961: Solar in the UK planning system, and various other quarrels

Today’s entry looks at how solar is faring in the planning system, and various legal disagreements covering HRA, the disapplication of private agreements and the definition of capacity under the Planning Act 2008.

Make hay while the sun shines

Both Tory party leadership candidates, Liz Truss and Rishi Sunak, have gone on the record in opposing some forms of solar development. This may seem surprising given the British Energy Security Strategy (published by the government they formed part of), and given the ongoing energy costs crisis.

Liz Truss has a carefully crafted statement saying that she is ‘somebody who wants to see farmers producing food… not filling fields with paraphernalia like solar farms’. I say carefully crafted because a lot of solar development actually enables some further agricultural use, or indirectly supports farmers effectively as a form of insurance for a bad year. Rishi Sunak has expressed harsher sentiments, and for good measure has said he will ban any new onshore wind farms seemingly even in communities which are supportive of onshore wind.

I thought that now would be a good opportunity to take stock on how the planning system is dealing with solar developments.

For the conventional planning system, the record might be getting worse: between 2021 and 2022, twenty-three solar farms were refused across Great Britain. The record seems more problematic for solar when you consider the number of refusals in the last year is almost six times what it was for the 4 previous years combined, although that is clearly against the backdrop of an increased number of applications. As Chris Hewett of Solar Energy UK says, these figures need to be seen in the context of over 200 applications being successful. That said, the Guardian reports those projects ‘could have produced enough renewable energy to power an estimated 147,000 homes annually’ so whilst it should be seen in context, there is still nonetheless a energy output loss (even if temporary for those which may be successfully appealed).

For the non-conventional planning system, there have been two (made) solar DCO projects (Cleve Hill Solar Park, and Little Crow Solar Park), with two in the post-application phase (Sunnica Energy Farm, and Longfield Solar Farm). In Wales, there was a prominent refusal for the Blackberry Solar project which we covered in this blog.

On the specific contention of agricultural land vs. solar power generation, its worth noting that:

• 36.6 hectares of best and most versatile (BMV) agricultural land was impacted on the Little Crown Solar Park but this only weighed moderately against the granting of the Order;
• 11 hectares of land impacted on the (granted) Cleve Hill Solar Park DCO was BMV land, but this again didn’t prevent the Order being granted; and
• 27 hectares of the land impacted on the (refused) Blackberry Solar Farm DNS was BMV land.

Meanwhile, the Sunnica project has 31.4ha of BMV land which will house solar ‘paraphernalia’ (see 12.8.27 here) though much of that would / could return to agricultural use. Longfield has 150ha of BMV land being converted to a solar farm for the lifetime of the Scheme, but only 6ha of which is BMV being lost permanently (see 12.8.49 here).

Of course, we can’t look at these figures in isolation, you need to look at the power output, the wider benefits and disbenefits, but it’s interesting that most of these schemes are perfectly compatible with some form of agricultural use. More generally, it’s also worth noting that Cleve Hill ended up having a biodiversity net gain of 65%.

Do we really need more hurdles to stop this kind of development?

DCO vs MP

Is there an increasing trend for MPs to get involved in DCO applications (when they aren’t making decisions on them)? One project (the Medworth Energy from Waste Combined Heat and Power Facility) has recently faced two objections from MPs (both government ministers!).

Liz Truss recently wrote to the Planning Inspectorate to raise objections to the acceptance of the project. Health Secretary Stephen Barclay MP’s letter raises a legal objection to whether the project is an NSIP at all, arguing that its actually a 42MW plant, not a plant over 50MW. On his point, its worth noting that the Inspectorate has previously opined on the definition of capacity:

In the absence of any statutory definition or applicable case law, we consider that the term ‘capacity’ within section 15 of the PA 2008 refers to the ‘Total Installed Capacity’ which is defined in the Renewables Obligation Order 2009 (SI 2009 / 785) as follows: ‘Total Installed Capacity’ in relation to a generating station, means the maximum capacity at which the station could be operated for a sustained period without causing damage to it (assuming the source of power used by it to generate electricity was available to it without interruption).

Note the word ‘could’. Clearly Mr. Barclay didn’t read Row 238 of an archived spreadsheet of historic advice dated 2014 published under section 51 – tsk, tsk.

MP vs QC

Another interesting issue has arisen in relation to the interpretation of the Habitats Regulations. To cut a long story short, the Home Builders Federation have an opinion from Charles Banner QC which seemingly concludes that Habitats Regulations Assessments are not required for reserved matters applications. The Secretary of State, George Eustice MP, disagrees and has taken the unusual step of addressing this in Parliament. He said:

I am aware of views that the Habitats Regulations Assessment provisions do not apply to subsequent stages of outline approval, and while we know the following will be disappointing to the developers whose sites are affected, it is important to ensure there is clarity on how the assessment provisions should operate. The Habitats Regulations Assessment provisions apply to any consent, permission, or other authorisation, this may include post-permission approvals; reserved matters or discharges of condition.

QC vs QC

Meanwhile another interesting disagreement has arisen between Jason Coppel QC and James Maurici QC on the question of whether section 120 allows for a DCO to disapply or modify a private agreement in the context of the Hornsea 4 scheme. You can read the latter’s submissions here, and the former’s submissions here.

As we noted before, there are precedents for private agreements being modified or abrogated in other DCOs. There are also provisions in TWAOs which amend private agreements (although the changes on the Hornsea project are much more extensive). The recently re-determined Manston Airport DCO abrogates an entire s106 agreement, but that is less straightforwardly a ‘private’ agreement in the way the previous examples are. It’ll be interesting to see who the Secretary of State ends up siding with.