On 24 January 2024, Leigh Day, acting on behalf of the Good Law Project, sent a second letter before claim to the United Kingdom’s Secretary of State for Energy Security and Net Zero. It is argued that the Secretary of State unlawfully decided to designate the new EN-1 and EN-3 on 17 January 2024.
According to the Good Law Project, “[t]he Government has made it harder to generate power from wind than from incinerators”.
The letter before action contains a timeline of steps taken by the UK Government that excluded onshore wind power from its list of projects with ‘national significance’.
In February 2023, the UK Government commissioned the National Infrastructure Commission (NIC) to do research into the role of National Policy Statements and the country’s infrastructure planning system.
National Policy Statements set out the legal framework for planning decisions. The National Policy Statements on energy were updated in 2021. The Government at the time had called for a public consultation. Numerous respondents had called for onshore wind to be included in the National Policy Statements.
The NIC published its study in April 2023, in which it had concluded: “To achieve net zero, the system also needs to include all viable forms of renewable, including onshore wind”. The NIC explicitly said that onshore wind should be brought back within the scope of the National Policy Statements.
However, in November 2023, the Department for Business, Energy & Industrial Strategy published the final drafts of the National Policy Statements EN-1 and EN-3. Onshore wind remains excluded from the National Policy Statements.
The Good Law Project argues that this exclusion is unlawful, as no reasons were provided as to how the exclusion takes account of the Government policy on mitigation of and adaptation to climate change (which is required by section 5 of the Planning Act 2008).
Moreover, the Good Law Project that failure to heed the NIC’s advice but not giving any reasons as to why, is a breach of established case law principles (e.g. Shadwell Estates v Breckland DC [2013] EWHC 12 (Admin) at [72]). The UK Government also failed to take into account any of the public’s responses to its consultation, which it is required to do under section 7(6) Planning Act 2008.
Finally, the third ground maintained by the Good Law Project, is that the Secretary of State fettered her discretion, meaning she adopted an overly rigid policy.
Overall, the Good Law Project’s aim is to “force Ministers to explain why they’ve excluded onshore wind from the list of infrastructure projects that are nationally significant and to put onshore wind back into the Government’s renewable energy policy”.
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