Solar farms on agricultural land

Stephen Tromans QC, Philippa Jackson and Jon Darby examine current government policy on locating solar PV schemes on agricultural land.

The Government has repeatedly emphasised its commitment to increasing the supply of renewable energy. In accordance with European Union Directive 2008/28/EC, published in April 2009, the UK’s target is for 15% of all energy consumed to be from renewable energy sources by 2020. The UK’s published solar PV strategy (October 2013 and April 2014) makes it clear that there is a considerable need for more generating capacity, if targets for renewable energy and, specifically, solar photovoltaic energy are to be met, that cost-effective solar PV projects which deliver genuine carbon reductions are to be supported and that all local planning authorities have responsibility for assisting in achieving these objectives.

However, following the publication of the online Planning Practice Guidance and certain Ministerial Statements, the Government’s stance towards locating PV projects on agricultural land is perhaps rather less clear. Particularly in rural areas, large swathes of which may be classified as best and most versatile agricultural land (i.e. land which is Grade 1, 2 and 3a on the Agricultural Land Classification) (“BMVAL”), there is arguably a degree of tension between national and local policies which seek to preserve the agricultural use of such land and policies which encourage the production of renewable energy, including solar PV schemes.

In terms of agricultural land, paragraph 112 of the NPPF states that the economic benefits of BMVAL should be taken into account, with preference being given to areas of poorer quality land. The NPPF defines BMV land as being classified as grades 1, 2 and 3a. The PPG identifies a number of factors which should be taken into account by Local Planning Authorities when determining applications for large-scale PV solar farms, including encouraging the effective use of land by focussing large scale solar farms on previously developed and non-agricultural land, provided that it is not of high environmental value and, where a proposal involves greenfield land, considering whether:

• the proposed use of any agricultural land has been shown to be necessary and poorer quality land has been used in preference to higher quality land;
• the proposal allows for continued agricultural use where applicable and/ or encourages biodiversity improvements around arrays.

This has led some Local Planning Authorities to argue that applicants are required to undertake a sequential assessment, similar in kind to those undertaken in support of applications for retail development, to demonstrate that no land of lower agricultural value (or indeed non- agricultural land) is available on which to locate a proposed large-scale solar PV scheme. It is, however, notable that to require an applicant to demonstrate compliance with an undefined sequential test would often be merely to set them up to fail. Furthermore, whilst recognising that large scale solar farms can have a negative impact on the rural environment, particularly in undulating landscapes, the PPG notes that not only can the visual impact of a well-planned and well screened solar farm be properly addressed within the landscape if planned sensitively but also that many proposals allow for continued agricultural use and/or biodiversity improvements around arrays. Indeed, there is often significant potential to mitigate landscape and visual impacts through, for example, screening with native hedges.

Notwithstanding the ‘high-water mark’ of an appeal decision in Suffolk (APP/D3505/A/13/2204846) in which it was suggested that there was “a clear sequential test in national policy”, a number of subsequent appeal decisions have confirmed that neither the NPPF nor the PPG imposes any requirement to undertake a formal sequential assessment. Thus, in an appeal at Westerfield Farm, Carterton, Oxfordshire (APPD3125/A/14/2214281) the Inspector observed, at para. 43, that: “It is not local or national policy for a developer to be required to prove that there is no better alternative location for a development before planning permission may be granted.” Similar comments were made by an Inspector in appeals at Land at Priors Byne Farm, Bines Road, Partridge Green, West Sussex RH13 8NX (APP//3825/A/14/2219843) and Hacheston, Suffolk (APP/J3530/A/13/2193911).

On 25 March 2015 the former Secretary of State, Eric Pickles MP, published a ministerial statement on solar farms, in which he emphasised that proposals for a solar farm involving best and most valuable agricultural land (“BMVAL”) would need to be justified by “the most compelling evidence” albeit that each application must be considered on its merits, in the light of material considerations.

What, then, is likely to satisfy the threshold of “the most compelling evidence”? Some guidance can be found in recent appeal decisions. Firstly, there is no prohibition on developing greenfield land. Secondly, this evidence does not have to take the form of a sequential assessment, although in practice it may be difficult for applicants to demonstrate that the use of BMVAL is justified, unless they can also show that they have considered and discounted other sites within a proportionate search area on the grounds of land quality or unsuitability. While a detailed analysis of such assessments is outside the scope of this article, the starting point is always likely to be the availability of a grid connection, as this is clearly a prerequisite for any PV scheme. Given the highly constrained capacity of the grid in many areas of the country and the need for connection costs to be viable for a commercial scheme, this requirement may narrow the scope of an applicant’s search considerably. Furthermore, there will also be a number of elements to an energy company’s site search that are influenced by their business model, the fiscal environment and the nature of the financial package that they may put together for landowners. As such, provided that the company’s response to such elements, and how they are fed into any site search that may be conducted, can be shown to be rational and not a typical for the industry as a whole then it is likely that they will be found to be reasonable factors properly influencing the selection of a proposal site. The same will also probably be true in relation to the question of disaggregation and whether it would be feasible for the proposal to be broken down into smaller, constituent, elements in order that it could be made to fit onto a number of small sites, perhaps on brownfield land or in the form of rooftop arrays. However, again, it is likely that grid connectivity will be a powerful influencing factor in terms of whether such an option would be realistic and financially viable alternative in any given circumstance.

Thirdly, there are other positive and/or mitigating factors, which may be relevant when considering whether the loss of agricultural land is justified. For example, as noted above, it is common practice for some form of agricultural use to continue alongside such schemes, usually in the form of sheep grazing. The lifetime of solar PV sites is inherently limited as the arrays deteriorate over time and typically permission is granted for around 25-30 years. Removing the land from intensive agricultural use for such a period of time will give the land an opportunity to regenerate and is likely to lead to an improvement in its quality over time, when coupled with suitable conditions to ensure restoration. Renewable schemes, such as solar PV, can also assist with the diversification of agricultural holdings, in accordance with the economic objectives set out in paragraph 28 of the NPPF. Moreover, in our experience, solar PV schemes usually attract less local opposition in terms of visual impact, noise and other amenity issues, than wind turbines generating equivalent levels of renewable energy.

Ultimately, the impact on BMVAL is an important material consideration in the determination of any planning application for a large-scale solar PV scheme but it is not a trump card. Each application must be considered on its merits and, in every case, the contribution towards increasing the supply of renewable energy and meeting national targets must also command significant weight.

Stephen Tromans QC, Philippa Jackson and Jon Darby are barristers at 39 Essex Chambers.

Stephen and Philippa represented Elgin Energy (instructed by Phillips Planning Services) on an appeal against refusal for a 30 MW solar PV proposal in West Norfolk. Stephen and Jon are representing Good Energy (instructed by Norton Rose Fulbright LLP) on an appeal relating to a 12.8 MW scheme in Cornwall. Both involve effect on BVMAL as the main issue.