1051: Three huge solar farms consented on one day
Angus Walker Partner
This week’s entry analyses the first DCO decisions of the new government, three large solar farms in different parts of the country all consented on 12 July 2024.
Although the previous Labour government introduced the DCO regime via the Planning Act 2008, the regime had not progressed enough to decide any DCOs by the 2010 election, and in any event, the original idea was that the Infrastructure Planning Commission would take decisions, so these are the first DCO decisions by Labour ministers.
All three applications were made as if there was no National Policy Statement in place, as solar was not specifically covered by the old NPSs, even though it is now covered by the updated EN-3. This is because, according to paragraph 1.6.2 of the new EN-1, the updated NPSs will only apply to applications accepted after they were designated on 17 January 2024. This also means that they are not yet classified as ‘critical national priority’, although as the applicant for the Gate Burton project notes at paragraph 4.20 of the decision letter, they would have been.
Sunnica
Here are the facts and figures.
- Project: a 500MW solar farm on the Suffolk / Cambridgeshire border north of Newmarket.
- Promoter: Sunnica Ltd, a joint venture between Tribus Energy and PS Renewables.
- Application made: 18 November 2021.
- Application decided: 12 July 2024 (32 months) – the decision date was put back four times.
- Two inspectors: Guy Rigby and Karin Taylor (there were originally three but Grahame Kean resigned a year ago).
- 1360 relevant representations (very high).
- 717 questions in the first round (high).
- Four Issue Specific Hearings, two Compulsory Acquisition Hearings, and two Open Floor Hearings (average).
- One local impact report, jointly from Suffolk, Cambridgeshire, West Suffolk and East Cambridgeshire.
- Six consultations by the Secretary of State during the decision stage: high.
- 2366 documents were on the Planning Inspectorate web page on the date of the decision: very high.
Unlike the other two applications, this one was recommended for refusal by the Examining Authority, mainly on visual impact grounds, particularly in relation to a registered park and garden (Chippenham) but also on biodiversity and ecology. More extensive notes from the Decision Letter than the other two as a result:
The project is divided into Sunnica East and Sunnica West, but confusingly, the former is in West Suffolk and the latter in East Cambridgeshire (and they look more north / south to me). I had trouble finding where references to field numbers used by objectors and mentioned in the decision letter were, but they seem to be in these parameter plans here and here.
The local authorities objected to the application overall and also suggested that certain areas be removed as an alternative, mainly on visual impact grounds (amounting to about 65% of the project) and ecology in the case of three fields. But the Secretary of State (SoS) rejected this, noting that the applicant did remove areas with the most significant adverse impacts during site selection. The SoS says, as echoed in this blog many times before:
‘there is no general policy requirement to consider alternatives or to establish that the development applied for is the best option.’
The battery storage element will be subject to hazardous substance consent from the Health and Safety Executive later, and a Battery Fire Safety Management Plan must be agreed upon with the county councils before the battery storage can be built, which was considered adequate protection.
Stone curlew impacts were an area of contention, but the SoS concluded that the applicant did not need to guarantee that alternative sites being created would be used by them. The SoS noted, but attached no weight to, a contribution by the applicant to the RSPB for stone curlew research.
The SoS again disagreed with the Examining Authority (ExA) on cultural heritage effects, particularly the effects on the registered park and garden and a 1949 aircraft crash site.
On Biodiversity Net Gain the ExA discounted the gain because it was not yet a statutory requirement – I definitely side with the SoS on that one, it is still a benefit – in fact, arguably more of a benefit because the first 10% is not yet mandatory – of the project to provide BNG.
On visual impact, the ExA thought this project maximised impacts by being neither sufficiently concentrated in one place nor sufficiently spread out (but the SoS disagreed with this – see paragraph 4.156).
On job creation, and particularly the impacts on Newmarket’s horse racing industry, the host authorities disagreed with the Applicant but did not provide enough of an alternative assessment. The SoS sided with the Applicant on various submitted reports about the effects of solar farms on horses.
There was a disagreement about the classification of best and most versatile (BMV) agricultural land centred around ‘droughtiness’ or availability of irrigation, which would increase the classification by one level compared to the Applicant’s assessment, which only had 3.8% BMV.
The ExA recommended that, even if the application was granted, compulsory acquisition powers over some parcels should not be granted, but the SoS disagreed and granted all of them.
The ExA was also not convinced there was adequate funding in place for compulsory acquisition, and again, the SoS disagreed, saying that the article in the DCO requiring guarantees that was similar to a few other DCOs was adequate.
For future ExAs to note, the SoS occasionally criticises this ExA for not considering things (see e.g. paragraphs 4.75, 4.92, 4.156 and 4.202).
Gate Burton
Here are the facts and figures.
- Project: a 531MW solar farm on the Lincolnshire / Nottinghamshire border (the solar farm itself being wholly in Lincolnshire), the largest I’ve seen.
- Promoter: Low Carbon Investment Management Ltd
- Application made: 27 January 2023
- Application decided: 12 July 2024 (17 1/2 months) – the election only caused an 8-day delay.
- One inspector: Kenneth Stone
- 1140 relevant representations (high).
- 235 questions in the first round (above average).
- Three Issue Specific Hearings, two Compulsory Acquisition Hearings, and two Open Floor Hearings (average).
- Four local impact reports, from Bassetlaw, Nottinghamshire, West Lindsey and Lincolnshire
- One consultation by the Secretary of State during the decision stage: low.
- 2366 documents were on the Planning Inspectorate web page on the date of the decision: very high.
Notes from the decision letter:
The battery storage was agreed to be associated development, despite some dispute.
The SoS decided it was no longer appropriate to compare a development such as this to an unabated gas-fired power station since such a thing would have to be carbon capture-ready, but noted that the emissions from the development would be net negative.
I hadn’t seen an increase in patients per GP as a result of the construction workforce being cited as a factor before; in this case, it was only two. I must say that wasn’t an environmental impact of a solar farm that I had thought of. The SoS did his own calculations of GP ratios that give higher results than the Applicant’s, but concludes that a 1.75% increase is of limited negative weight rather than the moderate weight the ExA gave it.
Some cumulative effects were calculated for the nearby West Burton and Cottam solar farms, and it has been confirmed that the developers are working together to minimise cumulative effects.
Landscape and visual effects were moderately negative, and agricultural land loss was also moderately negative. The offer of having sheep graze under the panels was not given weight because it was not secured, although note that paragraph 161 of one of the East Anglia Windfarm judgments says that a benefit can be given weight even if it is not secured.
The SoS ‘strongly encouraged’ the applicant to monitor the effects of electromagnetic fields on migratory fish but did not go as far as making this a requirement (lesson: read the decision letter for such things as they may not be in the DCO).
Mallard Pass
Facts and figures:
- Project: a 350MW solar farm on the Rutland / Lincolnshire border
- Promoter: Windel Energy and Recurrent Energy
- Application made: 24 November 2022
- Application decided: 12 July 2024 (20 1/2 months)
- Two inspectors: David Cliff and Mark James
- 1223 relevant representations (high).
- 333 questions in the first round (above average).
- Five Issue Specific Hearings, two Compulsory Acquisition Hearings, and two Open Floor Hearings (above average).
- Three local impact reports, from Lincolnshire, South Kesteven and Rutland
- Two consultations by the Secretary of State during the decision stage: average.
- 1193 documents were on the Planning Inspectorate web page on the date of the decision: high.
Notes from the Decision Letter:
The Applicant in this case initially did not seek permission for a limited number of years for the development but then proposed a 60-year limit during the examination. The ExA considered that the panels would need replacing during 60 years and that this should be done gradually to reduce road impacts, rather than all at once.
Interestingly the Mallard Pass Action Group complained that there wasn’t a battery storage element of the project, when on the other ones there were concerns about its safety.
Obtaining a great crested newt licence has been added as an obligation (via the Construction Environmental Management Plan) because it hadn’t been secured by the decision stage, which may be a tightening of that area.
Landscape and visual impacts were moderately negative. Agricultural land considerations extended to site selection, size of the development and alternatives. The site uses a higher proportion of Grade 3a (34.1% of the solar farm) than the other projects, and some Grade 2 as well (6.6%); there is unusually a table showing this in the decision letter. Another table lists nearby solar farms and their occupation of agricultural land by grade, where known. All the solar farms together would result in a loss of 0.5% of best and most versatile land in Lincolnshire and Rutland. This project would be more spread out and need more land if less BMV land was used. Again sheep grazing under the panels is not secured so not given weight as a benefit. The SoS concludes that this one’s siting is justified and ascribed this issue moderate negative weight.
On forced labour in the supply chain, a particular concern of local MP Alicia Kearns, an Employment, Skills and Supply Chain Plan is required and includes a commitment for suppliers to upload a modern slavery and human trafficking statement annually to the Home Office Register, and a list of suppliers would be made available to local planning authorities prior to commencement.
The Applicant resisted supplying additional justification for screening out in-combination effects on habitats, and Natural England eventually agreed that there would be no such effects. The SoS agreed but told the Applicant off for its approach.
The SoS allowed two options for crossing the East Coast Main Line to be included in the DCO, although I don’t actually see the drafting mentioned in it.
In the DCO, references to ‘temporary stopping up’ have been changed to ‘temporary closure’ as is the current style. In all three DCOs, the removal of human remains article has been removed because there aren’t known to be any. The transfer of the benefit of the DCO to a subsidiary of the applicant without the consent of the SoS was removed.
Summary
Documents:
Areas:
- Sunnica – 981 hectares
- Gate Burton – 652 hectares
- Mallard Pass – 852 hectares
Agricultural land grades:
- Sunnica – 3.8% grade 3a
- Gate Burton – 11% grade 3a
- Mallard Pass – 6% grade 2 and 34.1% grade 3a
BNG:
- Sunnica – 37% area, 28% hedgerow and 11% watercourse
- Gate Burton – 71% area, 37% hedgerow and 14% watercourse
- Mallard Pass – 72% area, 41% hedgerow and 0% watercourse (the original DCO committed to 10% across the metrics but this was removed)
Pages of decision letter:
- Sunnica 76
- Gate Burton 52
- Mallard Pass 39
Rampion 2
And finally, it’s not a solar farm but just to report that the ExA is cross with Natural England on this windfarm extension nearing the end of its examination and has said it will not accept submissions from it on the date it proposes because that is only three days before the end of the examination rather than the previous deadline that the ExA requested. It has allowed it to be nine days late, though, as a compromise.
The Planning and Infrastructure Bill mentioned in the King’s Speech will be covered in next week’s blog.
Even more finally, the North Lincolnshire Green Energy Park DCO decision has been delayed for a fourth time, from 18 July to 22 October, ‘to allow for Defra to consider the evidence gathered by its review into the role of waste incineration capacity in the management of residual wastes in England’. The reinstatement of timely decision-making is having to wait.
