Judgment was handed down in the High Court this morning by Mrs Justice Lieven in the case of The King (on the application of AQUIND Limited) v Secretary of State for BEIS and others. The judgment has found in favour of the Claimant, AQUIND Limited, and results in the quashing of the decision of the Secretary of State (SoS) to refuse development consent for the AQUIND Interconnector dated 20 January 2022.

The case centred on the issue of alternatives and the claim was successful on four out of seven grounds, as follows:

  1. failure to take into account relevant evidence relating to alternatives;
  2. failure to discharge the duty under section 104 of the Planning Act 2008 in respect of how decisions must be taken;
  3. failure to apply policies in National Policy Statement EN-1 (Energy) relating to the assessment of alternatives; and
  4. breach of the Tameside duty, to take reasonable steps to inform so as to be able to discharge the relevant statutory duties.

The grounds on which the claim was not successful were: (1) mistake of fact; (2) procedural unfairness in respect of the Claimant not being made aware of concerns and having reasonable opportunity to respond; and (3) Reasons, which was decided to add nothing of further substance to the successful grounds.

This is a great result for our client, AQUIND Limited. The decision on whether to grant Development Consent for the AQUIND Interconnector will now be remitted back to the SoS, for a decision to be taken again on the basis of the strong recommendation to approve issued by Examiners. The project, a new 2,000MW subsea and underground High Voltage Direct Current bi-directional electric power transmission link between the south coast of England and Normandy in France, will have the capacity to transmit up to 16,000,000MWh of electricity per annum, which equates to approximately 5% and 3% of the total consumption of the UK and France respectively. It will deliver significant benefits in terms of the energy trilemma of security, affordability and sustainability, including a significant carbon emissions reduction saving over its lifetime, at a time of great need.

This is also a great result for the industry, with the judgment clarifying how alternatives should be considered in relation to a project and how the policies on alternatives in the NPS should be applied by the decision maker. We know that the decision of the SoS created a lot of uncertainty in this respect, and we are pleased that the judgment has gone some way to resolving that, particularly as the number of projects coming forward to address the issue of the energy crisis and to upgrade the Country’s electrical infrastructure to provide necessary resilience is ever increasing and the issue of alternatives is therefore ever more relevant.

For further information please contact:

Martyn Jarvis
Martyn Jarvis
Senior Associate, Planning, London
+44 20 7466 2680