Solar farms – Clarity for consenting

The High Court has handed down an important decision concerning the definition of a ‘generating station’ within the Planning Act 2008 (‘the 2008 Act’) and the relationship between the consenting regimes governed by the 2008 Act and the Town and Country Planning Act 1990 (‘the 1990 Act’).

The claim revolved around a planning application by (1) Lightsoure SPV 206 Limited and (2) Lightsource Development Services Limited (‘the Interested Parties’) at Sheraton Farm for a proposed solar farm with a generating capacity of 49.9MW together with planning applications for associated infrastructure. The solar farm was located in Durham with some of the associated cabling and infrastructure located in Hartlepool. The planning applications were refused by the Councils and appeals against refusal were lodged with the Planning Inspectorate.

Planning permission had previously been granted for another solar farm with a generating capacity of 49.9MW at Hulam Farm, Durham. Just prior to the start of the inquiry, the Planning Inspectorate sought submissions from all parties as to whether, by reason of what it termed “functional linkage”, the Sheraton Farm applications should be considered in combination with the Hulam Farm application to comprise a nationally significant infrastructure project (‘NSIP’) under the 2008 Act. The Councils both argued that they should.

At the start of the Inquiry the Councils continued to dispute whether the Inspector had jurisdiction to hear the appeals under the 1990 Act on the basis that the Sheraton Farm applications formed an extension to the Hulam Farm solar farm and needed to be consented by way of Development Consent Order. They argued this on the basis that the electricity generated at each site would be transmitted via 33kV underground cables to a co-located collector substations which would then connect via a 66kV underground cable to an existing substation on the national distribution network.

The Councils sought two declarations from the Court:

1. Declaration One: A declaration that the subject matter of the appeal applications comprised an NSIP within the meaning of the 2008 Act; and
2. Declaration Two: A declaration that the defendant did not have jurisdiction or is otherwise entitled to determine the appeal applications made under the 1990 Act.

The Court considered there to be three issues at stake:

1. Can and should the court determine whether development consent under the 2008 Act would be required for the projects taken together?
2. Are the projects an NSIP? The Court held that the answer to this question was no.
3. If the projects are an NSIP, does the Inspector have jurisdiction to consider the appeals? The Court held that the answer to this question was yes.

The Secretary of State argued that the Court should not answer the first question because it was a matter allocated by the 2008 Act to the Secretary of State in the first instance and he has not yet determined it. Agreeing with the Councils and the Interested Parties, the Court held that the answer to the first question was that it could. Parliament envisaged that the threshold question whether development consent is required might, in some circumstances, have to be determined by the Courts.

The Court went on to determine that the projects did not comprise an NSIP and that the Inspector did have jurisdiction to consider the appeals. The primary reason for the Court’s decision that the projects did not comprise an NSIP focused on the definition of ‘generating station’ and it followed the previous decision in R (Redcar and Cleveland Borough Council) v Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 1847. Applying Redcar, Chamberlain J held that the cables and substation which formed an integral part of the present applications were not an extension to the existing ‘generating station’ at Hulam but the means by which electricity would be transmitted and distributed. In doing so, the Court drew a clear distinction between generation and distribution.

Importantly, at paragraph 47 of his judgment, Chamberlain J identified several criteria which demonstrated that the generating stations were separate and that the Sheraton Farm applications were not an extension of the Hulam Farm solar farm. These criteria were:

1. the projects were developed separately at different times. This would not be determinative on its own, but it points in the direction of separate stations, other things being equal;
2. the projects have separate distribution and connection agreements and are separately metered;
3. the projects could operate independently of each other (both in contractual terms and in terms of physical infrastructure);
4. the common substation consisted (in reality) of two substations, one for each project;
5. the substation is part of the apparatus for transmitting and distributing electricity, not generating it. This was also reflected in the proposal that it would be adopted by the distribution network operator in due course; and
6. the reason for a proposed common cable transmitting electricity from the common substation to the electricity grid is that this arrangement is more efficient, not that the generating capacity of the two solar farms is interconnected.

Such criteria are extremely helpful to developers of energy infrastructure and local planning authorities in determining how projects should be consented. The list is not exhaustive and there may be other criteria to be considered on a case by case basis.

Based on the decision in Redcar, the Interested Parties were always of the view that the claim brought by the Councils was wrong in law. However, the decision is important and welcome in determining the role of the Court in disputes of this nature and in reiterating the distinction between a generating station on the one hand and infrastructure required for distribution or transmission on the other.

David Hardy (Partner at CMS) represented the Interested Parties during the planning appeals and inquiry. Michael Humphries KC of Francis Taylor Building, instructed by CMS, appeared on behalf of the Interested Parties in the High Court. The case citation is [2023] EWHC 1394 (Admin).