The presumption in favour of the development plan does not apply to the grant of deemed planning permissions under the Electricity Act

Samuel Smith’s Old Brewery (Tadcaster) Limited v. Secretary of State for Energy and National Grid Electricity Transmission Systems Plc [2012] EWHC 46 (Admin)

This was an appeal to the High Court to the grant of consent by the Secretary of State to National Grid under the Electricity Act to National Grid to erect and maintain a new overhead high voltage electricity line in North and West Yorkshire to reinforce the Ferrybridge Ring which serves  Harrogate and surrounding communities,  and the grant of the necessary wayleaves over the Brewery’s land to install the line. Mr Justice Edwards-Stuart gave judgement for the Secretary of State and National Grid on 31 January 2012 and refused permission to appeal. This is a long standing project of National Grid which has been embroiled in litigation for the past 10 years or so.

Mark Lowe QC was instructed by Berwin Leighton Paisner to appear for National Grid in the High Court in December 2011 having been instructed by Hammonds to appear with Simon Bird QC at the inquiry which took place over 3 weeks in 2009. The issues at the inquiry were a comparison of the merits of undergrounding the line compared with overhead provision in terms of cost, environmental impact and efficiency, planning policy in the Green Belt and the adequacy of the ES for the scheme among others.

The case is important for the following points:

1.  The Court decided that the primacy given to the development plan by s.38(6) Planning and Compensation Act 2004 does not apply to the procedure of deemed consent under s.37 Electricity Act 1989.
2. The treatment of ‘sunk costs’ incurred in providing infrastructure formerly under other proposals and now to be used for the scheme.
3. The SoS was in breach of the obligations owed to the Brewery under Article 6 of the European Convention of Human Rights but, nevertheless, the SoS was entitled to find that the urgency  in terms of the need to provide the scheme  for the benefit of the consumers outweighed that harm.
4.  How the ‘expediency’ test applied by the Electricity Act to the compulsory grant of wayleaves sits in the context of the need to find ‘a compelling case in the public interest’ to compulsorily acquire land under the Human Rights Act.
5. The treatment under the EIA Regime of the re-use of the infrastructure referred to in para 2 above when used for the purpose of the scheme.
6. The treatment of the Green Belt policy issues under PPG2 was a matter of planning judgement for the SoS, even when disagreeing with his inspector on the assessment of visual impact.