An update on the consenting of large-scale solar and BESS projects

The weeks since the general election on 4 July have brought a flurry of approvals for large-scale solar and Battery Energy Storage System (BESS) projects. So how could the consenting landscape continue to evolve following the change of government?

Nationally Significant Infrastructure Projects

On 12 July the new Secretary of State for Energy, Security and Net Zero granted development consent for three nationally significant solar and BESS projects: Sunnica, Mallard Pass and Gate Burton. These were the first solar DCO applications to be determined since the grant of the Longfield DCO in June 2023, and take the total number of solar DCOs granted so far to six.

Sunnica – what weight should be given to the impact on best and most versatile agricultural land?

In June 2023 the Examining Authority recommended that the Secretary of State refuse the application on the basis that the adverse impacts of the scheme (particularly landscape and visual and heritage impacts) would “clearly outweigh” its benefits, despite the recognised urgent need for new solar capacity. The decision was repeatedly delayed from September 2023 but, within a week of the election result, the Secretary of State had granted consent for the scheme, disagreeing with the Examining Authority and deciding that the benefits of the scheme would outweigh its adverse impacts. One area for disagreement was in relation to the weight to be given to the impact of the scheme on best and most versatile (BMV) agricultural land. The Examining Authority thought that this should be given moderate negative weight, whereas the Secretary of State decided that the temporary loss of 37.3ha of BMV land should only receive slight negative weight. This reflects the recent policy position in National Policy Statement EN-3 that land type should not be a predominating factor in determining the suitability of sites for solar development as well as a recent statement from the Secretary of State that the biggest threat to food security and rural communities is not solar panels but the climate crisis.

Ultimately, it is for the Secretary of State to decide how much weight to give to competing considerations. The courts have consistently expressed reluctance to overrule decision makers when it comes to matters of how much weight should be given to particular considerations.

Mallard Pass – 30, 40 or 60 years?

The applicant proposed a 60-year time limit for the operational phase. Various parties considered that a shorter time limit of 30 or 40 years should be imposed, but the Examining Authority concluded that there was no overriding reason to limit the operational period to less than 60 years, it being unlikely that there would be any material difference in effects between a 40-year period and a 60-year period. The Secretary of State noted the concerns raised about a 60-year time limit but agreed with the Examining Authority that there was no reason to limit the operational period to less than 60 years. Accordingly, Requirement 18 of the DCO (decommissioning and restoration) requires decommissioning works to commence within 60 years.

Gate Burton – heritage impacts

The heritage impacts from the Gate Burton scheme were considered. Ten non-designated heritage assets would experience a moderate (and therefore significant) adverse effect. The Examining Authority’s view was that this would be mitigated through archaeological excavation and recording and that the identified harm would be less than substantial. The Secretary of State disagreed with this, stating that the removal and recording of archaeological remains does not mitigate harm to archaeological features. Such steps are required, but do not amount to mitigation of harm. Accordingly, the Secretary of State found that the non-designated heritage assets would experience a residual moderate adverse (significant) effect. In accordance with policy requirements, the harm to heritage assets was given great weight, but ultimately this was not sufficient to defeat the application, the overall harm to heritage assets being assessed as less than substantial and outweighed by the wider public benefits of the scheme.

Shared grid connection corridor ‘welcomed’ by the Secretary of State

Another interesting aspect of the Gate Burton decision is the references to the shared grid connection corridor between the Gate Burton, West Burton, Cottam and Tillbridge schemes, which was “welcomed” by the Secretary of State. Given the number of schemes coming through in some parts of the country, the idea of a shared grid corridor is likely to be of significant interest to promoters due to the likely benefits in terms of reduced environmental impacts, reduced land take and potentially a strengthened case for the land and rights needed for the grid corridor.    

What does the future hold?

All three schemes faced strong opposition on a variety of grounds, including in some cases from their host local authorities. The decisions are undoubtedly welcome news for promoters of large-scale solar and BESS projects. They represent a clear statement of intent from the new government and a strong signal that proposals that accord with the National Policy Statements will receive consent. It is interesting to note that the current energy National Policy Statements, which provide strong policy support for solar and BESS projects, were published by the previous government in January 2024. However, what appeared to be lacking was the conviction to implement that policy, if necessary by making difficult decisions. Judicial review challenges to DCO decisions have become increasingly common and the sector will now be watching to see which, if any, of these decisions is subject to a judicial review challenge, and if so on what grounds. The deadline for challenges to these decisions expires on 23 August.

Town and Country Planning Projects and Proposed Changes to the Consenting Regime

For Town and Country Planning Act (TCPA) schemes, the decision-making landscape continues to be mixed.

Will consent be given in the green belt?

In Labour’s first called-in solar decision, permission was granted for a 23MW solar / 57MW storage project in the Warwickshire green belt. The project had originally been approved by Warwickshire District Council in July 2023 but it was subsequently called-in by the then Secretary of State due to objections. The Secretary of State agreed with the inspector that the proposal represented inappropriate development in the green belt that would harm its openness. Very special circumstances had to exist for the proposal to be authorised. Very special circumstances were found to exist due to the benefits of the scheme, including its contribution to renewable energy and low carbon targets and substantial biodiversity net gain of c. 136%. The harm to the green belt and other adverse impacts of the scheme were ‘clearly outweighed’ by the benefits of the scheme and permission was granted on that basis.

However, on 8 July the Secretary of State refused permission on appeal for a 49.9MW project in the Nottinghamshire green belt. The Inspector found that, although quite finely balanced, the harm to the green belt and landscape and visual impacts would not be clearly outweighed by the benefits of the project. Very special circumstances did not therefore exist and permission was refused. Although recognising that each application must be decided on its merits, and noting the differences in scale between these projects, this apparent inconsistency in decision-making on projects located in the green belt is reflective of the bigger picture when it comes to the application of national planning policy. None of the solar DCOs granted to date have authorised a project in the green belt and it would be interesting to see how any such DCO application would be decided.

What will happen if the threshold for solar NSIPs increases?

The government recently published a proposal to increase the threshold for solar Nationally Significant Infrastructure Projects (NSIPs) from 50MW to 150MW. This has met with mixed reactions from the sector. A common view is that the TCPA process is quicker and less expensive than the NSIP process, but in our experience that is not always the case. If an application is refused by the LPA, the subsequent appeal process can be lengthy. The latest statistics from the Planning Inspectorate indicate that, of all inquiry cases in the last 12 months, the average time from appeal validation to decision is almost 10 months. The outcome of an application also tends to be less certain if it is being considered by a local planning committee than an examining authority appointed by the Secretary of State. The comparative certainty of the NSIP process may be attractive to promoters, as may be the availability of compulsory acquisition powers to acquire the land and rights needed for the scheme. Accordingly, we may see an increase in promoters seeking to use the s.35 direction route to bring projects of less than 150MW into the NSIP process if this change to the threshold is made. This may be particularly true of projects that are 100MW or more. The consultation on the proposed changes closes on 24 September 2024.

TLT has over 25 years’ experience in the future energy sector and advise across the project life cycle from planning and initial development to construction and commercial operation, in all UK jurisdictions. If you would like to discuss further, please get in touch.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.