North east solar farm projects do not need DCOs, judge rules
The High Court has resolved a complex dispute over whether solar farm projects in Durham and Hartlepool need development consent as nationally significant infrastructure projects (NSIPs).
Mr Justice Chamberlain heard the case brought by Durham County Council and Hartlepool Borough Council against the Secretary of State for Levelling Up, Housing and Communities.
Solar farm developers Lightsource SPV 206 and Lightsource Development Services were interested parties.
The court was told that in June 2020, Durham granted planning permission to a Lightsource company for a solar farm with a generating capacity of 49.9 MW at Hulam Farm.
Five further applications were made the next year by two further special purpose companies related to Lightsource.
These covered a proposed solar farm with a generating capacity of 49.9MW at Sheraton Farm, construction of underground electricity cables and associated infrastructure and a connection between the Sheraton solar farm and a proposed substation intended to link Hulam into Sheraton.
Lightsource also applied for similar cables and associated infrastructure at Hulam.
The applications were made to each council according to their boundaries but all were refused. Lightsource appealed and an inquiry was held by an inspector.
She adjourned the inquiry on the grounds that she could not decide whether the applications amounted to an NSIP - which would need development consent under the Planning Act 2008 - as this was this was a matter for the courts and not within her power.
Durham and Hartlepool then sought a declaration that the applications comprised an NSIP under the Planning Act 2008.
They also asked for a declaration that the secretary of state does not have jurisdiction or is otherwise entitled to determine the appeal applications made under the Town and Country Planning Act 1990.
Chamberlain J said in his judgment that he had to decide if the court could determine whether development consent under the Planning Act 2008 would be required for the projects taken together and whether the projects constituted NSIPs and if so whether the inspector had jurisdiction to consider the appeals.
He said s. 171 of the Planning Act 2008 showed Parliament envisaged that whether development consent is required might have to be determined by a court.
“If, as I have concluded, that issue can in principle be determined by the court, there are powerful reasons why it should be,” he said.
Chamberlain J explained: “The alternatives are, in my view, unpalatable. [The] suggestion that Lightsource could make an application to the secretary of state for development consent is impractical and would not achieve the certainty required.
“It is impractical because applications for development consent are 'front loaded' in the sense that they involve a very large amount of preparatory work, including consulting affected parties. Why would Parliament have intended that a developer should be required to consult in relation to an application which, in its view, does not require development consent at all?”
The judge questioned whether its would be possible to carry out a consultation where the developer considers a project is not NSIP “without confusing or misleading those being consulted?”
If the developer chose not to apply for development consent, “it would be open to the local planning authority to prosecute under s. 160 once the development had started [but] why should a developer have to incur the expense of beginning the development when it is clear that there is a dispute between it and the local planning authority about whether development consent is required?
“And why should a developer have to run the risk of a criminal conviction in order to obtain certainty on a point which both it and the local planning authority wish to have resolved?”
Chamberlain J said: “I can see no constitutional or institutional reason why it would be wrong for that judgment to be made by me in circumstances where both the local planning authority and the developer invite me to resolve the issue.”
Turning to whether development consent was required, he said the projects at Hulam and Sheraton were developed separately at different times and had separate distribution and connection agreements and were separately metered and could operate independently of each other
“These factors, taken together, make it clear that the proposed generating capacity at Sheraton is, in terms of the Planning Act 2008, a new generating station and not an extension of the permitted solar farm at Hulam,” Chamberlain J said.
“I would therefore refuse to grant [the] declarations not because the grant of declarations would be in principle inappropriate, but because the substance of the declarations is wrong in law.
He concluded the project did not require development consent and even if it did, that would not deprive the local planning authority of jurisdiction to grant planning permission, nor deprive the Secretary of State of jurisdiction to entertain the appeals.
