Council varying of planning permission for solar farm to remove electricity substation unlawful, High Court rules
A High Court judge has found a planning permission granted by Test Valley Borough Council that varied a previous planning permission for a solar farm by removing an electricity substation from the plans to be unlawful.
In Fiske, R (On the Application Of) v Test Valley Borough Council [2023] EWHC 2221 (Admin), Mr Justice Morris quashed the decision after concluding it was ultra vires Town and Country Planning Act 1990.
The borough council granted planning permission to the solar farm to Woodington Solar Limited in April 2022 pursuant to section 73 of the Town and Country Planning Act 1990, varying the conditions in respect of an earlier planning permission.
The earlier planning permission, granted in 2017, was for the development of a solar farm, including ground-mounted solar panels and a 33kV electricity substation, on agricultural land on a farm in East Wellow, Hampshire.
The 2022 varied permission removed the 33kV substation.
The claimants, who live near to the proposed development, sought a quashing order for the 2022 permission, arguing that it was unlawful on the following grounds:
- The 2022 Permission was ultra vires section 73 TCPA since, by removing the substation permitted by the Original Permission, the Defendant granted a permission that conflicts with the operative wording of the Original Permission and/or that fundamentally alters the development permitted under the Original Permission.
- The Defendant failed to have regard to a mandatory material consideration, namely the fact that in granting the 2022 Permission it would be granting a permission which altered the Original Permission by removal of the substation.
The judicial review succeeded on ground one alone, with the judge finding that the 2022 permission was ultra vires section 73 of the 1990 Act, as there was a conflict between what was permitted in the original permission and a condition in the 2022 permission that the judge found prohibited the carrying out of the development with a 33kV substation.
The judge said that the 33kV substation was a "central part of the development".
"In my judgment, removing that central element (as the 2022 Permission does) amounts to a fundamental alteration of that development," he noted.
"A solar farm with a 33kV substation is fundamentally different from a solar farm without a 33kV substation. Moreover, I accept the submission that, on the facts, the 33kV substation remains an important part of the Original Permission."
He added that it remains a possibility that the original permission “could be fully implemented on its own, and if so, the need for a 33kV substation remains.
“I therefore further conclude that the removal of the 33kV substation and the prohibition upon its construction, in the 2022 Permission, constitutes a fundamental alteration of the development permitted by the Original Permission."
“For these reasons ground 1 succeeds,” Morris J said. He consequently quashed the planning permission.
Adam Carey
