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Aquind interconnector: What happened and what’s next?

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On January 24, 2023, the High Court issued its decision on a challenge by Aquind against the Secretary of State for Business, Energy and Industrial Strategy to refuse its application to build the UK side of an electricity interconnector from France to the UK. What happened and what are the implications?


Aquind wishes to build an interconnector between France and the UK and applied for permission to do this under the Planning Act 2008, a special consenting regime for large infrastructure projects (which replaces planning permission and Electricity Act consent). 

On January 20, 2022, however, the Secretary of State refused the application, saying that instead of the onshore cable running through Portsmouth to a substation near the South Downs National Park called Lovedean, Aquind should have considered an alternative connection at Mannington, 15 miles to the west. Mannington had been considered at one point but its spare capacity was booked by the Navitus Bay wind farm, which went on to have its own application under Planning Act 2008 refused, freeing up the capacity.

The judgment

The challenge against the refusal succeeded on no fewer than four grounds. First, Navitus Bay had not been the sole reason to reject Mannington, it would also have required strengthening the line between there and Lovedean, with all the attendant environmental effects of that, and the Secretary of State ignored that.

Secondly and thirdly, the Planning Act 2008 requires checking that projects accord with National Policy Statements. The overarching National Policy Statement for energy has a checklist for how to deal with possible alternatives; the Secretary of State only mentioned two of the eight items on the checklist and ignored the others. Not complying with the Planning Act 2008 and the National Policy Statements were separate grounds in the claim but the judge took them together.

Finally, there is a general principle that if you are going to decide something you must at least look into it to some extent. Just saying that the Mannington alternative existed fell far short of checking if it was viable for the project, and the judge decided it was irrational to refuse the application on the basis of something the Secretary of State hadn’t explored. For the legally-minded this is known as the Tameside duty after a 1977 case.

The implications

The first implication is not that the interconnector can now go ahead – it merely goes back one stage in the Planning Act 2008 process and the Secretary of State has to take the decision again. On past performance (this has happened once before for a gas storage project) it could be over a year before that happens.

The second implication is not that the new decision will necessarily be an approval of the project – it could still be a (better argued) refusal. The project is heavily opposed in the Portsmouth area, not least by both Conservative MP for Portsmouth North Penny Mordaunt and Labour MP for Portsmouth South Stephen Morgan. However, the panel of inspectors that examined it concluded that it would be of significant benefit to the UK, and so the adverse impacts would have to be quite severe to override this (which is essentially the test that the Secretary of State has to carry out).

Infrastructure delays

In general it seems to take years for projects like this to get approved and constructed. I would argue that ‘planning’ may be a convenient target but is not necessarily the main culprit for projects taking longer than necessary. 

By its very nature the planning stage of a large infrastructure project takes time, if its impacts are to be properly understood and those affected by it are able to have their say and be heard (and I would disagree with those who think we should just ‘get on with it’ without carrying out such measures, as that would create even greater problems down the line). 

Having said that, too many infrastructure planning decisions are being postponed. The Government is looking at ways to speed this stage up, although I don’t think the savings will be huge – indeed the Planning Act 2008 itself was a major speeding up of the previous regimes.

More to blame are out-of-date policies, which mean that either projects are being measured against the wrong criteria or there is unnecessary uncertainty as to whether they will get consented or not. This leads either to more refusals or fewer applications, because developers don’t want to take the risk. 

Policies also need to keep up with factors like the urgency of net zero, and so allow the consenting of projects before the need case is watertight; electrical connections are a case in point – we can’t take years building generation and only then get round to connecting it. 

Financial considerations are also important and investors are nervous about risking their money when there is uncertainty about their returns.

Issuing irrational decisions like the Aquind one is clearly not very helpful for ensuring that the UK has the infrastructure it needs.

Angus Walker

Partner at law firm BDB Pitmans

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