Development Consent Order for the Norfolk Vanguard windfarm

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.