Legal Viewpoint: High Court provides some consenting clarity on solar generation

The High Court has provided welcome clarity on the definition of a “generating station” for the purposes of the Planning Act 2008 and the relationship between that consenting regime and the Town and Country Planning Act 1990.

In 2020, Durham County Council granted permission for a solar farm with a generating capacity of 49.9 megawatts at Hulam Farm, together with associated infrastructure and an electricity substation.

A year later, two companies connected with the developer of Hulam Farm applied for permission for a solar farm with a generating capacity of 49.9 megawatts at Sheraton Farm, together with permissions for associated cabling and infrastructure. The Sheraton farm site would be located in Durham, over a mile from the Hulam site, with some cabling and infrastructure in Hartlepool Borough Council’s area.

The electricity generated at each site was to be transmitted by 33kV cables to co-located substations before joining the national distribution network via a shared 66kV cable and an existing substation operated by Northern Powergrid.

All applications were validated but refused by the councils and appeals were lodged with the Secretary of State. Before the inquiry started, the inspector sought the parties’ submissions on whether the Sheraton appeals were an extension to the Hulam generating station by reason of being “functionally linked” and therefore whether development consent would be required under the 2008 Act.

The applicants argued the projects were not a nationally significant infrastructure project (NSIP) for which development consent was required. The councils disagreed.

The inspector adjourned the inquiry and the councils sought declarations from the High Court that (a) the development proposed by the appeal applications comprised an NSIP and (b) the Secretary of State did not have jurisdiction to determine the applications under the 1990 Act.

The judge identified three issues to determine. First, can and should the court determine whether development consent under the 2008 Act would be required for the projects taken together? Second, are the projects an NSIP? Third, if so, does the inspector have jurisdiction to consider the appeals?

The court found that there was “no constitutional or institutional reason” why it couldn’t determine whether development consent was required. Parliament had envisaged that this question might, in some circumstances, have to be determined by the courts, it held.

The court then concluded the projects did not, together, comprise an NSIP, and that the Inspector did have jurisdiction to determine the appeals.

It scrutinised the definition of “generating station” and, applying the decision in R (Redcar and Cleveland Borough Council) v Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 1847, distinguished between “generation” and “transmission”. The cables and substation are the means by which the electricity is transmitted and distributed – but are not part of a generating station.

This analysis is consistent with the 2008 Act which permits applications for development consent to include both “development for which development consent is required” and “associated development”. Government guidance cites overhead and underground cables and substations as examples of associated development connected with onshore generating stations.

The councils had argued that, even if the cables and substation are not part of the generating station, the addition of further capacity at Sheraton – functionally linked to that at Hulam – comprised an extension of the Hulam generating station and required consent under the 2008 Act.

The judge identified various features that “pointed strongly” against this conclusion. The projects were to be developed separately at different times, suggesting separate generating stations. They have separate distribution and connection agreements, are separately metered and could, if required, operate independently of each other (both contractually and physically). The common substation consists of two substations (one for each generating station) which, in any event, form part of the transmission and distribution – not generating – apparatus. The common 66kV cable is proposed for reasons of efficiency, not because the generating capacity of the two solar farms is interconnected.

These factors, taken together, made it clear that the proposed generating station at Sheraton is, in terms of the 2008 Act, a new generating station and not an extension of the Hulam farm. The criteria used by the Court – while not exhaustive – are welcome and will assist developers and decision-makers in dealing with generating station proposals.

R (Durham County Council & Another) v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 1394 (Admin)

David Wood is a senior associate at law firm Hogan Lovells International LLP

This article first appeared in Planning Magazine (21 July 2023)

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