The Bramford to Twinstead overhead line project was granted development consent by the Secretary of State on 12 September 2024.

In this article, my colleagues Maelor and Alex outline the key points from the decision and explore how these can guide developers in future applications.

Making a clear need case

The need for the project was given substantial weight in the Secretary of State’s decision. It was the only aspect of the planning balance which was allocated "great" weight rather than "moderate", "little" or "neutral" weight. 

This is a helpful reminder for developers that making a clear need case is a crucial part of any application. It is particularly notable given that the project did not benefit from the strengthened policy position it would have enjoyed under the 2024 NPS EN-1 (which introduces the policy of critical national priority, including for qualifying electricity transmission infrastructure). 

Biodiversity Net Gain

Whilst biodiversity net gain (BNG) was not mandatory for this application, it was offered by the applicant. 

The decision noted that there was some initial confusion about the status of the BNG proposals for the project and how they would be distinguished from other proposals for habitat mitigation, reinstatement and compensation. However, the Examining Authority was ultimately content that this was sufficiently clarified during the examination.

This reinforces that in order to avoid any unexpected issues at the examination stage, applicants should be clear on how BNG will be delivered and distinguished from other habitat measures.

As we look ahead, this will become increasingly important for applicants to get right, with the Government set to implement mandatory BNG on Nationally Significant Infrastructure Projects accepted for examination from November 2025.

The importance of good design

The Examining Authority and Secretary of State agreed that the Applicant had, at times, fallen short in demonstrating their commitment to good design although this would carry little weight in determining the application. 

One issue cited as evidence of this was the Applicant's approach to a permanent access road, where the Applicant added a commitment to use a landscape architect to advise on suitable finishes. The Examining Authority considered this to fall short of committing to good design and recommended that the landscape architect should have been allocated a more fundamental design role. 

Although little weight was given to the design in the making of the Order, the decision reinforces that examining authorities require clear detail and evidence that sufficient thought has been given to design. Applicants should be mindful of this, particularly if they are aware of any issues arising from Landscape and Visual Impact Assessments. 

Classification of "open space"

The Applicant sought rights over special category land, classed as open space, and considered that the relevant exemptions applied for the Order not to be subject to special parliamentary procedure. In doing so, the Applicant took a precautionary approach by including all land that could be considered to be open space within the application. 

The Examining Authority and Secretary of State considered the Applicant's classification of open space, both highlighting that the key issue is whether the statutory definition is satisfied as set out in s19(4) of the Acquisition of Land Act 1981. In applying the statutory definition, particular emphasis was also placed on whether the parcels of land in question could be considered to be publicly accessible.

Although both the Examining Authority and the Secretary of State doubted that two of the four parcels of special category land could be classified as open space, they proceeded to apply the relevant exemption tests on a precautionary basis. It is advisable that developers consider the definition closely if there are any uncertainties as to whether specific parcels of land will qualify as open space. 

Compulsory acquisition

The Secretary of State’s decision letter underlined that although all land within the order limits is considered necessary, compulsory acquisition powers should only be used where required. This is a general principle which developers will be aware of. Nevertheless, it serves as a useful reminder of how projects should approach compulsory acquisition. 

The decision also provided for the compulsory acquisition of land for BNG in the event that voluntary agreement cannot be reached. In doing so, it was noted that this approach was consistent with paragraph 2.6.6 of the 2024 NPS EN-5, which includes BNG as one of the purposes for which an Applicant may seek the compulsory acquisition of land or rights over that land. 

Management plans

The Applicant had attempted to include final management plans as part of the application, but this approach was rejected by both the Examining Authority and Secretary of State, with amendments made to the Order to ensure the final management plans would be signed off by the relevant planning authority on the basis that the plans submitted were high level and often contained generic measures.    

How can Burges Salmon help?

Our Planning & Compulsory Purchase team has extensive expertise advising on DCO applications having advised promoters of numerous high profile NSIPs including a range of electricity grid projects across different consenting regimes in England and Wales.

Please contact Alex Minhinick or Maelor James in our Planning & Compulsory Purchase team if you have any queries.