Precedents Cited

The judgment references several key cases and statutory provisions that underpin the Court's reasoning:

• R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] PTSR 190: Provided a comprehensive account of the Planning Act 2008 provisions, particularly sections 31 and 104 concerning development consent and national policy statements.
• R (Zurich Assurance Ltd (t/a Threadneedle Property Investments)) v North Lincolnshire Council [2012] EWHC 3708 (Admin): Explored the application of the sequential test in planning decisions, though the Court found it inapplicable to the present case’s context.
• Hale Bank Parish Council v Halton Borough Council [2019] EWHC 2677 (Admin): Similar to the Zurich case, it was examined to determine the applicability of sequential testing under varying policy wordings.
• Wathen-Fayed v Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 92 (Admin): Discussed the discretion of decision-makers in applying flood risk assessments, supporting the view that policy guidelines allow for planning judgment discretion.
• R (Larkfleet Ltd) v South Kesteven District Council [2016] Env. LR. 76: Highlighted that cumulative effects assessments could be deferred if insufficient information is available.
• Pearce v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 326 (Admin): Reinforced the principle that decision-makers may defer cumulative impacts assessments when future project information is lacking.
• R (Scarisbrick) v Secretary of State for Communities and Local Government [2017] EWCA Civ 787: Articulated principles for interpreting national planning policies, distinguishing between policy interpretation and planning judgment.

Legal Reasoning

The Court of Appeal meticulously dissected the legal frameworks governing planning decisions, focusing on the Planning Act 2008, the National Policy Statement for Energy (EN-1), the National Planning Policy Framework (NPPF), and the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017.

Sequential Test Application

The sequential test, as outlined in EN-1 and referenced in the NPPF and Planning Practice Guidance (PPG), mandates that new developments be directed towards areas with the lowest flood risk. Specifically, it prioritizes Flood Zone 1 (low risk) before considering Zones 2 (medium risk) and 3 (high risk), only applying the Exception Test when no suitable lower-risk sites are available.

The appellant argued that this test should encompass all sources of flooding, including surface water, necessitating a demonstration of no available lower-risk sites for any flood source. However, the Court clarified that the existing sequential test primarily addresses fluvial flooding, and the policies do not explicitly require a site-by-site demonstration for non-fluvial flood risks. The judge’s interpretation, upheld by the Court, emphasized that while surface water flood risks must be considered, the application allows for planning judgment to assess mitigation measures alongside site selection.

Cumulative Impacts Assessment

The appellant contended that the Secretary of State failed to assess the cumulative environmental impacts of additional projects (Nautilus and Eurolink) connected to the substation. The Court upheld the lower court’s decision that the failure was not a legal breach. It reasoned that since these projects were not yet sufficiently defined or approved, a comprehensive cumulative impacts assessment was impractical and therefore lawfully deferred.

The Court reinforced the principle from R (Larkfleet Ltd) v South Kesteven District Council and Pearce v Secretary of State, recognizing that decision-makers have the discretion to defer cumulative assessments when future projects lack requisite detail, ensuring compliance with environmental assessment regulations without necessitating premature or speculative evaluations.

Impact

The judgment has significant implications for future planning and environmental assessments, particularly in the renewable energy sector:

• Clarification of Sequential Test Scope: Reinforces that the sequential test, while comprehensive in addressing flood risks, primarily targets fluvial flooding. Planners retain discretion in managing non-fluvial flood risks through mitigation rather than rigid site exclusion.
• Cumulative Impacts Flexibility: Affirms that cumulative impacts assessments for future or potential projects can be lawfully deferred, provided there is insufficient information to undertake a meaningful assessment. This provides flexibility in planning processes, accommodating the evolving nature of large infrastructure projects.
• Planning Judgment Authority: Upholds the authority of decision-makers to apply planning judgments within the framework of existing policies, emphasizing that not all policy interpretations are subject to legal challenge unless there is clear irrationality or legal misapplication.
• Encouragement of Renewable Energy Projects: By dismissing the appellant’s grounds, the judgment supports the continued development of renewable energy infrastructure, which is critical for national energy security and climate goals.

These principles ensure that while environmental safeguards are maintained, the planning system remains adaptable to complex and interdependent infrastructure projects.

The Sequential Test

The sequential test is a method used in planning to determine the most suitable location for a development project by prioritizing areas with the lowest risk of flooding. It follows a hierarchy:

1. First Preference: Areas with low flood risk (Flood Zone 1).
2. Second Preference: If no suitable sites are available in Zone 1, areas with moderate flood risk (Flood Zone 2) may be considered.
3. Third Preference: Only if no suitable sites exist in Zones 1 or 2, areas with high flood risk (Flood Zone 3) may be used, subject to additional assessments (Exception Test).

This test ensures that development avoids or minimizes flood risks as much as possible, enhancing safety and sustainability.

Cumulative Impacts Assessment

Cumulative impacts refer to the combined environmental effects of multiple projects or developments in a particular area. An assessment evaluates how these projects collectively influence factors like ecology, water management, and community well-being. In this case:

• Existing Projects: Current and approved projects whose impacts have already been assessed.
• Future Projects: Potential or proposed projects that may soon be developed.

The key issue was whether the existing projects (EA1N and EA2) should have included assessments of potential future projects like Nautilus and Eurolink. The Court clarified that if sufficient information about future projects is not available, it is lawful to defer their inclusion in cumulative assessments.

Environmental Impact Assessment (EIA)

An EIA is a process used to evaluate the environmental consequences of proposed projects before they are carried out. It involves:

• Identifying potential environmental impacts.
• Assessing their significance.
• Proposing measures to mitigate adverse effects.

In this judgment, the focus was on whether the environmental information related to future projects was sufficiently robust to require its inclusion in the EIA for EA1N and EA2. The Court found that the provided information was insufficient, justifying its exclusion from the cumulative impacts assessment.