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This week’s entry reports on a High Court case about two solar farms – or are they one? It also covers other news such as the end of the examination into the A66 road upgrade.

One farm or two?

The High Court issued a judgment this morning on whether two 49.9MW solar farms a mile apart, one in the area of Hartlepool Council and the other in the area of Durham County Council, were actually a single solar farm that should have been the subject of an application under the Planning Act 2008.

The judgment can be found here. The two farms had separate connections to different areas of the same substation. The questions before the judge were: could he decide the case by the local authorities given that the secretary of state decides whether something is an NSIP or not? Were the solar farms, cables, and substation all one big generating station? Even if not, was the later solar farm an extension of the earlier one?

The answers were yes, no, and no, respectively. It would be a waste of time for the developer (LightsourceBP in this case) to make an application for a DCO, especially given its front-loaded nature, just to find out if it needed a DCO.

The judge concluded that the cables and the substation are not part of the generating station. They play no role in generation; they merely help carry the generated electricity elsewhere. The two solar farms could be operated independently of each other and were subject to separate distribution and connection agreements, so it is clear that the second solar farm to be applied for is not an extension of the first one.

The commentary on the final, albeit redundant, ground as to whether an inspector has jurisdiction to consider the appealed planning refusals is interesting and, in my view, wrong. Section 33 of the Planning Act 2008 says that where something is an NSIP, planning permission is not required to be obtained or given. Although that means you are not prevented from applying for planning permission, it would again be a waste of time for everyone if you did so since you would have to apply for a DCO as well. But in a final flourish (at paragraph 54) the judge says that someone could apply for planning permission for something that needed a DCO and implement it as long as the generating capacity did not exceed the NSIP threshold of 50MW. I’m not sure that is right, since section 31 says development consent is required to the extent the development is or forms part of a nationally significant infrastructure project.

Other news

On the subject of solar farms, even if the above two aren’t, there are a lot of nationally significant solar projects. Two have been decided: Cleve Hill (Kent, 350MW), Little Crow (Lincolnshire, 150MW). One is in its decision stage: Longfield (Essex, 500MW), one in its recommendation stage: Sunnica (Suffolk/Cambridgeshire, 500MW), one in examination: Mallard Pass: (Rutland, 350MW), four are in pre-examination: Cottam (Lincolnshire/Nottinghamshire, 600MW), Gate Burton: (Lincolnshire, 500MW), Heckington Fen (Lincolnshire, 500MW) and West Burton (Lincolnshire/Nottinghamshire, 480MW), five have conducted statutory consultation: Oaklands (Derbyshire, 138MW), Stonestreet (Kent, 100MW), East Yorkshire (East Yorkshire, 400MW), Byers Gill (Durham, 180MW) and Tillbridge (Lincolnshire, 600MW) and five have sought a scoping opinion: Temple Oaks (Lincolnshire, 240MW), Tween Bridge (Lincolnshire/South Yorkshire, 600MW), Beacon Fen (Lincolnshire, 600MW), Frodsham (Cheshire, 150MW) and Fenwick (237MW, South Yorkshire).

That’s a whopping 6.7 gigawatts of generation, if it all gets built, with quite a concentration in Lincolnshire, and those are only the ones larger than 50MW. Some of the figures are estimates as they seem to be quite coy about their capacity on the Planning Inspectorate website but more forthcoming on their own project websites. It is interesting that the smallest is 100MW and most are much larger; if you are going to apply for a DCO it is better to go big.

The A66 examination finished on 29 May 2023, and took exactly six months. This was a ‘Project Speed’ test case, so one might have thought it would have had a shorter examination, but then again it was a pretty big project—a four-inspector job. It was divided into eight sections that looked as though it was going to be 11 sections: Schemes 0102, 03, 0405, 06, 07, 08, 09 and 11.

The final version of the DCO submitted by the applicant still has no requirements in it like the application version. It does however have two articles (53 and 54) that look like requirements, and the Environmental Management Plan and its schedules contain things that also look like requirements. Nevertheless rather than having requirements and a set of control documents, there is just the latter, so the controls are in one place (or at least one sort of document). There is slightly more flexibility in finalising them since a second iteration of the EMP is to be produced, which is the ‘real’ one, and it can vary a bit from the application version (but not so as to give rise to materially new or different environmental impacts, of course).

It has a very long limits of deviation article (four pages) and a special article about the relocation of Brough (‘bruff’) Hill Fair, but otherwise doesn’t look radically different from previous DCOs, apart from the lack of requirements.

Trivia note triggered by reading the DCO: the Keadby 3 DCO is the first one to refer to ‘His Majesty’ instead of ‘Her Majesty’ even though His Majesty was on the throne for a few earlier ones.

Finally, the practice of having a two-part Preliminary Meeting introduced in response to the pandemic appeared to have been abandoned, with the last such being for the Sunnica solar farm, with a huge two-month gap between the two parts in the summer of 2022. However, the Lower Thames Crossing had its first part on 6 June 2023 and might have another on 20 June 2023, to be decided.

It’s the 1000th blog post next week—quite a milestone. The quiz night to celebrate is now fully booked.

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