As noted in our previous Law-Now which focussed on offshore wind (available here), EN-3 is the National Policy Statement which is specific to Nationally Significant Infrastructure Projects (NSIPs) for renewable energy generation. This update focuses particularly on solar. EN-3 applies to solar photovoltaic generating NSIPs which are over 50MW in England and over 350MW in Wales. As highlighted in our previous Law-Now, although the Secretary of State will not examine applications for NSIPs in Scotland, EN-3 may still be a relevant consideration for planning decisions in Scotland.
The Government has set an objective for solar capacity of 70GW by 2035, a significant increase to previous objectives. Seeing solar energy identified as a key part of the Government’s strategy for low-cost decarbonisation of the energy sector in the draft energy national policy statements provides welcome relief following uncertainty for the sector during 2022.
The most significant challenge to solar during 2022 was based on the impact on agricultural land and, in particular, best and most versatile (BMV) agricultural land. EN-3 provides that land type should not be a predominating factor in determining the suitability of the site location applicants should, where possible, utilise previously developed land, brownfield land, contaminated land and industrial land. Where the proposed use of any agricultural land has been shown to be necessary, poorer quality land should be preferred to higher quality land (avoiding the use of BMV agricultural land where possible).
The Government has recognised that solar projects may now have a longer operational period and have resisted calls to impose a maximum operational period on consents. EN-3 does note however that an upper limit of 40 years is typical, although again this is not a statutory maximum. Operational periods will be determined on a case-by-case basis. There is also recognition that associated infrastructure may include both energy storage and electrolysers associated with the production of low carbon hydrogen. A further point which has been clarified is that from the date of designation of the revised EN-3, the maximum combined capacity of the installed inverters, which is measured in alternating current (AC), should be used to determine solar site capacity.
The update to policy is notable in the context of a number of positive appeal decisions for smaller scale solar projects, and this follows on from the Government’s ongoing consultation (which runs until 25 April 2023) on changes to the existing permitted development rights for rooftop solar equipment. This will see the current capacity limit, of 1MW, removed.
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