket acceptance of its wording in relation to hydrocarbons – indicating an assumption in favour of development – local people sought ELF’s help in investigating the legality and soundness of the proposed policy.
With in-house guidance and a last minute but crucial intervention (at midnight) from Richard Turney at Landmark who had written a previous paper on the National Planning Policy Framework and Fracking, ELF was able to deliver guidance which, our local contact proclaimed, identified “some fundamental issues”.
ELF was approached by a local person living in a small hamlet called Steeple Gidding in rural Essex, concerned at local planning department’s decision not to require a local zoo to carry out a wildlife survey on the latest of a series of wind turbine applications. A previous planning application for two turbines was given consent without the requirement for a wildlife survey despite there being a nearby Site of Special Scientific Interest (SSSI) particularly noted for its rare bat species.
As bats are known to have a wide foraging range and to be impacted by wind turbines, it was a surprising decision. When an application was received last year for an extension to the wind turbine development, by adding two further turbines, the ELF enquiry did expect that a wildlife survey would be required. ELF was able to place this matter with Matt Gilks of Dutton Gregory for some advice.