Jones, R (on the application of) v The Secretary of State for Business, Energy and Industrial Strategy [2017] EWHC 1111 (Admin)

Case No CO/4571/2016

[2017] EWHC 1111 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN WALES

Date 16/05/2017

Llangefni County Court

Llangefni, Anglesey

Before

THE HONOURABLE MR JUSTICE LEWIS

Between

R on the application of JOHN MARS JONESClaimant

(on his own behalf and on behalf of the PYLON THE PRESSURE GROUPClaimant

THE SECRETARY OF STATE FOR BUSINESS, ENERGY AND INDUSTRIAL STRATEGYDefendant

Between

SP MANWEB PLCInterested Parties

CONWY COUNTY BOROUGH COUNCILInterested Parties

DENBIGHSHIRE COUNTY COUNCILInterested Parties

Mr Peter Dixon (instructed by Guthrie Jones and Jones) for Claimant

Mr Richard Moules (instructed by Government Legal Department) for Defendant

Mr Mark Westmorland Smith (instructed by Pinsent Masons LLP) for First Interested Party

for The second and third interested parties did not appear and were not represented

Hearing Hearing dates:10 and 11 April 2017

Judgment

THE HONOURABLE MR JUSTICE LEWIS:

INTRODUCTION

[1]This is a claim for judicial review of the North Wales Wind Farms Connection Order 2016 (“the Order”) as amended by the North Wales Wind Farm Connection (Correction) Order 2017. The Order granted development consent for the construction of a 132 kiloVolt (“kV”) electricity line, approximately 17.4 kilometres in length which was to run above ground. The work authorised includes the construction of up to 225 double wood pole supports to carry the necessary cabling. The electricity line will pass to the west of Berain Farm which is owned by the Claimant, Mr Mars Jones. Berain Farm is a working farm which encompasses Grade II* listed buildings of historic and architectural importance.

[2]The Claimant contends that the Order is unlawful. He contends first that the Defendant failed to determine the application in accordance with the relevant national policy statement as required by section 104(3) of the Planning Act 2008 (“the 2008 Act”). In this regard, he contends that the Defendant failed to have regard to the presumption in favour of conserving designated heritage assets and wrongly treated the appropriate test as being whether the proposed development would cause substantial harm, rather than assessing the significance of the heritage asset and weighing the benefits of the proposed development against the harm to the heritage asset. Furthermore, he contends that, having found that the proposed development raised serious concerns in relation to its landscape and visual impact, the Defendant did not have sufficient information to assess, and did not properly assess, alternatives including, in particular, placing the line underground rather than above ground in the vicinity of Berain. Secondly, the Claimant contends that the Defendant failed to consider whether it was necessary and proportionate to grant the undertaker the power permanently to extinguish certain rights as provided for by Article 23(1) of the Order in circumstances where the development consent expired after 30 years. Finally, he contends that the Defendant failed to give adequate reasons for his conclusions on these issues. THE LEGAL FRAMEWORK The Legislative Framework

THE LEGAL FRAMEWORK

[3]The 2008 Act deals with the process of granting consent for certain developments defined as nationally significant infrastructure projects. Section 31 of the 2008 Act provides that consent is required for development which is, or is part of, a nationally significant infrastructure project. Such projects are defined in Part 3 of the 2008 Act and include “the installation of an electric line above ground” wholly in Wales unless the expected voltage of the line is expected to be less than 132 kV (see sections 14(1)(b) and 16 of the 2008 Act).

[4]Applications for orders granting development consent must be made to the Secretary of State (see section 37 of the 2008 Act). There is a procedure for consultation upon, and the publication of, a proposed application and a requirement for the applicant to have regard to the responses (see sections 41 to 49 of the 2008 Act). Following that process, the application for development consent is then made to the Secretary of State. The application must include, amongst other things, a document referred to as a book of reference which includes the names and addresses of each person in respect of which land is proposed to be subject to powers of compulsory acquisition of rights and also the names of those entitled to enjoy easements or other private rights which it is proposed should be extinguished, suspended or interfered with (see paragraphs 5 and 7 of the Infrastructure Planning (Applications: Prescribed Forms and Procedure Regulations 2009 (“the 2009 Regulations”)). Once an application is made and accepted by the Secretary of State, there is provision for notification of the application to local authorities, other bodies and prescribed persons (see section 56 of the 2008 Act). There is also provision for the publication of the fact that an application has been made and details as to how persons may make representation in relation to the application (see regulation 9 of the 2009 Regulations).

[5]The Secretary of State may appoint a panel to carry out the function of examining the application and making a report setting out findings, conclusions and recommendation: see sections 61 and 74 of the 2008 Act.

[6]In terms of dealing with an application for development consent, the Secretary of State may designate a statement as a statement of national policy for the purposes of the 2008 Act: see section 5 of the 2008. Act. There are two relevant national policy statements in the present case: the Overarching National Policy Statement for Energy (EN-1) (“EN-1”) and the National Policy Statement for Electricity Networks Infrastructure (EN-5) (“EN-5”).

[7]The Secretary of State must have regard to a national policy statement and must decide an application for development consent order in accordance with any relevant national policy statement unless, amongst other things, the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh the benefits of the proposed development (see section 104(1), (3) and (7) of the 2008 Act). Where the application affects a listed building or its setting, the Secretary of State must also have regard to the desirability of preserving the listed building or its setting (see regulation 3 of the Infrastructure Planning (Decisions) Regulations 2010 (“the 2010 Regulations”)).

[8]When the Secretary of State has decided an application, he is required to make an order granting or refusing development consent: see section 114 of the 2008 Act. He must also prepare a statement of reasons for deciding to make an order granting development consent: see section 116 of the Act.

[9]An order granting development consent may impose requirements in connection with the development and “may make provisions relating to, or to matters ancillary to the development for which consent is granted” including, in particular, the matters set out in Part 1 of Schedule 5 to the 2008 Act: (see section 120(3) and (4) of the 2008 Act). The provisions that are listed in Part 1 of Schedule 5 to the 2008 Act include, so far as material:

“1. The acquisition of land, compulsorily or by agreement. 2. The creation, suspension or extinguishment of, or interference with interests in or rights over land (including rights of navigation over water), compulsorily or by agreement. ….. “36. The payment of compensation.”

[10]Further provision relating to the compulsory acquisition of land is included in Part 7 of the 2008 Act. The Relevant National Policy Statements.

[11]EN-1 deals with national policy for energy infrastructure. Section 3.3 of EN-1 deals, in particular, with the need for new nationally significant electricity infrastructure projects. It explains the importance of electricity in terms of meeting a significant proportion of overall energy need and addresses the question of ensuring sufficient electricity generating capacity is available. Paragraph 3.7.10 of EN-1 provides as follows:

“3.7.10 In the light of the above, there is an urgent need for new electricity transmission and distribution infrastructure (and in particular for new lines of 132 kV and above) to be provided. The [Secretary of State] should consider that the need for any given proposed new connection or reinforcement has been demonstrated if it represents an efficient and economical means of connecting a new generating station to the transmission or distribution network, or reinforcing the network to ensure that it is sufficiently resilient and has sufficient capacity (in the light of any performance standards set by Ofgem) to supply current or anticipated future levels of demand. However, in most cases, there will be more than one technological approach by which it is possible to make such a connection or reinforce the network (for example, by overhead line or underground cable) and the costs and benefits of these alternatives should be properly considered as set out in EN-5 (in particular section 2.8) before any overhead line proposal is consented.” transmission and distribution infrastructure (and in particular for new lines of the need for any given proposed new connection or reinforcement has been demonstrated if it represents an efficient and economical means of connecting a new generating station to the transmission or distribution network, or reinforcing the network to ensure that it is sufficiently resilient and has sufficient capacity (in the light of any performance standards set by Ofgem) to supply current or anticipated future levels of demand. However, in most cases, there will be more than one technological approach by which it by overhead line or underground cable) and the costs and benefits of these alternatives should be properly considered as set out in EN-5 (in particular section 2.8) before any overhead line proposal is consented.”

alternatives should be properly considered as set out in EN-5 (in particular

[12]General points are dealt with in section 4 of EN-1. Paragraph 4.1.2 provides, in part that:

“Given the level and urgency of need for infrastructure of the types covered by the energy NPSs set out in Part 3 of this NPS, the [Secretary of State] should start with a presumption in favour of granting consent to applications for energy NSIPs. That presumption applies unless any more specific and relevant policies set out in the relevant NPSs clearly indicate that consent should be refused.”

[13]Section 5 of EN-1 deals with the assessment of the impacts of proposed development and section 5.8, in particular, deals with the assessment of adverse impacts on the historic environment. The material provisions for present purposes (footnotes omitted) are as follows:

“5.8.12 In considering the impact of a proposed development on any heritage assets, the [Secretary of State] should take into account the particular nature of the significance of the heritage assets and the value that they hold for this and future generations. This understanding should be used to avoid or minimise conflict between conservation of that significance and proposals for development. “5.8.13 The [Secretary of State] should take into account the desirability of sustaining and, where appropriate, enhancing the significance of heritage assets, the contribution of their settings and the positive contribution they can make to sustainable communities and economic vitality 122. The [Secretary of State] should take into account the desirability of new development making a positive contribution to the character and local distinctiveness of the historic environment. The consideration of design should include scale, height, massing, alignment, materials and use. The [Secretary of State] should have regard to any relevant local authority development plans or local impact report on the proposed development in respect of the factors set out in footnote 122. “5.8.14 There should be a presumption in favour of the conservation of designated heritage assets and the more significant the designated heritage asset, the greater the presumption in favour of its conservation should be. Once lost heritage assets cannot be replaced and their loss has a cultural, environmental, economic and social impact. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. Loss affecting any designated heritage asset should require clear and convincing justification. Substantial harm to or loss of a grade II listed building park or garden should be exceptional. Substantial harm to or loss of designated assets of the highest significance, including Scheduled Monuments; registered battlefields; grade I and II* listed buildings; grade I and II* registered parks and gardens; and World Heritage Sites, should be wholly exceptional. “5.8.15 Any harmful impact on the significance of a designated heritage asset should be weighed against the public benefit of development, recognising that the greater the harm to the significance of the heritage asset the greater the justification will be needed for any loss. Where the application will lead to substantial harm to or total loss of significance of a designated heritage asset the [Secretary of State] should refuse consent unless it can be demonstrated that the substantial harm to or loss of significance is necessary in order to deliver substantial public benefits that outweigh that loss or harm. ….. “5.8.18. When considering applications for development affecting the setting of a designated heritage asset, the Secretary of State should treat favourably applications that preserve those elements of the setting that make a positive contribution to, or better reveal the significance of, the asset. When considering applications that do not do this, the Secretary of State should weigh any negative effects against the wider benefits of the application. The greater the negative impact on the significance of the designated heritage asset, the greater the benefits that will be needed to justify approval.” assets, the [Secretary of State] should take into account the particular nature of the significance of the heritage assets and the value that they hold for this and future generations. This understanding should be used to avoid or minimise conflict between conservation of that significance and proposals for development. “5.8.13 The [Secretary of State] should take into account the desirability of sustaining and, where appropriate, enhancing the significance of heritage assets, the contribution of their settings and the positive contribution they can make to sustainable communities and economic vitality 122. The [Secretary of State] should take into account the desirability of new development making a positive contribution to the character and local distinctiveness of the historic environment. The consideration of design should include scale, height, massing, alignment, materials and use. The [Secretary of State] should have regard to any relevant local authority development plans or local impact report on the proposed development in respect of the factors set out in footnote 122. “5.8.14 There should be a presumption in favour of the conservation of designated heritage assets and the more significant the designated heritage asset, the greater the presumption in favour of its conservation should be. Once lost heritage assets cannot be replaced and their loss has a cultural, environmental, economic and social impact. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. Loss affecting any designated heritage asset should require clear and convincing justification. Substantial harm to or loss of a grade II listed building park or garden should be exceptional. Substantial harm to or loss of designated assets of the highest significance, including Scheduled Monuments; registered battlefields; grade I and II* listed buildings; grade I and II* registered parks and gardens; and World Heritage Sites, should be wholly exceptional. “5.8.15 Any harmful impact on the significance of a designated heritage asset should be weighed against the public benefit of development, recognising that the greater the harm to the significance of the heritage asset the greater the justification will be needed for any loss. Where the application will lead to substantial harm to or total loss of significance of a designated heritage asset the [Secretary of State] should refuse consent unless it can be demonstrated that the substantial harm to or loss of significance is necessary in order to deliver substantial public benefits that outweigh that loss or harm. ….. “5.8.18. When considering applications for development affecting the setting of a designated heritage asset, the Secretary of State should treat favourably applications that preserve those elements of the setting that make a positive contribution to, or better reveal the significance of, the asset. When considering applications that do not do this, the Secretary of State should weigh any negative effects against the wider benefits of the application. The greater the negative impact on the significance of the designated heritage asset, the greater the benefits that will be needed to justify approval.”

[14]EN-5 deals more specifically with electricity network infrastructure. Paragraph2.1.1 of EN-5 explains that EN-5 is concerned with impacts and other matters that are specific to electricity networks infrastructure. Paragraph

2.1.2 of EN-5 explains that the policies in EN-5 are additional to, and should be read with, EN-1. Section 2 of EN-5 deals with specific considerations in assessing the impacts of a proposed electricity network, including on landscape and visual matters amongst other things. Paragraph 2.8.2 of EN-5 notes that the government does not believe that the development of overhead lines is generally incompatible with the duty to have regard to and mitigate the effect on amenity. It provides, however that:

“new above ground electricity lines, whether supported by lattice steel towers/pylons or wooden poles, can give rise to adverse landscape and visual impacts, dependent upon their scale, siting, degree of screening and the nature of the landscape and local environment through which they are routed. For the most part these impacts can be mitigated, however at particularly sensitive locations the potential adverse landscape and visual impacts of an overhead line proposal may make it unacceptable in planning terms, taking account of the specific local environment and context.” towers/pylons or wooden poles, can give rise to adverse landscape and visual impacts, dependent upon their scale, siting, degree of screening and the nature of the landscape and local environment through which they are routed. For the most part these impacts can be mitigated, however at particularly sensitive locations the potential adverse landscape and visual impacts of an overhead line proposal may make it unacceptable in planning terms, taking account of the specific local environment and context.”

may make it unacceptable in planning terms, taking account of the specific local

[15]Consequently paragraph 2.8.4 of EN-5, under the heading “Applicant’s Assessment” provides that:

“Where possible, applicants should follow the principles below in designing the route of their overhead line proposals and it will be for applicants to offer constructive proposals for additional mitigation of the proposed overhead line. While proposed underground lines do not require development consent under the Planning Act 2008, wherever the nature or proposed route of an overhead line proposal makes it likely that its visual impact will be particularly significant, the applicant should have given appropriate consideration to the potential costs and benefits of other feasible means of connection or reinforcement, including underground and sub-sea cables where appropriate. The ES should set out details of how consideration has been given to undergrounding or sub-sea cables as a way of mitigating such impacts, including, where these have not been adopted on grounds of additional cost, how the costs of mitigation have been calculated.” the route of their overhead line proposals and it will be for applicants to offer constructive proposals for additional mitigation of the proposed overhead line. While proposed underground lines do not require development consent under the Planning Act 2008, wherever the nature or proposed route of an overhead line proposal makes it likely that its visual impact will be particularly significant, the applicant should have given appropriate consideration to the potential costs and benefits of other feasible means of connection or reinforcement, including underground and sub-sea cables where appropriate. The ES should set out details of how consideration has been given to undergrounding or sub-sea cables as a way of mitigating such impacts, including, where these have not been adopted on grounds of additional cost, how the costs of mitigation have been calculated.”

such impacts, including, where these have not been adopted on grounds of

[16]Finally paragraphs 2.8.8 and 2.8.9 deal with “Undergrounding”, that is the placing of electricity cables underground rather than above ground. Those paragraphs provide, so far as material and with footnotes omitted, that:

“Undergrounding “2.8.8 Paragraph 3.7.10 of EN-1 sets out the need for new electricity lines of 132kV and above, including overhead lines. Although Government expects that fulfilling this need through the development of overhead lines will often be appropriate, it recognises that there will be cases where this is not so. Where there are serious concerns about the potential adverse landscape and visual effects of a proposed overhead line, the [Secretary of State] will have to balance these against other relevant factors, including the need for the proposed infrastructure, the availability and cost of alternative sites and routes and methods of installation (including undergrounding). “2.8.9 The impacts and costs of both overhead and underground options vary considerably between individual projects (both in absolute and relative terms). Therefore, each project should be assessed individually on the basis of its specific circumstances and taking account of the fact that Government has not laid down any general rule about when an overhead line should be considered unacceptable. The Secretary of State should, however only refuse consent for overhead line proposals in favour of an underground or sub-sea line if it is satisfied that the benefits from the non-overhead line alternative will clearly outweigh any extra economic, social and environmental impacts and the technical difficulties are surmountable…..” 132kV and above, including overhead lines. Although Government expects that fulfilling this need through the development of overhead lines will often be appropriate, it recognises that there will be cases where this is not so. Where there are serious concerns about the potential adverse landscape and visual effects of a proposed overhead line, the [Secretary of State] will have to balance these against other relevant factors, including the need for the proposed infrastructure, the availability and cost of alternative sites and routes and methods of installation (including undergrounding). considerably between individual projects (both in absolute and relative terms). Therefore, each project should be assessed individually on the basis of its specific circumstances and taking account of the fact that Government has not laid down any general rule about when an overhead line should be considered unacceptable. The Secretary of State should, however only refuse consent for overhead line proposals in favour of an underground or sub-sea line if it is satisfied that the benefits from the non-overhead line alternative will clearly outweigh any extra economic, social and environmental impacts and the technical difficulties are surmountable…..”

THE FACTS The Application

THE FACTS

[17]The First Interested Party, SP Manweb PLC (“Manweb”), is an electricity distribution network operator holding a distributor’s licence under the Electricity Act 1989 (“the 1989 Act”). Section 16 of that Act requires Manweb to make a connection to its distribution system when requested to do so. A number of developers who were proposing to construct windfarms requested that their developments be connected to Manweb’s distribution network.

[18]Manweb proposed constructing an overhead electricity line with a voltage greater than, or equal to, 132kV. Such an overhead line would amount to a nationally significant infrastructure project within the meaning of the 2008 Act. Manweb therefore decided to apply for an order granting a development consent to construct the overhead electricity line in order to enable it to provide connections to the electricity grid network for a number of the wind farm developments to be constructed in north Wales. The number of windfarm developments seeking a connection to the distribution network was originally four but that reduced over time to two.

[19]Manweb consulted upon a proposed application between March and June 2014. That consultation included consideration of possible routes. On 25 March 2015, Manweb applied to the Defendant for a development consent for an overhead electricity line running approximately 17.4 kilometres. The application was accompanied by a number of documents, including a draft order, a strategic options report, a design and construction report, an environmental statement, a planning statement and a book of reference identifying land which may be subject to the exercise of powers of compulsory acquisition and also the names of persons whose easements or rights over land may need to be extinguished, suspended to subjected to interference.

[20]The proposed development involved the electricity line being carried overhead. The electricity line would pass within approximately 125 metres to the west of the farmstead at Berain owned by the Claimant. That farmstead comprises a number of buildings, including two Grade II* listed buildings. One of the listed buildings is Berain Hall which is a rare and important Tudor gentry house. It was the home of Katherine of Tudor, a descendant of Henry VII. The other listed building is a rare example of an Elizabethan barn. The buildings at Berain therefore, have both architectural and historic interest. The proposed overhead electricity line will have an impact on the setting of the buildings forming Berain. In addition, certain rights that the Claimant has over land on which the overhead line is to be constructed (arising by virtue of his occupation of other land as a tenant) may, in certain circumstances, be extinguished. The Claimant is also a member of an unincorporated association, known by the name “Pylon the Pressure Group”, which currently has a number of members who are residents of communities in the vicinity of the proposed overhead electricity line. The association was formed to represent the interests of the members in connection with the proposed overhead line.

The Examination of the Application

[21]A panel was appointed to conduct an examination of the application. The examination was partly done in writing and partly by a series of oral hearings dealing with specific issues, what were described as open floor hearings, and hearings dealing with compulsory acquisition. At various stages during the examination, the panel also issued written questions seeking information and representations on specific issues. The Claimant, and others, and representatives of Manweb, made written submissions, put in evidence and appeared and made oral representations at oral hearings held by the panel.

[22]Among the many issues considered by the panel were the following. The panel raised the question of placing the electricity line underground. Manweb made it clear that they were not proposing to place any part of the line underground and were not seeking consent for such an option. Manweb took the view that the proposed development would not give rise to serious concerns in terms of the landscape and visual impact and would be acceptable in terms of its impact on heritage matters (including the setting of the historically and architecturally important buildings at Berain). They did not therefore assess various alternatives to an overhead line such as placing part of the line underground. They did produce a document, entitled the Lifetime Costs Report, which set out the differences in cost between an overhead line and an underground line over four periods, 25 years, 40 years, 75 years and 125 years. The report assessed the comparative costs of placing the electricity there undergrounded by reference to the costs per kilometre, giving a range for each kilometre underground. A range was given as the costs of placing a cable underground would differ depending on the particular area where the cable would be placed. The Claimant, and the Second Interested Party (Conwy County Borough Council) took a different view and considered that the proposed development would raise serious concerns in relation to landscape and visual matters, and would have an unacceptable impact on the setting of the historic and architecturally important buildings at Berain. The Claimant, and others, considered that the section of the electricity line passing in the vicinity of Berain should be placed underground rather than being carried above ground.

[23]The panel also considered the question of whether any development consent granted should be limited in duration, reflecting the fact that the planning permissions for the proposed windfarm developments seeking connection to the distribution network were themselves only to last for specific periods. The final draft order sought by Manweb reflected this so that the development consent would expire 30 years from the date of the order granting development consent. The panel also considered the question of the relevance of the imposition of a time limit on the life of the development consent on the proposed powers of compulsory acquisition of rights over land.

[24]In addition, the panel specifically asked why Manweb needed power to extinguish certain private rights. Manweb responded in writing explaining that provisions for extinguishing such rights were needed to ensure that no existing private rights or restrictive covenants could prevent the implementation or use of the proposed development. Manweb said that it was proposed that those who enjoyed private rights over land which might be extinguished may be able to claim compensation. The panel made a further request asking for examples which clarified why the extinguishment of rights was necessary. Manweb gave examples of such rights. By way of example, rights to drainage may need to be interfered with to provide for the proposed development if, for example, a wooden pole had to be placed in a location where there was currently a drain which people had the right to use. The order would provide the power to create and acquire the right to construct and use a drain at another location. In relation to rights to use the existing drain, there would be power to extinguish such rights and, if applicable, pay compensation, rather than provide for the restoration of the right to use the existing drainage system at the end of the lifetime of the development. It seems that only one person (not the Claimant) made written representations on this topic in relation to particular private rights.

The Report of the Panel

[25]The panel produced a report dated 28 April 2016. The report is a lengthy document and should be considered in its entirety. In essence, the panel recommended that an order, in the form attached to the report, should be made granting development consent for an overhead electricity line.

[26]Sections 1 and 2 of the report dealt with procedural matters and the main features of the proposal and the site. Section 3 sets out the legal and policy context. Section 4 of the report sets out its findings and conclusions on the main issues, the principle of the development and relevant policy. Section 5 dealt with the panel’s findings and conclusions in relation to specific matters including landscape and visual impact, and the historic environment. Section 7 of the report set out the panel’s conclusion on the case for development consent. Section 8 dealt with powers of compulsory acquisition of rights over land. The panel also considered whether the right of compulsory acquisition was appropriate if the development consent was limited in time and would expire in due course and considered that that course was preferable to providing for temporary possession of the land in respect of which the rights were required. As appears from paragraph 4.3.19 of the report, the particular question of alternatives to an overground line was considered in section 4.5 of the report and the question of compliance with the general principles of EN-1 and assessment of the generic impacts identified in EN-1 and EN-5 was dealt with in later chapters.

[27]Section 4.5 of the report, dealing with alternatives, deals first with national policy and refers specifically to paragraphs 3.7.10 of EN-1 and 2.8.8 and 2.8.9 of EN-5 (set out above at paragraphs 11 and 16 above respectively). Paragraph 4.5.1 of the report states that section 4.5 deals with the strategic options appraisal prepared by Manweb and the alternative solutions considered in Manweb’s environmental statement (which did not include placing part of the line underground) and also the requests of the interested parties that the line be placed underground both partially and in its entirety. The panel noted the estimates provided by Manweb that the capital costs for an underground line would be within a range of £1.1 million to £1.6 million per kilometre. The report also considered the total estimates of the comparative cost of an overhead line as against an underground line over certain periods (the comparative cost needing to take into account the costs of repairs). The report noted that the Second Interested Party requested that the draft order be amended so that the electricity line would be placed underground in the area around Berain (and at one other location): see paragraphs 4.5.46, 4.5.47 and 4.5.55 of the report. The report noted Manweb’s response that placing the line underground at those two locations would require, in effect, a different option to be placed before the panel. The panel noted that an option with partial undergrounding had not been submitted to the panel for examination.

[28]The material conclusions of the panel on this issue for present purposes come at paragraph 4.5.93 to 4.5.96 and are in the following terms:

“4.5.93 The Panel considers that the information provided by the Applicant in relation to comparative costs contains sufficient detail which is realistic and credible. The costs report identifies that undergrounding would be approximately double the cost of the overhead line. For a 25 year connection this would equate to approximately an additional £16.6m. The Panel also accepts the Applicant’s reasoning for the choice of underground route for cables between Clocaenog Forest and St Asaph, and in doing so considers that the underground route, following roads and road verges would not have any unsurmountable environmental, archaeological or social impacts and could be completed in a year. 4.5.94 The Panel accepts that undergrounding sections of the development, for example past Berain and under the A543, would require a set of terminal poles at either end of the underground section. The ES did not consider the environmental effects in relation to the additional sets of terminal poles and so they were not part of the proposed development. Undergrounding the development past Berain, or in other locations along the route, cannot therefore be considered in relation to the proposal that is before the Examination. “4.5.95 In section 5.2 of this report, concerning landscape and visual impact matters, the Panel concludes that the Applicant’s approach to the Holford Rules and consideration of alternatives is proportionate. The Panel has given consideration to the EN-5 requirement in relation to whether serious concerns had been raised regarding landscape and visual impact. It concludes that serious concerns had been raised by IPs and then went on to consider the need for the development and the effects it would have on the landscape and visual receptors against the tests of EN-5. It concludes that the balance of benefits of the underground alternative would not clearly outweigh the extra economic costs. Report Section 5.1 concludes that there are no reasons relating to biodiversity effects from the proposed development that would prevent the DCO from being made, provided the proposed environmental surveys and mitigation are delivered. In relation to historic environment, the Panel has given specific consideration to the prospect of undergrounding sections of the route in the vicinity of Berain, as well as through the un-designated historic parkland of Eriviat Hall, but reached the conclusion, having regard to various factors, including costs associated with the alternative, that undergrounding would not be justified at these locations. “4.5.96 The Panel has borne in mind that from a policy perspective, EN1 does not consider any general requirement to consider alternatives or to establish whether the proposed development is the best option. The Panel has no doubt that the proposed development represents an efficient and economical means of connecting the remaining wind farms to the electricity transmission and distribution network to assist in supplying current and future levels of demand.”

[29]At paragraphs 4.5.98 to 4.5.99, the panel concluded that an option of full undergrounding, that is placing the entire line underground, would be technically feasible but that the benefits of such an option would not outweigh the costs. The panel concluded that there were no policy or legal requirements that led it to recommending that consent be refused for the proposed development in favour of another alternative (be it partial or full undergrounding).

[30]Section 5.2 of the report dealt with landscape and visual impact. The panel did not accept Manweb’s interpretation of the relevant paragraphs of EN-5 and rejected its argument that the proposed development would not raise serious concerns in respect of landscape and visual impact within the meaning of paragraph 2.8.8 of EN-5. The panel found that there would be serious concerns, within the meaning of the policy, where the impacts were significant and identified. Significant visual impacts would be seen at, amongst other places, 15 viewpoints along the proposed route. These viewpoints, effectively, stretched along the length of the line and were not concentrated in one, or a small number, of locations. The panel concluded at paragraphs 5.2.100 to 5.2.102 that:

“5.2.100. The additional costs of undergrounding are considered and concluded upon in report Section 4.5 above. The Panel accepts that an underground cable route would be technically feasible and deliverable, but it is not satisfied that the benefits of such an option would clearly outweigh the additional costs burden. 5.2.101 Report Section 4.5 also provides details in relation to the environmental and archaeological consequences of undergrounding the development and concludes that the underground option would be technically feasible as it would be installed in road margins and verges. The Panel considers therefore, that it would be unlikely to experience any significant unknown archaeological interests and would be unlikely to have significant environmental impacts. 5.2.102 The Panel concludes that moderate (and therefore significant) adverse effects would arise in relation to landscape and visual impact, from the proposed development. However, the Panel finds that the adverse landscape and visual impact effects would not lead to a level of harm which sufficient to outweigh the urgent and national need for the development. The Panel also concludes that the balance of benefits from undergrounding the development would not clearly outweigh the extra economic impacts that would be incurred.”

[31]At section 5.4, the report considers the issue of the historic environment. It begins by summarising the obligation to have regard to the desirability of preserving the listed building or its setting imposed by regulation 3 of the 2010 Regulations. It then referred to the relevant paragraphs of section 5.8 of EN-1. The report refers to paragraph 5.8.14 to 5.8.15 of EN-1 and noted that the significance of heritage assets can be harmed through alteration or destruction of the heritage asset or development within its setting. It noted that the policy explained that authorising development which would cause substantial harm to, or loss of, a Grade I or II* listed building should be wholly exceptional. It referred to paragraph 5.8.15 of EN-1 as explaining that any harmful impact on a designated heritage asset should be weighed against the public benefit of the development and the greater the harm, the greater the justification needed for the development. The report then considers the specific sites in issue including Berain.

[32]Paragraphs 5.4.125 to 5.4.130 of the report provide as follows:

“5.4.125 The Panel has taken into consideration all of the documents and other representations from the Applicant and the IPs that commented on the impact that the development would have on the setting of Berain. In addition, the Panel viewed the location and setting on various site inspections. “5.4.126 The Panel has considered the impacts of the proposed development on the setting of Berain listed buildings. In so doing, it has taken into account national policy in EN-1, section 5.8 and considers that the setting of Berain has a heritage significance that merits consideration. It considers that, in relation to paragraph 5.8.13 of EN-1, the proposed development would not enhance the significance of the of the heritage asset, the contribution of the setting or assist in making a positive contribution to sustainable communities and economic viability. “5.4.127 The two tests in EN-1, section 5.8, in relation to the impact upon the listed buildings at Berain and their settings are whether the proposed development would lead to substantial harm, and if so, whether the proposed development is wholly exceptional development. “5.4.128 The Panel considers that, in view of its proposed location, height, scale and materials that would be used, and distance away from the listed buildings at Berain, the double wood pole line would not cause substantial harm or loss to the buildings themselves or their setting. The fact that the wood pole line would be decommissioned after 30 years assists the Panel in coming to the conclusion that whilst the impact of the development on the setting of Berain would be moderate and therefore significant for its life, 30 years in the life of the listed buildings would not be a substantial proportion of their life. The Panel also concludes that a moderate or significant impact on the setting of Berain for the duration of the development is not substantial harm. “5.4.129 If the Panel had concluded that the harm to the setting of the listed buildings at Berain would give rise to substantial harm or loss, then the second test in EN-1, paragraph 5.8.14, that the development should be wholly exceptional, would also fail. Had this situation occurred the Panel would have concluded that the development should be undergrounded. For this development however, as the first part of the EN-1 test in relation to the setting of the listed buildings at Berain, the Panel concludes that the development would not cause substantial harm or loss to the listed buildings or their setting. Therefore, the Panel concludes that there is no justification, in relation to the listed buildings at Berain and their setting, for it to recommend that Secretary of State should refuse the development in favour of an underground alternative. “5.4.130 In coming to these conclusions, the Panel has had regard to the desirability of preserving the listed buildings and their setting and the features of special architectural and historic interest which they possess in accordance with Welsh policy as contained in paragraph 6.1.1 of PPW 8.”

[33]The panel’s overall conclusion on historic environment is set out paragraphs 5.4.134 to 5.4.135. In that regard, the panel states that:

“5.4.135 The harm identified by the IPs and the Panel in relation to heritage assets and historic environment has been considered against EN-1 policy. The Panel concludes that there are no historic environment reasons (including the setting of listed buildings), which would lead the Panel to conclude that the proposed development should be refused in favour of an underground alternative. In coming to this conclusion the Panel has had regard to the enjoyment of the heritage assets and their settings by owners, their guests and visitors to the locality and Regulation 3 of the Infrastructure Planning (Decisions) Regulations 2010.”

[34]Section 7 of the report deals with the panel’s conclusion on the case for development consent. That section begins with a consideration of the national policy statements and concludes that Manweb has demonstrated that there is a need for the proposed development to provide a connection to the distribution network for the life of the windfarms. It referred, amongst other things, to section 4.5 of the report on the consideration of alternatives. It said, at paragraph 7.4.1. that chapter 5 of the report provided a detailed analysis of the potential impacts of the proposed development and that this section (that is, chapter 7 of the report) provided a conclusion on the key impacts considered in chapter 5.

[35]The report then considered specific matters such as the landscape and visual impact, design, land use management and the like. Within that section is a section on the historic environment. Paragraph 7.4.49 of the report noted that the panel was satisfied that the harm that would result from the proposed development had been considered against, amongst other policies, EN-1. It noted that the panel had concluded that the proposed development would not cause substantial harm or loss to listed buildings or their setting (including Berain). Its overall conclusion is set out at section 7.6 which is in the following terms: “7.6.1 The legal and policy context for the Examination of the application has already been set out in Chapters 3 and 4 of this report. This has provided a framework for the Panel’s subsequent findings and conclusions. “7.6.2 These conclusions apply equally to both option A and option B, unless otherwise stated. However, the Panel has considered and concluded upon option A and option B in report Section 5.15 where it concludes that, for various reasons, option B is preferred over optiona. A. “7.6.3 Having regard to the overarching national policy statement for energy (EN-1), paragraph 4.1.2, and the Panel’s findings in relation to need and alternatives, it starts with a presumption in favour of granting consent for the Application. The Panel has considered and applied, the more specific and relevant policies set out in EN-1 and National Policy Statement for Electricity Networks Infrastructure (EN-5) in report Chapters 4 and 5. There are no other national policy statement policies that clearly indicate, that in the case of the proposed development, the DCO should not be made in favour of an alternative (underground or single wood pole) proposal. “7.6.4 The Panel has taken into consideration the potential benefits of the proposed development, primarily its contribution to meeting the needs for energy infrastructure to connect wind farms in north Wales to the electricity network. “7.6.5 The Panel has concluded upon the various potential adverse effects of the proposed development during construction, operation and decommissioning. It has given careful consideration to the impacts on residential properties, listed buildings, farming interests and other commercial interests along the proposed route. The Panel has weighed the potential adverse impacts that would arise from the proposed development against the benefits of the scheme. 7.6.6 The Panel has weighed in the balance, the potential harm to the setting of the listed buildings at Berain and the historic parkland at Eriviat Hall, the latter could be considered by Cadw for inclusion in the Welsh register of historic parks and gardens. “7.6.7 The Panel has also taken into account PPW 8 which has a policy presumption against the loss of any BMV land. The Panel accepts that the loss of 2.5ha of BMV land would be contrary to Welsh policy in PPW 8, but concludes that as the route of the development would be restored when the development would be decommissioned, it would not therefore be a permanent loss. “7.6.8 The Panel has considered alternative routes and alternative solutions (i.e. undergrounding and single poles) in report Section 4.5. Whilst other overground routes would have been technically possible, many crossed land with nationally important environmental designations. All other overhead line routes would have been significantly longer than the proposed development. The Panel concludes that the need for the development is sufficient to outweigh the PPW 8 policy constraint in relation to BMV land and considers that agricultural land classification has been given due weight within the Examination. “7.6.9 During the course of the Examination it was evident to the Panel that there were no issues raised in relation to persons who share a relevant protected characteristic and persons who do not. “7.6.10 Having regard to EN-1, paragraph 4.1.3, the Panel finds it necessary to weigh in the overall balance the adverse impacts of the development against its benefits. The Panel has assessed the potential adverse impacts, including any long term and cumulative impacts. It has taken into account the mitigation proposed, and in some instances, has proposed additional measures within the Panel’s recommended draft DCO (Appendix E) to assist in minimising identified adverse impacts that would arise from the development “7.6.11 These are the conclusions that the Panel has reached for option

b. B. It has identified in report Section 5.15 that on many issues there is no difference in impacts on nearby receptors between option A and option B. However, having regard to the effect of option A on the farming community and a residential receptor, the Panel concludes that there are strong reasons for concluding that option B is preferred over option A. In the even that the Secretary of State disagrees with this view, and concludes that option A should be preferred, then the additional impacts of the proposed development upon the farming community and residential receptors would need to be weighed in for overall balance. Although the Panel has expressed its preference for option B, it does not consider that additional impacts associated with option A would be sufficient to alter the overall balance of the case. “7.6.12 The Panel concludes, that for the reasons set out, and incorporating the changes proposed, that development consent should be granted, as set out in the Panel’s recommended draft DCO in Appendix E.”.

[36]Chapter 8 of the report deals with compulsory acquisition and related matters. On a detailed reading, that chapter appears to deal with the compulsory acquisition by Manweb of rights over land. It is not dealing with the question of the extinction of easements or other rights owned by others over land forming part of the land to which the development consent relates. Chapter 9 deals with a number of matters including a more detailed explanation of why the panel did not accept that the development consent should be unrestricted in time and why it should be limited to a period of 30 years (that is, tied, broadly, to the life of the planning permission for the windfarms which the overhead line was intended to serve, together with an additional period of years to provide a degree of flexibility). Chapter 10 of the report sets out a summary of findings and conclusions. That again refers to the legal and policy context set out in chapters 3 and 4. It refers to the panel’s findings and conclusions in relation to policy, need and the principle of the development, and environmental planning issues in chapters 4 and 5. Paragraph 10.1.6 of the report states that the panel’s “overall conclusion on the case of development consent is set out in chapter 7”. The final paragraph sets out the recommendation that, subject to certain matters, the Defendant should grant development consent and make the order as set out in an appendix to the report.

The Decision of the Defendant

[37]The matter was then considered by the Defendant who gave his decision in a letter dated 28 July 2016. Paragraph 10 of the letter noted that the Defendant had decided to make an order with modifications granting development consent for an overhead line. Paragraph 14 noted that the Defendant agreed with the findings, conclusions and recommendations of the panel on, amongst other matters, landscape and visual impacts, historic environment, and the content of the recommended development consent, and the reasons given by the panel were adopted as his reasons in respect of matters not given detailed consideration in the decision letter.

[38]Paragraphs 28 to 29 of the decision letter deals with consideration of full undergrounding. In relation to partial undergrounding, the decision letter says this at paragraphs 30 to 31:

“30. The Secretary of State notes that CCBC had made representations to the ExA requesting the two parts of the Development are undergrounded., namely at the crossing under the A543 due to views towards Elwy and Aled Valleys Special Landscape Areas and at the area around Berain (a cluster of two Grade II* and two Grade II listed buildings in a farmstead) [ER 4.5.47 and 4.5.55]. In response, the Applicant had stated the view that the impacts of the Development at two locations identified by CCBC would not trigger the need for undergrounding of the electric line, as the landscape and visual impact tests in EN-5 of serious concern, and the historic environment tests of EN-1 of substantial harm had not been met [ER 4.5.57]. The Secretary of State’s consideration of the landscape and visual impacts tests in EN-5 of serious concern and the historic environment tests in EN-1 of substantial harm, are set out below. “31. The Secretary of State has had regard to the comments of ExA set out in Chapter 4.5 and Chapter 10 of the Report, and in particular the conclusions set out regarding the consideration of alternative route options and undergrounding. The Secretary of State notes the ExA’s conclusions and reasons for recommending that there are no policy or legal requirements that consent be refused for the Development (Option A or Option B) in favour of another alternative (partial or full undergrounding) and agrees with the ExA that the Development, including the overhead line, should therefore be granted consent.”

[39]Paragraphs 32 to 33 of the decision letter consider the impacts if the proposed overhead line were to remain in place in perpetuity and agreed that decommissioning the development at the end of an appropriate period would address concerns over those impacts and considered that a period of 30 years from the date of the making of the order granting development consent was reasonable. At paragraph 48, the decision letter considers the question of landscape and visual impact and says that:

“48. The Secretary of State has had regard to the comments of the ExA set out in Chapter 5.2 and Chapter 10 of the Report, and in particular the conclusions set out regarding the consideration of “serious concerns” in relation to landscape and visual impact and the test of EN-5. The Secretary of State notes the ExA’s conclusion that moderate (and therefore significant) adverse effects would arise in relation to landscape and visual impact from the Development [ER 5.2.102], and agrees with this conclusion. However, the Secretary of State agrees with ExA’s conclusion that the adverse and visual impact effects would not lead to a level of harm which is sufficient to outweigh the need for the Development [ER 5.2.102] and is not satisfied that the benefits of undergrounding the connection would clearly outweigh the extra economic impacts. The Secretary of State agrees with the ExA’s conclusion that the requirements of EN-1 and EN-5 have been met and agrees with the ExA’s recommendation that there are no reasons on landscape and visual impact grounds not to make the Order.”

[40]On the question of historic environment, the decision letter notes that concerns were raised throughout the examination on the effect of the proposed development on the setting of specific sites including Berain. In that regard, the decision letter says at paragraphs 52 to 53 that:

“52. The Secretary of State notes that Berain is a cluster of Grade II* and two Grade II listed buildings in a farmstead and that CCBC expressed concern throughout the Examination that the Development would have significant major impact on the setting of Berain [ER 5.4.54 and 5.4.72] and contended that there was an overriding case for undergrounding [ER 5.4.54 and 5.4.63]. The Secretary of State notes that whilst Cadw had advised ExA that it was likely that the Development would have a harmful visual impact on the setting of the listed buildings at Berain [ER 5.2.60 and 5.4.67], this view had been informed based on limited photographic and written evidence, rather than a site visit [ER 5.4.68]. The Secretary of State notes that the ExA agreed with the Applicant that the impact of the Development on the setting of Berain would be moderate and therefore significant, but notes that changes and the presence of man-made features are considerably greater within the vicinity of Berain compared to its wider setting [ER 5.4.118]. On this basis, the ExA concluded that when applying the tests in EN-1, in relation to balancing the need for development with harm to heritage assets, the double wood pole line would not cause substantial harm or loss to the listed buildings at Berain [ER 5.4.128]. The Secretary of State has considered ExA’s reasons and recommendation and agrees that the Development would not lead to substantial harm. “53. The Secretary of State notes that the ExA concluded that the concerns about longevity of the Development and the long term impacts upon heritage assets were addressed by the Applicant providing a requirement for the expiry of the development consent (Requirement 19 in the Order), so that the consent expires 30 years after the date that the Order is made [ER 5.4.103].”

[41]The decision letter then deals with the question of the compulsory acquisition of land, and rights over land, by Manweb and other issues such as any potential infringement of any rights derived from the European Convention on Human Rights. The letter finally records the conclusion and decision of the Defendant. Paragraph 87 says that:

“For the reasons set out in this letter, the Secretary of State considers that there is a compelling case for granting development consent. Given the policy as set out in the relevant National Policy Statements referred to above, the Secretary of State considers that the case is not outweighed by potential adverse local impacts of the Development, as mitigated by the proposed terms of the Order, and that granting consent would be consistent with EN-1 and EN-5”

The Order

[42]The Order was made on 28 July 2016 and came into force on the 19 August 2016. Article 3 of the Order grants development consent in the following terms, so far as material; “3.— Development consent etc. granted by the Order (1) The undertaker is granted development consent for the authorised development, as set out in Schedule 1 (authorised development), subject to the provisions of this Order including the Requirements set out in Schedule 2 (Requirements).”

[43]Article 18 of the Order deals with the compulsory acquisition by Manweb of rights over land and provides, so far as material, that:

“18.— Compulsory acquisition of rights (1) Subject to article 19, the undertaker may create and acquire compulsorily the rights over the Order land and impose the restrictions affecting the Order land described in the book of reference and shown on the land plans.”

[44]Article 23 of the Order deals with the extinction or suspension of rights owned by others and provides, so far as material, as follows:

“23. Private rights “(1) Subject to the provisions of this article, all private rights and restrictive covenants over land subject to the compulsory creation and acquisition of rights or the imposition of restrictions under this Order are suspended and unenforceable or, where so notified by the undertaker to the person with the benefit of such private rights or restrictive covenant, extinguished in so far as in either case their continuance would be inconsistent with the exercise of the right created and acquired or the burden of the restriction imposed— (a) as from the date of creation and acquisition of the right or the benefit of the restriction by the undertaker, whether compulsorily or by agreement, or (b) on the date of entry on the land by the undertaker under section 11(1) of the 1965 Act (power of entry) in pursuance of the right, whichever is the earliest. “(2) Subject to the provisions of this article, all private rights and restrictive covenants over Order land owned by the undertaker or in which the undertaker has the benefit of an easement are extinguished on commencement of any activity authorised by this Order which would otherwise interfere with or breach such rights or restrictive covenants. “(3) Subject to the provisions of this article, all private rights and restrictive covenants over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land and so far as their continuance would be inconsistent with the exercise of the temporary possession of that land. “(4) Any person who suffers loss by the extinguishment or suspension of any private right or restrictive covenant under this Order is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act. ….. “(8) Reference in this article to private rights and restrictive covenants over land includes any trust, incident, easement, wayleave, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including natural right to support and personal covenants.” “(1) Subject to the provisions of this article, all private rights and restrictive covenants over land subject to the compulsory creation and acquisition of rights or the imposition of restrictions under this Order are suspended and unenforceable or, where so notified by the undertaker to the person with the benefit of such private rights or restrictive covenant, extinguished in so far as in either case their continuance would be inconsistent with the exercise of the right created and acquired or the burden of the restriction imposed— (a) as from the date of creation and acquisition of the right or the benefit of the restriction by the undertaker, whether compulsorily or by agreement, or (b) on the date of entry on the land by the undertaker under section 11(1) of the 1965 Act (power of entry) in pursuance of the right, whichever is the earliest. “(2) Subject to the provisions of this article, all private rights and restrictive covenants over Order land owned by the undertaker or in which the undertaker has the benefit of an easement are extinguished on commencement of any activity authorised by this Order which would otherwise interfere with or breach such rights or restrictive covenants. “(3) Subject to the provisions of this article, all private rights and restrictive covenants over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land and so far as their continuance would be inconsistent with the exercise of the temporary possession of that land. “(4) Any person who suffers loss by the extinguishment or suspension of any private right or restrictive covenant under this Order is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act. ….. “(8) Reference in this article to private rights and restrictive covenants over land includes any trust, incident, easement, wayleave, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including natural right to support and personal covenants.”

THE ISSUES AND GENERAL APPROACH

[45]Against that background, there are three grounds of challenge in relation to the Order. The first concerns the question of whether the reasoning of the panel (adopted by the Defendant) erred in a number of respects in relation to its application of the policy relating to heritage assets, and to the landscape and visual impacts of the proposed development and so failed to comply with section 104 of the 2008 Act. The second ground concerns Article 23 of the Order and whether the panel and the Defendant failed to consider whether it should provide for extinction of certain rights in perpetuity whereas the development consent expires after 30 years or failed to give adequate reasons for its conclusions. The third ground of challenge is that the decision-maker failed to give adequate reasons for its decision in relation to the application of the policies contained in EN-1 and EN-5.

[46]In the light of the grounds of claim, and the written and oral arguments, the principal issues that arise in this case are:(1) Did the Defendant misinterpret policy EN-1 in that he considered that it was only necessary to consider if the proposed development would cause substantial harm to the setting of Berain and failed to consider the presumption in favour of the conservation of designated heritage assets and failed to weigh the harmful impact on the significant heritage assets at Berain against the public benefit of the development as required in particular by paragraph 5.8.15 of EN-1?

(2) Given that the Defendant accepted that there were serious concerns over the landscape and visual impacts of the development, did the Defendant consider, and have available to him the necessary information to assess the alternative of partial undergrounding, that is placing the electricity line underground in the vicinity of Berain, having regard in particular to paragraph 2.8.4 of EN-5 and, in addition, did he have regard to that matter when considering the impact of the proposal on the setting of the listed buildings at Berain?

(3) Did the Defendant give adequate and intelligible reasons for his conclusions on the application of the relevant policies in EN-1 and EN-5?

(4) Did the Defendant give adequate reasons for providing a power in Article 23 of the Order to extinguish private rights permanently when consent for the development itself would expire after 30 years?

[47]By way of preliminary observation, the reasons for the grant of the development consent are contained in the decision letter of 28 July 2016 and the report of the panel, whose reasoning and conclusions the Defendant adopts in his letter of 28 July 2016. The principles governing review of the decision of the Defendant are agreed by the parties. In essence, the courts must read the decision letter, and the report which it adopts, in good faith and as whole: see South Somerset DC v Secretary of State for the Environment [1990] 1 P.L.R. 80 at page 83E-F. The issue is whether the decision-maker in his decision “leaves room for genuine as opposed to forensic doubt as to what he decided and why” (per Sir Thomas Bingham M.R. in Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council (1993) 66 P. & C.R. 263 at pages 271 to 272). It is not the court’s task to read into decisions something more coherent or less legally vulnerable than, on a fair reading, is contained there but equally it is not for the courts to strike down a decision which could have been better expressed if it is intelligible and free from error (see First Secretary of State v Sainsbury’s Supermarkets Ltd.

[2005] EWCA Civ 520

at paragraph 24). The courts will, in general, be concerned with considering the report and the decision letter and it is not appropriate to subject those documents to the kind of scrutiny appropriate to the process of interpreting a statute or a contract and, as the letter is addressed to parties who will be well aware of the issues, it is not necessary to address every argument relating to each matter (see Seddon Properties Ltd. and Another v Secretary of State for the Environment (1978) P. & C.R. 26). In relation to the adequacy of reasons for a decision, the test is set out in paragraph 26 of South Bucks District Council v Porter (No. 2) [2004] 1 W.L.R. 1953 in the following terms:

“36 The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

THE FIRST ISSUE – THE PROPER INTERPRETATION OF THE RELEVANT POLICY

[48]Mr Dixon, on behalf of the Claimant, contends that the Defendant failed properly to apply the provisions of EN-1 when dealing with the assessment of the impact of the proposed development on the setting of the listed buildings at Berain. He relied upon the fact that paragraphs 5.8.14 and 5.8.15 of EN-1 provide that there is a presumption in favour of the conservation of designated heritage assets, and that there is need to weigh the impact of the development against the public benefits of the development, recognising that the more significant the asset, and the greater the harm to the significance of the heritage asset, the greater the justification needed for the development. He submitted that the report of the panel, accepted by the Defendant, did not assess the extent of the harmful impact in this case on the setting of Grade II* listed buildings which are heritage assets of the highest significance, and did not weigh the harm against the benefits of the development. Rather, he submitted that the panel wrongly considered that the only relevant criterion was whether the harm to the setting of the Grade II* listed buildings was substantial (which is relevant to applying the particular test in paragraph 5.8.14 of EN-1 providing that development which would cause substantial harm to such assets should only be allowed in exceptional circumstances). Having found that the harm was not substantial, Mr Dixon submits that the Defendant should have, but did not, consider the different question of whether the public benefits of the development outweighed the harmful impacts.

[49]In my judgment, the report, read fairly and as a whole, does demonstrate that the panel (and hence the Defendant who accepted its findings and conclusions) did properly consider the approach to heritage assets. I reach that conclusion for the following reasons. First, the panel, in its section on the historic environment refers to and summarises the approach set out in section 5.8 of EN-5. It notes that the decision-maker is directed to identify and assess the particular significance of any heritage asset including its setting. It notes how paragraph 5.8.14 of EN-1 explains that the significance of a heritage asset can be harmed or lost through alteration or destruction of a setting. It notes that the policy goes on to say that substantial harm to designated assets of the highest significance (including Grade II* listed buildings) should be wholly exceptional. The report then goes on, in a separate paragraph at 5.4.5 of the report, to note that paragraph 5.8.15 of EN-1 explains that any harmful impact on the significance of a designated asset should be weighed against the public benefit of the development, recognising that the greater the harm to the significance of the heritage asset, the greater the justification will be needed for any loss. In other words, the panel was aware of and correctly summarised the relevant planning policy.

[50]Secondly, the panel did consider the impact on Berain. It accepted that the setting of Berain’s listed buildings had a heritage significance which merited consideration and considered the impact on Berain. However, it found that the proposed development would not cause substantial harm having regard to its proposed location, height, scale, materials and distance from the listed buildings (see paragraph 5.4.128 of the report). In reaching that conclusion, it also took into account the fact that the long term impacts of the proposed development had been addressed by an amendment to the draft consent order which provided that the consent order should expire after 30 years (see paragraph 5.4.103 of the report) and considered that 30 years in the life of the listed buildings would not be a substantial proportion of their life. As the panel considered that the harm was not substantial the first limb of the test in paragraph in 5.8.14 of EN-1 was not met although, it if had been, the proposed development would not, in its view, satisfy the second requirement, namely that such harm should only be allowed in exceptional circumstances. If the harm had been substantial therefore, the Panel would have concluded that the line should be placed underground and would have recommended refusing consent for the application as made (see paragraph 5.4.129 of the report). This section of the report, read properly and fairly, therefore, is addressed to considering the effect, or impact, of the proposed development on the setting of Berain.

[51]Thirdly, it is chapter 7 of the report that then sets out the panel’s conclusions on the main issues and it is in this section that it weighs the harm to Berain against the potential benefits offered by the proposed development. The panel then sets out its conclusions on the issues at section 7.6 of the report. It states that it has taken account of the potential benefits of the proposed development, primarily in meeting the needs for energy infrastructure to connect wind farms in north Wales to the electricity network. The panel expressly states that it has given careful consideration to the impacts on, amongst other things, listed buildings along the proposed route and it expressly states that it has “weighed in the balance, the potential harm to the setting of the listed buildings at Berain” (paragraph 7.6.6 of the report). Its ultimate conclusion on the balancing exercise is that development consent should be granted for 30 years.

[52]In my judgment, the report, read fairly and as a whole, does demonstrate that the panel did carry out the balancing exercise contemplated by paragraphs 5.8.14 and 5.8.15 of EN-1. It did so in a logical fashion. It identified that there would be harm in section 5 of its report, and concluded that the harm would not be substantial (which would have triggered an additional, stricter policy test). Then, when it considered its overall conclusions in section 7 of the report, it did weigh the benefits of the proposed development against, amongst other things, the harm to the setting of Berain that it had identified would occur in this case. The Defendant expressly stated at paragraph 14 of the decision letter that he agreed with the findings and conclusions of the panel in the report and the reasons given for his decision was those set out in the report. Furthermore, in setting out his conclusions the Defendant states that there is a compelling case for granting the development consent and that the case for the development was not outweighed by the potential adverse impacts of the development and that granting consent would be consistent with EN-1 and EN-5 (see paragraphs 87 of the decision letter). This was not a case where the only criterion that the Defendant applied was whether the harm caused by the proposed development to the setting to Berain would cause substantial harm. He did consider that issue. He also assessed the impact on Berain and weighed that against the potential benefits of the development in accordance with the relevant national policy statements.

[53]In relation to regulation 3 of the 2010 Regulations and the duty to have regard to the desirability of preserving the setting of a listed building. Mr Dixon submitted, in my judgment correctly, that that duty has to be performed alongside the obligation to decide the application in accordance with the relevant national policy statements. He accepted that if the Defendant had correctly considered the position in relation to the setting of Berain when applying the relevant paragraphs of EN-1, then no separate issue arose on the facts in the present case in relation to the 2010 Regulations but that if the Defendant had not done so, then an issue would arise in relation to regulation 3 of the 2010 Regulations. As explained above, the panel did comply with the approach set out in the national policy statement and did assess the level of harm that the proposed development would have on Berain. In any event, it is clear, in my judgment, that the panel and the Defendant did comply with the obligation in regulation 3 of the 2010 Regulations. The panel expressly referred to and summarised the duty in the opening part of its consideration of the historic environment and expressly stated that they had had regard to the desirability of preserving the setting of Berain (see paragraph 5.4.130 of the report). Furthermore, the panel decided to recommend, and the Defendant accepted, that the development consent should expire at the end of 30 years and did so in part as that would assist in ensuring that the impact upon the setting of the development would be minimised as the impact would last for a limited period which would not be a substantial proportion of the life of the buildings. Implicit in that approach, in my judgment, is a concern for the desirability of preserving the setting of the listed building.

THE SECOND ISSUE – PLACING THE LINE PARTIALLY UNDERGROUND

[54]The Claimant contends that the panel, and hence the Defendant, failed properly to consider the question of alternatives and, in particular, the question of placing the electricity line underground in the vicinity of Berain and that the panel did not have the evidential basis for concluding that alternatives such as the partial undergrounding of the electricity line had been considered or to carry out that exercise itself. Mr Dixon submitted that the only alternative that had been comprehensively assessed was placing the entire line underground, “full undergrounding” as it was called. Mr Dixon submitted that this approach was not consistent with paragraphs 3.7.10 of EN-1 and paragraphs 2.8.2 to 2.8.9 of EN-5. Mr Dixon submitted that the panel, and therefore the Defendant, had also failed to consider the possibility of placing part of the line underground when considering the impact on the setting of the heritage asset represented by the listed buildings at Berain.

[55]First, the national policy statements recognise that there is a need for new electricity lines of 132 kV and above including overhead lines. The policy notes that it is expected that overhead lines will generally be appropriate but that there will be cases where this is not appropriate and where there are serious concerns about the potentially adverse landscape and visual effects of a proposed overhead line, these will have to be balanced against other relevant factors including the need for the proposed infrastructure and the availability and costs of alternative sites and routes including undergrounding: see paragraph 2.8.8 of EN-5.

[56]Secondly, the panel considered that there would be serious concerns in relation to the landscape and visual impacts of the proposed development. Those could extend along the entire route in the view of the panel. The panel was, therefore, alive to the issue and the question of alternatives.

[57]Thirdly, it is correct that Manweb did not submit an option which included the placing of part of the line underground and did not seek consent for development which would include partial undergrounding. The panel was, however, provided with the range of cost per kilometre of placing the electricity line underground as described above.

[58]Fourthly, it is also correct, as Mr Dixon for the Claimant submitted, that the panel concluded that it could not consider granting consent for a development which involved placing the electricity line partially underground, that is in the vicinity of Berain. Such a proposal would require the installation of terminal poles at either end of the underground section (where the electricity line entered and then left the underground section). There was no environmental statement assessing the effects of that and that was not part of the application for which consent was sought. The panel would not therefore be able to consider and grant consent for a proposed development which had a section of the electricity cable going underground as that was not part of the application. That is the meaning of the final sentence of paragraph 4.5.94 of its report where it said that undergrounding of the route past Berain could not be considered in relation to the proposal being examined. It meant that consent for such a proposal could not be considered. If, however, partial undergrounding was a preferable and feasible option, the panel could have recommended declining consent for the proposed development – that is an entirely overhead line – on the grounds that a different proposal was preferable.

[59]The conclusion that this is the approach the panel took is further reinforced by the way it considered the question of what it would have recommended if it had thought that the proposed development would cause substantial harm. Then, as the panel explained in paragraph 5.4.129, it would have refused to recommend authorising the development as an alternative, an underground line, was preferable. Nor, incidentally, does that paragraph indicate that the panel considered that alternatives would only be considered if there were substantial harm (as suggested in paragraph 21 of the claim form). Rather, the panel was dealing with what it would have done if it had found substantial harm. That, in my judgment, is also how the Defendant understood the panel to have approached matters in its report as appears from paragraph 31 of the decision letter. The Defendant said (in a section of the letter headed consideration of partial undergrounding) that he had had regard to the comments in section 4.5 of the report and in particular the conclusions on, amongst other things, undergrounding and noted that there were no policy or legal requirements indicating that “consent be refused .. in favour of another alternative (partial or full undergrounding)”. That reinforces my interpretation of the report, that is, that the panel appreciated that it could not grant consent for a development involving placing part of the electricity line underground but that it could and did consider whether that course of action would have been preferable as that would have justified refusing consent for the development (an entirely overhead line) for which consent was sought.

[60]Fifthly, applying that approach, the panel concluded that, in relation specifically to landscape and visual impacts, the “balance of benefits from undergrounding would not clearly outweigh the extra economic impacts that would be incurred”: see paragraph 5.2.102 of the report. It reached that conclusion having regard to what it saw as the landscape and visual impacts of the proposed development (which affected, essentially, the whole route) and referred back to section 4.5 in relation to the costs of undergrounding. Furthermore, the panel also expressly considered the question of whether the electricity line should be placed underground in the vicinity of Berain in paragraph 4.5.95 of the report. It stated that the panel had given specific consideration in the context of the historic environment to the prospect of undergrounding sections of the route in the vicinity of Berain but reached the conclusion, having regard to various factors, including costs associated with the alternative, that that would not be justified. Furthermore, that was a logical place to consider that question: section 4.5 of the report was dealing with alternatives to an overhead line. The fact that the reasoning is brief and included in that section of the report in relation to historic environment could not, in my judgment, lead to any inference that the matter had not been considered.

[61]Finally, the panel did have sufficient information available to it to form that judgment. The panel had available and referred to the comparative costs of an overhead versus an underground line and discussed these in paragraphs 4.5.32 to 4.5.45 of the report. The panel considered that the information provided did contain sufficient details and was realistic and credible: see paragraph 4.5.93 of the report. There is no material before me to suggest that that conclusion is flawed.

[62]For those reasons, the panel did, in my judgment, consider the question of alternatives such as undergrounding both in relation to the landscape and value impacts of the proposed development and, additionally, in relation to the impact on the setting of the listed buildings at Berain. THE THIRD ISSUE – THE ADEQUACY OF THE REASONS IN RELATION TO THE NATIONAL POLICY STATEMENTS

THE THIRD ISSUE – THE ADEQUACY OF THE REASONS IN RELATION TO

[63]In the light of the conclusions on the first two issues, the third issue can be dealt with shortly. Ground 3 of the claim form contends that the Defendant did not give adequate reasons for his conclusions that the application was consistent with the relevant polices in EN-1 and EN-5. The panel did give adequate, intelligible reasons for its conclusions on the relevant parts of EN-1 and EN-5. The Defendant agreed with the panel’s conclusions and findings and said that his reasons for granting the consent were those identified by the panel. In the circumstances, reading the decision letter and the report fairly and as a whole, the Defendant did comply with the obligation in section 116 of the 2008 Act.

THE FOURTH ISSUE – REASONS FOR ARTICLE 23 OF THE ORDER

[64]The Claimant contends in ground 2 of his claim that the Defendant granted consent for a period of 30 years only but recommended granting powers to extinguish private rights in perpetuity. Mr Dixon accepts that the panel considered the question of whether or not the powers of compulsory acquisition of interests in land conferred by Article 18 should be granted in perpetuity or for a limited period and that the panel explained why they recommended that those rights should be created in perpetuity. He submits that there is no reasoning in the report, or the decision letter, dealing with the question of whether the extinguishment of private rights held by others over land should be limited or granted in perpetuity as provided for by Article 23 of the Order. He submits that it is not possible therefore to determine whether the panel did or did not consider this question and, further, that there are no adequate reasons given for the decision that the power should be capable of permanently removing private rights. In his skeleton argument, Mr Dixon submitted that persons cannot know whether the decision to provide for a power to extinguish private rights (as opposed to suspending them) was a deliberate decision or the result of an administrative oversight.

[65]Article 18 of the Order provides for the undertaker to create and acquire compulsorily the rights, or impose restrictions over the Order land described in the book of reference and shown on the land plans. The “Order land” is defined by Article 2 of the Order as meaning the land required for, or required to facilitate or incidental to, or affected by, the authorised development. The panel explained in section 8 of its report why the powers of compulsory acquisition of rights over land should not be time limited notwithstanding that the development consent itself expired after 30 years. In essence, there was a need to create such rights in order to implement the development consent. That could only be done by having a power to acquire rights or by granting temporary possession. The panel considered that the compulsory acquisition of rights was preferable as temporary possession would mean excluding persons from the land for 30 years, not merely granting rights over the land. Further, the rights would be linked to the use of the proposed development and would cease, in practice, to be used once the development consent expired. No challenge is made to that reasoning.

[66]Article 23 of the Order relates to private rights and restrictive covenants over land which is subject to the compulsory creation and acquisition of rights or the impositions of restrictions under the Order (that is, in particular, land in respect of which rights and restrictions may be imposed under Article 18 of the Order). Such rights are suspended and unenforceable or, subject to the giving of notice by the statutory undertaker, extinguished “in so far as in either case their continuance would be inconsistent with the exercise of the right created and acquired or the burden of the restriction imposed”. In other words, the compulsory acquisition of one right over certain land, may result in the suspension of the exercise of another right enjoyed over the land or, subject to notice, that other right may be extinguished. That can only be done where the continued exercise of the right would be inconsistent with the exercise of the right created by the powers of compulsory acquisition. A person who suffers loss as a result of extinguishment or suspension is entitled to compensation: see Article 23(4) of the Order.

[67]Examples of the potential operation of that system are given in the witness statement of Mr Thomas for Manweb. He explains that it may be necessary to place a wooden pole over an existing drain where a person has a right to run water through the drain. It may be necessary to construct a drain on another portion of land and to have a right to run water through that drain. Article 18 of the Order provides powers to do. It may then be necessary to deal with the right of a person to run water through the existing drain as that may be inconsistent with the exercise of the right to run water through the new drain, constructed to enable the development to be built. Article 23 of the Order provides for the suspension or extinguishment of private right (with compensation payable if loss results) if their continuance is inconsistent with the exercise of the rights created. Thus, if the drainage system has been relocated and new drains constructed for that purpose, the statutory undertaker may be able to demonstrate that is inconsistent with the exercise of the right created (to run water through the new drain) to leave the existing right (to run water through a discontinued drainage system) in place.

[68]First, as a matter of principle, the inclusion of a power such as that contained in Article 23 of the Order is capable of being lawful. Section 120, and Schedule 5 to the 2008 Act, expressly contemplate that provisions of such a nature may be included within an order granting development consent. The fact that the power provides for the permanent extinction of private rights whereas the development consent itself will expire in 30 years does not of itself render the inclusion of Article 23 in the Order unlawful or necessarily disproportionate. It is possible to envisage situations in which the permanent extinguishment of a right, consequent upon the compulsory acquisition of another right (as in the example given above) is necessary.

[69]Further, the terms of Articles 18 and 23 of the Order are carefully defined. The rights in Article 18 may only be created over Order land, that is land required for, or required to facilitate or which is incidental to, or is affected by the development. Article 23 of the Order may only be used over land which has been subject to the compulsory creation and acquisition of rights and where the continuance of the existing rights would be inconsistent with the exercise of the newly created and acquired right. Furthermore, if loss is suffered compensation is payable. The removal or extinction of the private law rights of a person is a serious and significant matter. In the present situation, however, the removal of rights is provided for by law and can only be done in narrow, defined circumstances, in the context of implementing a development which is in the public interest, and on payment of compensation if loss is suffered. As a matter of principle, therefore, the inclusion of the powers of extinguishment set out in Article 23 is capable of being lawful and within the powers conferred by the 2008 Act to make such an order.

[70]Secondly, it is clear on the evidence as a whole, that the panel did in fact consider whether the provisions contained in Article 23 should be included in the Order. It specifically asked written questions as to the purpose of the proposed Article 23 and for examples of its possible use. It also raised the issue of whether the development consent should be time limited and was considering the question of whether the power to acquire rights compulsorily should also be time limited. Given that the panel was considering the questions of the time limits on the development consent and the powers of compulsory acquisition, the inference, in my judgment, is that it was aware of the terms of Article 23 of the Order and it did consider whether or not to recommend the inclusion of powers of the nature provided for by Article 23 of the Order in perpetuity.

[71]Thirdly, the question then is whether the absence of any reasons explaining its decision to recommend inclusion of provisions of the sort contained in Article 23 of the Order is a breach of section 116 of the 2008 Act and, if so, whether that renders the Order invalid. I accept that the report of the panel does not specifically refer to the question of the extinguishment of rights under what became Article 23 of the Order. It referred in detail to the related, but different, topic of the creation and acquisition of rights compulsorily. Section 116 of the 2008 Act requires the defendant to give reasons for making the Order granting development consent. The decision of the House of Lords in South Bucks District Council v Porter (No.2) confirms that that obligation should be read as requiring the giving of adequate, intelligible reasons enabling the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues. The reader of the decision letter and report must be able to know why the issue was decided as it was. The issue of the power to provide for the extinguishment of private rights in the very limited circumstances provided in Article 23 of the Order was not, in my judgment, one of the principal important controversial issues. It was not a principal issue. It was not important in terms of the issues raised or matters on which representations made. It was not an issue of real controversy. There had, it seems, been one representation (not made by the Claimant) on the issue. It would not, in my judgment, be correct to regard the absence of any specific mention of the power of extinguishment of private rights as a breach of section 116 of the 2008 Act.

[72]The Defendant and the First Interested Party raised, alternatively, the question of whether as a matter of discretion, the court ought to refuse to quash the Order even if it found that there had been a failure to comply with section 116 of the 2008 Act. Given that I have not found a breach of section 116 of the 2008, that issue does not need to be resolved. My provisional view is that I would not have quashed the Order in its entirety as a result of any failure to give reasons for the inclusion of the power of extinguishment in Article 23 of the Order. On balance, at most, the appropriate order would have been an order quashing the material parts of Article 23, that is excising by quashing the words “or, where so notified by the undertaker to the person with the benefit of such private rights or restrictive covenant, extinguished” in Article 23(1) of the Order (and, possibly, the words “by extinguishment” in Article 23(4) of the Order). That would appear to satisfy the test in D.P.P. v Hutchinson [1990] 2 A.C. 783 of textual severability in that the relevant words may be disregarded and “what remains is of the text still grammatical and coherent” (see page 904F-G per Lord Bridge of Harwich). Such an approach also appears to satisfy the test of substantial severability in that there would be no change in the substantial purpose and effect of the Order. The Order would authorise the development. It would provide (in Article 18) for the compulsory acquisition of rights. It would provide (in the part of Article 23 of the Order not quashed) for the suspension of rights whose exercise would be inconsistent with the compulsorily created or acquired rights.

[73]An alternative remedy might be to declare that there had been a breach of section 116 of the 2008 in that reasons had not been given for the inclusion of the power of extinguishment of private rights in Article 23 of the Order, but not to quash the Order, or any part of Article 23 of the Order. That remedy might well be more appropriate in the event that the court were satisfied that Article 23 would have been included in the form it was, notwithstanding the absence of reasons. As I have concluded that there has been no breach of section 116 of the Act, and no failure to give reasons, and as there has not been full argument on the issue of the discretion of the courts in relation to remedy, it is not necessary or appropriate to comment further on this matter.

CONCLUSION

[74]The Defendant correctly applied the relevant policies in EN-1 and EN-5 when determining the application for development for the construction of the overhead electricity line. He did assess the significance of the impact of the proposed development on the setting of Berain and did weigh the impact against the public benefits of the proposed development. He did consider alternatives including placing all, or parts, of the electricity line underground, both in the context of the serious concerns about the landscape and visual impacts of the development and on the specific issue of the impact of the proposed development on the setting of Berain which constituted a significant heritage asset. The Defendant gave adequate intelligible reasons for his conclusions on the application of the relevant national policy statements. The inclusion of a power to extinguish private rights in the limited circumstances set out in Article 23 of the Order was not a principal controversial issue and did not require specific reasons to be given. The Defendant complied with his duty in section 116 of the 2008 Act to give reasons for making the order. For those reasons, the claim for judicial review is dismissed.