Infrastructure Planning Blog

Today's entry looks at the Stonestreet Solar DCO approval, the pushback on fast-tracking data centres, a review of whether human rights stop infrastructure and the latest in carbon budget planning.

Stonestreet Solar

At the end of last week, the Secretary of State granted development consent for the Stonestreet Solar DCO. The decision letter is a short 19 pages, but here are a few points to note.

First, as is becoming common, the Secretary of State imposed a Biodiversity Net Gain (BNG) requirement which secures a net gain of at least 100% in area-based habitat units (high, but well below the applicant’s own predicted figure of 186%), at least 10% in hedgerow units, and at least 10% in watercourse units. The drafting of the Requirement specifically secures this by reference to “the biodiversity metric published by the Department for Environment, Food & Rural Affairs on 12 February 2024” or another one approved. It's welcome that future changes to the metric, even if substantial, will not cause uncertainty. This approach is to be contrasted by the Byers Gill DCO which secures the BNG on that scheme by reference to a potentially moving target of “a biodiversity metric approved by the local planning authority in consultation with the relevant statutory nature conservation body”.

Second, there’s an interesting question of consistency in planning decisions. CPRE noted a planning appeal for a close-by solar farm was not granted permission on the basis that it would cause harm to the significance of the Grade I Church of St Martin and Grade II* Court Lodge and the Aldington Conservation Area, and that taking into account the importance of the heritage assets, there was not a ‘clear and convincing justification’ per NPPF para 213 for the harm to the designated assets. That was similar to the impact reported here. The Secretary of State considered that the heritage impacts here carried negative weight in the overall planning balance, but not enough to refuse this application. It’s worth noting that EN-1 uses the same language of harm to heritage assets requiring “clear and convincing” justification.

Third, the local authority – which has some of its land subject to compulsory acquisition - passed a motion on rescinding the Climate Emergency it previously declared, and stated that “its position now in respect of landowner responsibility matters is to cease any further discussion on any voluntary agreements on land disposals” following the local elections. The Secretary of State, matter of factly, granted the compulsory acquisition powers. By the by, the Secretary of State clarified that it ascribed “substantial” positive weight, rather than “very great” positive weight to reflect the NPS, but this was said to be “different in terminology only and the weighting ascribed is the same in every other sense”.

The data centre secondary legislation gets the committee treatment

The Secondary Legislation Committee has some strong words to say about the simple Statutory Instrument which allows for data centres to be directed into the Nationally Significant Infrastructure Project regime, though questions can be raised around the basis of some of the comments. They set out that “it would have been helpful therefore for the NPS to have been published alongside this instrument in draft form. We regret that without this information, it is not possible for Parliament and the public to understand fully how applications for new data centres will be assessed under the NSIP regime”. There is, of course, no requirement for NPS to be laid at the same time as secondary legislation, and it’s also worth stating that there is no NPS for business and commercial NSIPs generally.

The Committee also, noting the proposed removal of statutory consultation, states that “ the House may wish to seek further assurance from the Minister that there will still be meaningful opportunities for local communities to make representations on proposed developments, and that forthcoming guidance will reflect the Government’s expectation of “high-quality consultation”. Suggestions like this could unhelpfully end up bringing back consultation requirements the Government has decided to drop. “Expectation” is doing a lot of work in this sentence.

Crying Wolf

Lord Wolfson has published a report for the Leader of the Opposition which looks at the consequences of our continued membership of the European Convention on Human Rights (ECHR). One particular question posed is “Can we prevent courts from treating action on climate change as a human right, and stop what are often perceived to be endless legal challenges to infrastructure projects?”. The answer? Mostly “no”.

The exception to this is concern about the case of Klimaseniorinnen Schweiz and Others v Switzerland where the ECHR held in that case that Switzerland was liable for its failure to take sufficient positive regulatory steps to mitigate the “current and future threat to the enjoyment of human rights” caused by climate change. In that case, the British judge dissented noting that this was taking the Convention too far, and Lord Wolfson’s view is that “it is entirely plausible that the developments in Klimaseniorinnen (both its conclusion on standing, and bringing climate change within the ambit of the ECHR) could affect substantial swathes of government policy”.

Budgets and Bills

The Carbon Budget and Growth Delivery Plan has been published setting out the package of proposals and policies that the Secretary of State considers will ensure Carbon Budgets 4, 5 and 6 to be met. Planning gets a brief mention, with the plan noting that the Government is “taking actions to break down barriers to growth in key sectors, such as removing blockers in the planning system via the Planning and Infrastructure bill.” Incidentally, a decision on H2Teesside has been delayed again, now deferred to 4 December.

Meanwhile, on the Bill itself, the following amendments were approved:

• 133, 136 and 149 to restrict EDPs to sites in England and English waters;
• 145 to require consultation in Wales or Scotland if there may be impacts on protected sites there; and
• 168 to deal with EDPs and potential breaches of duties in Marine Conservation Zones
• Baroness Willis' amendment 130 to restrict Environment Delivery Plans to nutrient neutrality, water quality, water resources or air quality (that's quite a big restriction on the government's plans)
• Lord Banner's amendments 163A and 163B to extend the use of EDPs to when after development has commenced

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2025. Specific advice should be sought for specific cases. For more information see our terms & conditions.