The High Court’s judgment in EfW Group Ltd v Secretary of State for Business, Energy and Industrial Strategy involves a judicial review of a decision not to grant a development consent order (DCO) for one of two proposals for energy-from-waste development.  It focuses on the statutory framework for deciding a DCO application and the question as to whether sections 104 and 105  Planning Act 2008 are mutually exclusive, including where a direction under section 35 has been made.

The facts

The applicant, EfW Group Ltd, is a developer and operator of an existing energy-from-waste plant in Kent.  The applicant proposed two developments: the first to increase the capacity of the existing plant (the First Proposal); and the second to develop a new waste-from-energy facility (the Second Proposal).  The First Proposal required a DCO because the increase in capacity took it over the 50MW threshold for a generating station,  making it a nationally significant infrastructure project (NSIP). As a result, a DCO was required for this development under the Planning Act 2008.  The Second Proposal did not, in its own right, constitute an NSIP because its capacity was below this threshold.  However, the Secretary of State made a direction under section 35 Planning Act 2008 in relation to the Second Proposal which meant that a DCO was required for that proposal too. 

Section 35 applied as the Second Proposal’s proximity to the First Proposal meant that cumulatively the two developments could be a significant facility of national sustainable energy supply. 

Secretary of State’s decision

The examining authority’s (ExA)  report considered both proposals in the context of the decision-making framework of section 104 and section 105 Planning Act 2008. 

Section 104 applies where a national policy statement (NPS) applies.  Where this is the case, there is a presumption in favour of granting consent to applications which accord with NPS policies.

Section 105 applies where no NPS applies.  Here the Secretary of State must have regard to any local impact report as well as other relevant matters (which can include any NPS).

The ExA took the view that section 104 applied to the First Proposal and that section 105 applied to the Second Proposal, despite the fact that both proposals were covered by a single application for a DCO. 

The ExA concluded that the First Proposal complied with the applicable NPS and that consent should be granted. Although the Second Proposal would be in line with the NPS, this was not an overriding consideration under section 105.  As the Second Proposal was inconsistent with the applicable local plan, in particular in respect of the waste hierarchy, it concluded that consent should not be granted for the Second Proposal. 

The Secretary of State considered the ExA’s report, but decided that the whole application (including the Second Proposal) had to be considered under section 104 on the basis that sections 104 and 105 were mutually exclusive and that section 104 required the application to be treated as a whole.  This meant that more weight  should be given to the NPS in respect of the Second Proposal.  However, the Secretary of State came to the same conclusion that a DCO should not be granted for the Second Proposal because its benefits were outweighed by it not being in accordance with the local plan. 

Judicial Review

The applicant brought judicial review proceedings to challenge the Secretary of State’s decision.  The applicant suggested that because section 104 applied to the whole application (and therefore both proposals), the Secretary failed to apply the presumption in favour of granting consent to applications which accorded with the applicable NPS.  The applicant argued that the effect of the section 35 direction to treat the development as one for which a DCO was required, brought it within the scope of section 104 so that it should be treated as an NSIP.  

High Court’s decision

The High Court disagreed with the applicant and held that the section 35 direction did not have the effect of bringing the Second Proposal within the scope of section 104.  The words “be treated as development for which development consent is required” within section 35 simply have the effect of making the proposed development subject to the decision-making framework for a DCO.  It does not turn a project which is not an NSIP into an NSIP.  On the basis of the overarching approach of the Planning Act 2008 to decision making, the High Court decided that sections 104 and 105 are not mutually exclusive.  Section 105 should be interpreted as applying to those discrete elements of an application to which an NPS does not apply.

The Secretary of State therefore made an error of law in determining the whole of the application within the framework of section 104, because it should have assessed that part of the application relating to the Second Proposal in accordance with section 105 (as done by the ExA).  However, the High Court was satisfied that in this case the decision of the Secretary of State would have been the same if the error of law had not been made.  As a result, the High Court did not quash the Secretary of State’s decision.  

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Contributor: Florien Stone

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions

Written by

Katherine Evans

Katherine Evans

Date published

21 October 2021

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