927: Christmas competition, conservation covenants and a Cymru controversy

Because there are no other things which begin with ‘C’ in the news, today’s entry looks at conservation covenants, a Cymru solar park and ends with the annual Christmas competition.

Blackberry Lane Solar Park

First to the decision on a Welsh solar project which was a ‘development of national significance’. The Welsh Ministers refused to grant consent based on the impacts to the ‘Best and Most Versatile’ (BMV) agricultural land. In particular, the project site covered comprises 34.25 hectares of which 20.75 hectares of the application site is made up of grade 2 and grade 3a BMV agricultural land. Grade 1 is ‘excellent’, Grade 2 is very good and Grade 3a is ‘good’ – so its worth emphasising that this project did not impact the very best kind of BMV agricultural land.

Policy and guidance makes clear considerable weight should be given to protecting BMV land from development, and because of its special importance and grades 1, 2 and 3a agricultural land should only be developed if there is an overriding need for the development and either previously developed land or land in lower agricultural grades are unavailable.

There are two useful issues to consider for future DCO projects. Firstly, the promoter carried out an exercise whereby they identified sites within a 2km radius of a suitable grid connection – they only found 2! Secondly, the promoter sought to argue that the need for renewable energy to address climate change provided ample justification for granting consent for the project even though it involved impacting BMV agricultural land.

In relation to the first issue, a local authority raised concerns about the consideration of alternatives: they considered that once the site was established as having BMV agricultural land, further consideration of alternatives should have been undertaken. The Inspector did not agree:

‘…the Inspector is content the approach taken by the applicant to the definition of the search area and the site selection process was logical, structured and comprehensive and, in the case of the site selection process, had appropriate regard to the need to consider suitable alternative sites. The Inspector is satisfied the requirements of national policy in respect of BMV agricultural land, do not in themselves, prevent the development of such land.’

In relation to the second issue, the promoter sought to argue that the impact was of a temporary nature and the areas around the solar arrays would, following construction, be used for the grazing of sheep and for silage production which is an agricultural use. The Inspector disagreed:

‘…the Inspector is mindful the development of a solar park on the application site would mean the land would, effectively, be unavailable for the cultivation of food crops for a period of 40 years. The Inspector is of the view the use of the site for complementary agricultural uses, such as the grazing of livestock, does not compensate for the loss of BMV agricultural land even for a temporary period.’

The Welsh Ministers agreed with the Inspector and considered the impact on BMV agricultural land outweighed the contribution to the need for renewable energy (which, in this case, was the generation of energy from a renewable source which would serve up to 7,825 households on an annual basis over the lifetime of the scheme).

Contrast this with the only solar DCO so far consented, for Cleve Hill in Kent. This was assessed by the Applicant as 97% Grade 3b land, 2.5% Grade 3a and 0.5% Grade 2. This was disputed by some objectors but the ExA preferred the Applicant’s assessment.

Conservation covenants

Another useful matter to dwell on is ‘conservation covenants’ introduced by the Environment Act 2021 – these are legally binding agreements between a landowner and a designated ‘responsible body’ such as a conservation charity, public body or for-profit body for some conservation purposes. No doubt various bodies will be keen to become designated as responsible bodies.

The definition of ‘conservation’ is conservation of:

• the natural environment or natural resources of land;
• places of archaeological, architectural, artistic, cultural or historic interest; or
• the setting of land with a natural environment or natural resources or which is a place of archaeological, architectural, artistic, cultural or historic interest;

A conservation covenant may require a landowner to do, or not to do, something on land in England, or require the landowner to allow the responsible body to do something on such land. Alternatively, it may require the responsible body to do something on such land. The conservation covenant lasts indefinitely for freehold interests or for the term of a lease where relevant – unless the conservation covenant specifies a shorter period.

All of this and more is contained in Part 7 of the Environment Act 2021 – but it has not yet come in force and relies on regulations confirming their commencement. Importantly, conservation covenants will be a local land charge, and run with the land; potentially a benefit compared to other positive obligations which may require a specific deed to transfer responsibilities between landowners and purchasers. Conservation covenants could therefore be used to provide additional comfort that conservation commitments are long-lasting.

Could DCOs deem particular obligations as conservation covenants? Answers on a postcard.

Christmas competition

It’s the Planning Act blog (tenth annual) Christmas champagne competition!

Please consider these questions and try to find the single 10-letter NSIP-related word that I am looking for. The webpage may be of help.

1. Which author penned The Body In Question?
2. With what alternative name are blackthorns eaten or distilled?
3. A pioneer of rail, Chesterfield Station has a statue to whom?
4. Who played Oscar Blaketon in Heartbeat?
5. If you were to take up ergonomics what would you be doing?
6. Until Bury St Edmunds was adopted as its name, what was the Suffolk town called?
7. Under which part of the Anti-Social Behaviour Act 2003 do you think leylandii disputes might be resolved?
8. For whom was made a death mask of gold, burying it with his tomb?
9. What is the Charlie Brooker yearly review programme called?
10. Which is heavier, ton or tonne?

Email [email protected] with your answer by the end of 5 January 2022 and the first correct answer drawn from the virtual hat will win a bottle of champagne!