GLD Vacancies

Cornerstone Planning

Power Lines

The High Court recently upheld the Secretary of State for Energy and Climate Change's decision to consent to the installation of overhead power lines on land owned in part by the claimant. Clare Hardy reviews the judgment.

The case of R (on the application of Samuel Smith Old Brewery (Tadcaster)) v Secretary of State for Energy and Climate Change [2012] All ER (D) 13 (Feb)?related to a proposal by the interested party to install and keep installed a new section of overhead electricity line about 2.2km long and involving seven pylons over land which belonged, in part, to the claimant. There was also an application for five wayleaves associated with the development.

Two inspectors appointed by the defendant Secretary of State recommended that the application should be refused. In April 2010, the Secretary of State gave consent for the installation of overhead lines pursuant to section 37 of the Electricity Act 1989. The claimant applied for judicial review of that decision.

The claimant argued:

  1. The Secretary of State had failed to apply section 38(6) of the Planning and Compulsory Purchase Act 2004 to the section 37 consent application. The deemed planning consent under section 90 of the Town and Country Planning Act 1990 required a determination to be made under the relevant planning Acts and therefore the duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 had been engaged.
  2. The Secretary of State had failed to determine whether the proposal involved the construction of a building or an engineering operation for the purposes of Policy Guidance 2 (PPG2).
  3. The Secretary of State had erroneously applied the PPG2 policy in relation to pylons.
  4. The Secretary of State had acted unreasonably in departing from the inspector’s conclusions as to the impact on the landscape character and visual appearance of the area.
  5. The Secretary of State’s reliance upon the urgency of the need to reinforce the Ferrybridge Ring was either unlawful or unfair.
  6. The Secretary of State’s treatment of the costs of a substation had been unfair or irrational.
  7. The wayleaves had been tantamount to the compulsory acquisition of a person’s land against his will in circumstances where it was not found to be necessary, only expedient.
  8. The environmental statement that the interested party was required to produce pursuant to the Environmental Impact Assessment Regulations did not deal with the effects of the construction of the sub-station.

The application was dismissed. It was held that:

  • The effect of the deeming provision was to dispense with the need for any determination of the planning permission.
  • The Secretary of State’s decision had been reached after carrying out the balancing exercise required by PPG2.
  • In the circumstances, there had been no error in the Secretary of State’s approach to pylons.
  • Matters of planning judgement were within the exclusive jurisdiction of the local planning authority or the Secretary of State.
  • The Secretary of State was not required to take into account the historic delays in relation to the determination of the interested party’s application for the overhead power line, even though some of those might have been the responsibility of the Secretary of State’s own department when considering the urgency of the need to enforce the Ferrybridge Ring and when balancing that need against and in the context of the other relevant factors which he had to take into account.
  • In the circumstances, there had been no error of law in the Secretary of State’s approach to the substation costs and, so far as the conclusion that resulted from it was concerned, that had been a matter of planning judgement.
  • In the circumstances, the case for the wayleaves for the interested party’s proposals met the test of being a compelling case in the public interest.
  • The sub-station had already existed and was not part of the proposed development for which consent was being sought under section 37 of the Electricity Act 1989. The authorities did not support the proposition that where a development had been constructed with lawful consent, it should be taken into account as part of a separate proposal which was being assessed for the purposes of the Environmental Impact Assessment Regulations.

Clare Hardy?is a solicitor at Eversheds. She can be contacted on 0845 497 9797?or by email at?This email address is being protected from spambots. You need JavaScript enabled to view it..