Judge rejects claim planning inspector dealt with application in procedurally unfair way

The Planning Inspectorate acted properly in rejecting an application for a solar park because of concerns that archaeology below the site had not been adequately assessed, the High Court has ruled.

His Honour Judge Jarman KC, sitting as a judge of the High Court, said in his judgment that developer Low Carbon Solar Park 6 had failed to show any procedural unfairness occurred.

The developer had exercised an option under section 62A of the Town and Country Planning Act 1990 to apply directly to the Secretary of State for Levelling Up Housing and Communities, which was available because Uttlesford District Council had been designated as not adequately determining applications under section 62B of the Act.

The developer had made a similar earlier application and commissioned a geophysical survey in March 2022, which suggested “significant and extensive archaeological activity at three locations in the proposed development site”, the court was told.

It amended the application to exclude two areas and then went direct to the Secretary of State but sought no further pre-application advice, including from the Planning Inspectorate.

That body issued a screening direction that stated: “On the basis of the information provided, the Secretary of State considers that the proposed development has the potential to give rise to significant visual effects and significant cumulative effects including those on the local landscape through an increase in the amount of electrical infrastructure within the locality.”

By February 2023, Essex County Council’s archaeologist had submitted a report that said: “The applicant should be required to conduct a field evaluation comprising targeted trial trenching to establish the nature and complexity of the surviving archaeological assets identified in the geophysical survey.

“The significance of the moated site identified needs to be established pre-determination therefore this should be undertaken prior to a planning decision being made.”

The court was told that without trial trenches it was impossible to know what archaeological assets lay below ground.

Giving a decision, the planning inspector concerned said: “Clearly there is an incomplete picture in the evidence before me. The geophysical survey has found evidence of Romano-British enclosed structures; yet it is unclear whether there is any discernible evidence as to what these are and what other archaeology remains.”

His role was to “consider what is reasonable and proportionate based upon the available evidence before me.

“Despite evaluation carried out to date, I cannot be assured of the specific nature or significance of the potential buried archaeological remains.

“An understanding of the significance of any heritage asset is the starting point for determining any mitigation, and therefore I am unable to assess whether the mitigation proposed would be appropriate. Similarly, I cannot be certain of the potential harm that may result to the archaeological interest from the proposal, for example through the siting of solar arrays and the groundworks required.”

He found the application failed to provide sufficient evidence regarding potential archaeological remains or features of interest, “such that I cannot be assured that material harm to archaeological remains would not result”, and concluded the application failed to accord with the local plan and the National Planning Policy Framework.

The inspector concluded: “The proposal would clearly result in wider benefits including the moderate contribution to the local and national aspirations to transition to a low carbon future, the significant benefit arising from the renewable energy creation and future energy mix, the modest weight to socio-economic benefits and the modest benefits to ecology and biodiversity.

“However, these fail to negate the harms identified to character and appearance, landscape and visual matters, the settings of designated heritage assets, archaeological remains, loss of ‘best and most versatile agricultural land’, highway safety, biodiversity and noise. The benefits in this case are clearly outweighed by the harms identified.”

The developer argued the inspector should have taken account of a rebuttal it submitted and said this had been late because it did not have a reasonable time allowed and a decision-maker has a discretion to admit further evidence.

But the Secretary of State said using section 62A gave an applicant a faster determination “but also a burden on applicants to find out what factors may weigh against their interests.

“If an applicant does not do so, or chooses not to do so effectively (for example as in this case, by not properly consulting with statutory consultees), that applicant takes the risk that rebuttal evidence outside the representation period will not be considered.”

HHJ Jarman said: “In my judgment, other inspectors may well have admitted the claimant’s rebuttal, but that is not the test.

“The question is whether the inspector’s refusal to do so in the particular circumstances of this case gave rise to procedural unfairness.”

He said a key factor was the requirement for the significance of assets to be identified.

“To approach the matter from the direction which the claimant does, by saying that the requirement to understand such significance is inapplicable because mitigation means that there is no harm, is, in my judgment, to approach the matter the wrong way round,” the judge said.

“There needs to be an understanding of significance in order to assess whether any mitigation appropriately addresses any harm. It is clear that the claimant did not undertake any evaluations to identify the significance of the historical assets revealed in the March 2022 geophysical survey, seemingly because it took the view that such a requirement was inapplicable where mitigation could avoid harm. In my judgment, the view was in error.”

He said the inspectorate dealt with the matter properly and “it has not been shown that there was the claimed procedural unfairness and the claim fails”.

Mark Smulian