Government hit with judicial review after excluding onshore wind from energy policy

The High Court has granted the Good Law Project permission to challenge the Department for Energy Security and Net Zero's decision to exclude onshore wind from its policy on energy infrastructure.

The legal campaign group argued that the decision to omit onshore wind was made without giving any reasons and went against a recommendation from the National Infrastructure Commission, which said the green energy technology should be added to the list "as soon as possible".

The Energy National Policy Statements (NPSs) set out the Government's policy for the delivery of energy infrastructure and provide a legal framework for planning decisions and named onshore wind as a type of "nationally significant renewable energy infrastructure".

However, in 2016, the Government removed onshore wind from the list of nationally significant renewables.

In a consultation on the existing Energy NPSs conducted in 2021, the department received responses urging the inclusion of onshore wind.

Then in 2023, the Government commissioned the National Infrastructure Commission (NIC) to undertake a study on the infrastructure planning system and the role of NPSs.

The NIC report found that: "To achieve net zero, the system also needs to include all viable forms of renewable generation, including onshore wind.

"Reviews should consider the appropriateness of existing and future technologies and thresholds. Government should amend legislation to bring onshore wind into the Nationally Significant Infrastructure Project system as soon as possible."

Despite the recommendation, the Government continued to exclude onshore wind in its energy policy.

The Good Law Project had launched a challenge against the Secretary of State's decision in March 2024, but the High Court ruled in April that the claim did not meet the threshold for a judicial review.

However, Mr Justice Mould has now reversed the decision, giving permission for the claim to advance on all grounds.

The grounds of challenge are:

• Failure to provide reasons as required by section 5 of the PA 2008 and/or reasons as to how the Exclusion takes account of Government policy relating to the mitigation of, and adaptation to, climate change.
• Failure to lawfully take account of the advice of the NIC and/or alternatively failed to give lawful reasons for rejecting that advice; and/or failure to lawfully consult pursuant to section 7(6) of the PA 2008.
• Fettering of the discretion in treating s15(2)(aa) of the PA 2008 as determinative.

Bekah Sparrow, legal manager at Good Law Project, said: "Onshore wind is vital if we are to solve the climate crisis and bring down energy bills.

"However, rather than use this cheap and effective source of energy as part of the drive to get the UK to net zero, the government ignored its advisers and gave the go-ahead for more oil and gas drilling in the North Sea.

 "Ministers must listen to experts and finally unlock the true potential of onshore wind by putting it at the heart of the incoming government's renewable energy policy."

The Department for Energy Security and Net Zero has declined to comment on the ongoing litigation.

Adam Carey