Court of Appeal finds for council in row planning consent for substation connecting to solar park

Test Valley Borough Council has defeated a planning challenge described in the Court of Appeal by Sir Keith Lindblom - Senior President of Tribunals - as “excessively technical” and with “a distinct air of unreality”.

The case was brought by the claimant/appellant over planning consent for a substation to connect a proposed solar park to the National Grid.

The appellant argued that Test Valley failed to have regard to an “obviously material” consideration by not taking into account the incompatibility of planning permission given in 2021 for a 132kv substation with a 2017 permission for one of 33kv at Woodington Farm.

Sir Keith said in his judgment the first issue at appeal was whether the incompatibility between the 2017 and 2021 permissions was a ‘mandatory material consideration’, to which the council was obliged to have regard when considering the latter application.

The second ground was if the High Court had incorrectly relied on an ‘ex post facto’ justification for the council's approach and misapplied the legal test for 'mandatory material considerations’. The appellant’s third ground asserted that the judge behaved unfairly.

Sir Keith said he faced a single main issue of whether the 2021 permission was incompatible with the 2017 permission and was this so “obviously material” to the 2021 permission as to require consideration?

It was argued for the appellant that the 2017 and 2021 developments could not both be completed as the latter would make the former physically impossible to build.

Rejecting this, Sir Keith said: “I think that the council's approach in determining the application was entirely lawful, and that the grant of the 2021 permission is valid in law.”

He said it was not arguable that either the incompatibility of planning permissions or the prospect of some future breach of planning control was a material consideration.

“Neither of those two things was identified in legislation, or in policy, as a matter the council must take into account,” he said.

“Nor is there any basis for submitting that the council was obliged in law to have regard either to the incompatibility of the two permissions in question or the possibility of Woodington Solar, or any subsequent landowner or developer of the site, carrying out development under either permission in breach of planning control as an ‘obviously material’ consideration. I cannot accept that it was irrational for the council not to take these matters into account.”

Sir Keith said the 2021 permission existed because the development proposal had changed but the solar park still had to be connected to the grid and “a different specification and design for the substation were necessary, and that different design required changes to be made to the layout of the surrounding parts of the solar park. None of this is contentious.”

He said the planning system allowed for the possibility of a number of applications being granted for different developments on the same site, and the officer's report concerned had provided a legally adequate explanation of the relationship between the 2017 and 2021 permissions. He also dismissed the argument about the judge having wrongly considered an ex post facto point.

Turning to the claim that the judge was unfair, Sir Keith said it was argued that he had invited the parties to make written submissions on whether the original permission scheme could be connected to the national grid or to other options and then reformulated the question in his judgment as whether it was “viable [to] complete the development under the 2017 permission … without the direct connection to the overhead lines”.

Sir Keith said: “The council has consistently maintained in these proceedings that the options available to Woodington Solar to overcome the incompatibility between the two planning permissions was a factor relevant to the main issue in the case.

“It did so in its detailed grounds of resistance, and in its skeleton argument in the court below.

“The point was not an invention of the judge. [The appellant’s] legal representatives were aware of it from an early stage.”

The judge had sought further information on the completion of the development authorised under the 2017 permission, and “no unfairness arose, nor any serious procedural … irregularity”., Sir Keith said.

He said there was no need for him to decide whether section 31(2A) of the Senior Courts Act 1981 since “the grounds of the claim lack any legal merit’.

Sir Keith added: “The claim in these proceedings is an excessively technical challenge. It has a distinct air of unreality. This, certainly, is one of those cases in which the court might well have been entitled to withhold relief.”

Lord Justice Coulson and Sir Launcelot Henderson both agreed with the judgment.

Mark Smulian