High Court dismisses claim of “chilling effect” on planning process from “no objection” clause in voluntary land agreements

High Court dismisses claim of “chilling effect” on planning process from “no objection” clause in voluntary land agreements

The Rt. Hn. Lord Justice Holgate has dismissed the latest in a series of judicial review attempts in respect of the East Anglia One North and East Anglia Two offshore wind consents in SAES v Secretary of State for Energy Security and Net Zero [2023] EWHC 1796 (Admin).

Following a dismissal on the papers and a renewal hearing, Lord J Holgate handed down his decision on Friday, concluding it is normal for option agreements to contain no objection clauses i.e. clause preventing the land interest from objecting to the planning application.?

Likewise, Lord J Holgate found it was normal course of practice for modest incentive payments to be made, to seek to ensure voluntary agreements are entered into sooner rather than later.?Such sums payable to landowners are not to buy silence but are for the grant of options and purchase of property rights.

The claimants had argued that the Secretary of State had failed to consider the “chilling effect” or “distorting impact” (used interchangeably) of the “no objection” clause on the planning process, and that improper payments had been offered and made to secure withdrawal of objections. ?The claimants did ultimately concede these payments were lawful but contended the Secretary of State failed to properly consider the “serious complaint” in this regard.?

In a somewhat lively judgement, Lord J Holgate dismissed the claim on all grounds.?

Going back to first principles which all UK lawyers will remember fondly from law school, Lord Holgate referred to various precedents, including Associated Provincial Picture Houses Ltd. v Wednesbury Corporation?[1948] 1 KB 223.?Lord J Holgate quoted Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council?[1977] AC 1014 that:

“the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”?

Ultimately Lord J Holgate found that the Secretary of State had acted rationally in his consideration of the matters before him, with reliance also on the Examining Authority’s report, in granting both consents.

There are a few other points of interest in the judgement, which are worth noting:

?·????????The claimant, defendant and interested parties ultimately agreed that the Court could not quash the Development Consent Orders (the relevant planning consents) in part.?The claimants had initial sought the Orders to be quashed as they related to onshore elements only [paragraph 13];

?·????????Despite finding signed Heads of Terms were not legally binding contracts, Lord J Holgate said the confidentiality provisions in the Terms meant the developer “would probably have been able to bring a claim for breach of confidence in relation to disclosure of the contents of the Heads of Terms” [paragraph 83];

?·????????In considering the scope of an environmental impact assessment, Lord J Holgate referred to the authorities on what constituted “full information” for this purpose, and added [paragraph 60]:

?“I would merely add that the word "full" has a wide range of meanings depending upon the context in which it is used. "Full" is used in the sense of sufficient to meet the requirements of the legislation and not, for example, full to capacity or exhaustive”

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