Mustafa Latif-Aramesh

The Examining Authority recommended approval, and the Secretary of State followed that recommendation. Here are a few interesting points from the decision letter. First, the Secretary of State makes a point of saying that there are ‘matters where the Secretary of State has further commentary and analysis to add beyond that set out in the ExA report.’ On landscape, there is an interesting gloss on the ExA’s report, with the Secretary of State noting that visual effects that last for 15 years are ‘not a negligible period of time; it is considered relatively short when compared to the 60-year lifecycle of the Proposed Development’.

On trial trenching, the promoter had carried out surveys that targeted fields where potential archaeological deposits had been identified through the geological survey and other nonintrusive investigations, which amounted to approximately 17% of the proposed array sites at a 2% sample, which equated to an overall sample of 0.35% of land. After a few objections, the promoter revised this so that there was a requirement for 1.09% of the Order limits. This issue trundled on with the Secretary of State suggesting revisions to a requirement which secured further trial-trenching (post-DCO).

It’s worth noting that the standards for an adequate amount of trial trenching are wildly inconsistent, and pose large, upfront costs to developers, which are difficult to finance without permission in place. The use of requirements is one route around this, but it also raises uncertainty at the delivery stage by potentially disproportionate requests. If the government was looking for things to try to standardise, this would certainly be an area to look at.

On agricultural land, this project involved ~48ha of the best and most versatile land (BMV), though almost 95% of the project was not on any BMV. The decision letter looks closely at the cumulative effects of this project alongside neighbouring projects (Tillbridge Solar (at pre-examination), Gate Burton Energy Park (consented), West Burton Solar (due for decision on 8 November), Heckington Fen Solar (due for decision on 27 September), Temple Oaks Renewable Energy Park (not yet applied for) and Mallard Pass (decided)). Ultimately, there were no unacceptable impacts to farming (partially because there would be a beneficial effect on the farm businesses).

However, on food security, both the ExA and Secretary of State say that the effect on food production ‘would not meet the requirements of the NPPF in this regard’ (the NPPF had been updated to refer to the availability of agricultural land used for food production in the context of development) but this was given ‘little negative weight’ because ‘whilst the use of arable farmland exceeds NPPF guidance, it is in line with the 2024 NPS.’ That’s a very clear indication about how much weight should be given to food security considerations in future decisions. By the way, the BNG delivered by this project is 76.8% in habitat units, 56.1% in hedgerow units, and 10% in river units.

On cumulative effects, the decision letter includes a plan (I think this hasn’t been done before) of all the neighbouring projects. Objections were raised that some of the assessments for the other projects were inconsistent with this project’s assessments. No dice, say the ExA and Secretary of State: individual projects have different receptors, and ‘there is no requirement for the findings to align’. Some local authorities put forward a specific wish list of different scenarios to be assessed (ie, with some, and all, projects coming forward). This too was rebuffed: EIA regulations do not require an applicant to assess all possible combinations of cumulative development but rather a reasonable worst-case scenario.

And finally, a few interesting points on the DCO itself.The ExA recommended (and the SoS agreed) with the removal of the deemed marine license on the basis that ‘the activities for which a license is sought are exempt activities under Article 35 of the Marine Licensing (Exempted Activities) Order 2011’ and the provisions were included on a precautionary basis (a tunnel under the tidal part of the River Trent). The decision letter notes, ‘the Crown Estate may find this change inconvenient since any commercial agreement reached with the Applicant based on the DML being included will now likely to be out of date’ – oopsy, sorry about that!

By the by, the conclusion that an exemption applies is arguable: the bored tunnel exemption may be overridden by the tunnel being used for the laying of the grid connection cable, leaving aside ‘breakout’ risk. The (historic) guidance notes that the ‘exempt cable’ does not include ‘cables used to export electricity generated by a renewable energy array to a substation on land’, so this goes beyond mere inconvenience to a potential further consent required in the implementation phase.

There was also a kerfuffle over the appropriate time period for discharging requirements. The promoter said 10 weeks, most local authorities said 16 weeks. The Secretary of State, in his desire to carve up the baby and split the difference, has decided it should be 13 weeks. This seems quite excessive and contrary to government policy to streamline planning, particularly for clean energy projects, but what do I know.

Heckington Fen Solar DCO

We have previously reported that the applicant for the nearby Heckington Fen solar farm DCO applied to extend the decision period from 9 August to 6 January 2025 to negotiate further on land for the cable. In a written statement on 2 September 2024 the government announced it was extended, but only until 27 September 2024.