Skip to main content
CLOSE

Charities

Close

Corporate and Commercial

Close

Employment and Immigration

Close

Environmental, Social, and Corporate Governance

Close

Fraud and Investigations

Close

Individuals

Close

Litigation

Close

Planning, Infrastructure and Regeneration

Close

Public Law

Close

Real Estate

Close

Restructuring and Insolvency

Close

Energy

Close

Entrepreneurs

Close

Private Wealth

Close

Real Estate

Close

Tech and Innovation

Close

Transport and Infrastructure

Close
Home / News and Insights / Blogs / Planning Act 2008 / 942: Little Crow Solar Park granted development consent

Mustafa Latif-Aramesh
Partner & Parliamentary Agent

Today’s entry reports on the decision to grant development consent to the second ever solar DCO project.

It’s fitting that in the week the government published its Energy Security Strategy which intends to increase domestic production of renewable energy, it has granted consent to the Little Crow Solar Park. My colleague Richard will be elaborating on the strategy on the Net Zero Blog later this week – but one point to note is that one of our suggestions for reforming the DCO process (up front shorter examination periods) has seemingly been accepted though the devil will be in the detail.

Here are facts and figures for the project:

  • project: a solar generating station producing over 50MW, and a battery storage system of up to 90MW (see below);
  • promoter: INRG Solar (Little Crow) Ltd;
  • one inspector: Grahame Gould;
  • 16 relevant representations – low;
  • 4 written representations – very low;
  • 75 questions in the first round – very low;
  • 2 specific issue hearings, and 1 open floor hearing – very low; and
  • 370 documents on the Planning Inspectorate web page on the date of the decision – low.

Here are the interesting points I noted.

First, the application was decided under section 105 of the Planning Act 2008 (used where no National Policy Statement has effect) rather than section 104 (used where a National Policy Statement has effect). Solar developments are proposed to be brought within the scope of the National Policy Statement for Renewables (EN-3) – but the draft National Policy Statements are not designated just yet.

Just as an aside, by my count, this is the 13th DCO application to be decided under section 105, rather than section 104. There has only been one refusal for (part) of a project under section 105. It’d be tempting to conclude that projects decided under section 105 may have a higher chance of success compared to s104 given the larger number of refusals in the latter but in truth most of the s105 decisions are where a national policy statement was about to be designated. Note also that the battery storage element was ‘associated development’, rather than an NSIP in its own right (as it would have been before the Infrastructure Planning (Electricity Storage Facilities) Order 2020). We are also back to 100 DCOs having been granted, having temporarily reached that number last year before four DCOs were quashed.

Second, and relatedly, there is a patchwork of what is considered ‘important and relevant’ in relation to the different assets. Overall, the Overarching National Policy Statement for Energy (EN-1) is considered important and relevant. The National Policy Statement for Renewable Energy (EN-3) was not important and relevant for the solar element of the project, but the draft EN-3 was important and relevant. EN-1 was also considered to be relevant to the battery storage element; EN-5 (related to electricity networks) needed to be considered in relation to the cables connecting to the substation but ‘due to its incidental nature’ conformity ‘would not be determinative’. Local plans were also unsurprisingly considered important and relevant (and amusingly the decision letter records the local authority considered there to be ‘some’ conflict between their local plan and the National Planning Policy Framework).

Third, and as a consequence of the ExA concluding that EN-3 was not important and relevant, the ExA also concluded that the project did not ‘benefit from the Government’s demonstration of need for energy infrastructure’. The ExA nonetheless concluded that the project made a ‘modest contribution’ to providing electricity. The Secretary of State disagreed: they considered that substantial, not moderate, positive weight should be given in this context. (Perhaps unsurprising given the project is providing up to 60,000 homes with electricity, and displaces 31,000 metric tonnes of carbon dioxide per year).

Fourth, I was concerned when stalking the examination that the ExA was inclined to impose a maximum capacity output on the solar farm: the recommended draft DCO published as part of the examination had the ExA recommending a maximum capacity of 300MW for the generating station. This was resisted by the promoter who argued that:

‘The generating capacity of the proposed development is not considered to be an environmental parameter for the purposes of environmental impact assessment. The environmental assessment has been undertaken in consideration of parameters based primarily on the physical characteristics of the solar panels themselves as described in Chapter 4. Whilst an indicative capacity of 150-200MWp is given in the environmental statement, the Applicant has taken this approach so as to preserve that ability for it to take advantage of technological advances whilst remaining within the assessed envelope. For example, it may be possible in the future to install solar panels with a capacity over 200 MWp, whilst still remaining within the assessed parameters.’

Incidentally, this accords with draft EN-3 which sets out:

AC installed export capacity should not be seen as an appropriate tool to constrain the impacts of a solar farm. Other measurements, such as panel size, total area and percentage of ground cover should be used to set the maximum extent of development when determining the planning impacts of an application.

The ExA appears to drop this idea in the recommendation report – in fact, it rebukes the promoter for the converse! The ExA claims the promoter has a ‘lack of ambition’ to install solar panels with a more efficient rating, thereby leading to a ‘missed opportunity’ of generating more electricity and making more efficient use of the land. Indeed, the ExA recommended a minimum power rating for the solar panels to ensure maximum electricity generation.

The Secretary of State disagreed: no minimum rating for panels, or maximum output capacity, has been imposed for the solar panels, agreeing that the promoter was ‘merely seeking a degree of flexibility in its design of the proposed development which may obviate the need for changes to the Order at a later stage.’

On the question of maximum capacity for solar panels it appears the Secretary of State, ExA and promoter were seemingly therefore (eventually) all aligned. The resistance from the promoter to a maximum capacity was referenced by the Secretary of State as a reason for resisting the minimum rating for solar panels because it was ‘indicative of a desire to ensure the most efficient use of the land’. But then you reach the very end of the decision letter and you see the following change to the recommended Order:

Schedule 1 (Works 2A and 2B) to include the capacity of the battery storage system

Whilst a rather innocuous statement, the made Order includes a maximum capacity for the battery storage system of ‘up to 90MW’! This was not suggested in the ExA’s recommendation report and does not appear to have been a point of contention in the examination. Does the same argument – seemingly accepted by all – which applied to the solar panels not apply here?

Note that the approach adopted in the promoter’s environmental statement was to have a ‘candidate design’ – for the solar arrays, there was an indicative capacity of around 150MW, and the battery storage system of 90MW. The purpose of the candidate designs was to provide physical parameters of those assets, with an ‘example capacity that could be accommodated within the size of the panels and battery assessed at the time of the preparation of the Environmental Statement’. The promoter’s submissions invariably referred to ‘at least’ 90MW for the battery storage system and the recommendation report refers to the possibility of having ‘a capacity of more than 90MW’ (7.3.25).

Note the very need for the battery storage system was that the connection onto the grid has a MW-limit so the purpose of the system was to hold generated electricity. If it is accepted that the solar element could go beyond its ‘example capacity’, this must surely apply to the battery storage system as well.

I can’t find anything in the decision letter to explain this change – and I wonder if the promoter’s will seek to have this varied. I’m going to stick my neck out and say that if we are serious about increasing renewable energy production then there must be flexibility to cater for technological improvements over time: maximum capacity limitations for any kind of renewable or clean energy project should therefore only be imposed in wholly exceptional circumstances. Advice published on an unmade application last week seemingly continues to suggest maximum capacity limits. If there is a concern about the Rochdale Envelope, there are ways of means of dealing with this (see requirement 24 of the draft DCO for the Boston Alternative Energy Facility).

Fifth point to note is that 36.6 hectares of best and most versatile (BMV) agricultural land was impacted but this only weighed moderately against the granting of the Order. By contrast, 11 hectares of land impacted on the (granted) Cleve Hill Solar Park DCO was BMV land, and 27 hectares of the land impacted on the (refused) Blackberry Solar Farm DNS was BMV land. Perhaps this is an unfair comparison because the latter project supplied electricity for ‘only’ 7,000 homes.

Does Wales care more about BMV land? Incidentally, the Welsh Minister for Climate Change recently wrote to all Welsh planning officers seemingly scourging them for not understanding that ‘where BMV land is identified within a proposed solar PV array development, considerable weight should be given to protecting such land from development, because of its special importance, and unless other significant material considerations indicate otherwise it will be necessary to refuse permission’).

Sixth, the temporary diversion of a footpath – requiring people to walk 4.5km, rather than 1.5km – weighed against the making of an Order, but not enough to override the need or benefits associated with the project.

Related Articles

Our Offices

London
One Bartholomew Close
London
EC1A 7BL

Cambridge
50/60 Station Road
Cambridge
CB1 2JH

Reading
The Anchorage, 34 Bridge Street
Reading RG1 2LU

Southampton
4 Grosvenor Square
Southampton SO15 2BE

 

Reading
The Anchorage, 34 Bridge Street
Reading RG1 2LU

Southampton
4 Grosvenor Square
Southampton SO15 2BE

  • Lexcel
  • CYBER ESSENTIALS PLUS

© BDB Pitmans 2024. One Bartholomew Close, London EC1A 7BL - T +44 (0)345 222 9222

Our Services

Charities chevron
Corporate and Commercial chevron
Employment and Immigration chevron
Environmental, Social, and Corporate Governance chevron
Fraud and Investigations chevron
Individuals chevron
Litigation chevron
Planning, Infrastructure and Regeneration chevron
Public Law chevron
Real Estate chevron
Restructuring and Insolvency chevron

Sectors and Groups

Private Wealth chevron
Real Estate chevron
Transport and Infrastructure chevron