Infrastructure Planning Blog

This week’s entry looks at a legal challenge to a solar farm development consent order (DCO) dismissed as “totally without merit”, a case on the overlap between planning and other pollution control regimes, and the Norwich to Tilbury examination.

A hopeless case

Last week saw a landmark ruling of the High Court in which it held that a judicial review (JR) claim brought by Aldington and Bonnington Parish Council against the Stonestreet Green Solar DCO was “totally without merit”.

The DCO was granted by the Secretary of State in October 2025.  The claim for JR was brought in December 2025. The High Court’s judgment was handed down on 24 April (although is still to be published), meaning the case was disposed of in four months, which is good going.

The case is significant because it is the first time a JR in respect of a DCO has been dismissed as totally without merit since section 13 of the Planning and Infrastructure Act 2025 came into force on 18 February 2026. The effect of section 13 is that where the High Court refuses permission to hear a challenge on the grounds that it is totally without merit, there is no longer a right of appeal in respect of that decision to the Court of Appeal (which inevitably adds time and cost for developers in defending hopeless cases). Section 13 was the product of Lord Banner’s independent review into legal challenges against Nationally Significant Infrastructure Projects in 2024 (see here).

Whilst we await the judgment, we know that the grounds of challenge brought by the Parish Council argued that the Secretary of State had failed to give adequate reasons for why the DCO had been granted having regard to harm to heritage assets, consistency with a nearby solar scheme and the consideration of alternatives to the project.  Mrs Justice Lieven concluded that all three grounds were unarguable and totally without merit (i.e., bound to fail), and commented that the claim was a classic example of the claimant not reading a decision letter or examining authority’s recommendation report as a whole, but instead seeking to apply an exegetical, overly legalistic analysis.

So, a promising start for the section 13 reform, which has probably saved this project several months of delay, assuming the Parish Council would have pursued the case to the Court of Appeal.

There are further JR reforms in the pipeline following the Nuclear Regulatory Taskforce’s recommendations that additional changes to the regime were required.  Details of those were contained in an earlier blog entry (see here). The Government intends to publish a working paper in Summer 2026 setting out next stages.

Jaks Bar and Restaurant

This is an interesting case concerning the relationship between the planning system and other systems of control, in this case premises licensing. The judgment can be found here. The High Court quashed the decision of an Inspector who refused to grant planning permission for Jaks Bar and Restaurant in Chelsea to operate extended hours. The Inspector in her report had said:

“…without sound reasoning that the increased hours of opening would not cause undue noise and disturbance to local residents, I cannot be certain the living conditions of the local residents would be acceptably safeguarded”.

That decision was flawed because the Inspector had not addressed the suitability of the premises licensing system to respond to concerns about the impact on residential amenity from noise, which is an issue where planning and licensing overlap. This was an example of the application of the Gateshead principle (originating from Gateshead MBC v Secretary of State for the Environment [1995]) which establishes that a planning decision-maker is entitled to rely on other competent regulatory regimes (e.g., environmental regulators) to manage specific impacts of a development, rather than duplicating those controls in the planning process.

The Gateshead principle has been applied in recent DCO challenges. For example, in the challenge brought against the decision to grant development consent for the Immingham Eastern Ro-Ro Terminal, the court held that it was permissible for the Secretary of State to rely on the Harbour Master to ensure that larger ships would be capable of docking at the terminal safely in future.  Similarly, in the context of the Luton Airport Expansion challenge, it was held that the Secretary of State was entitled to rely on the Climate Change Act 2008, which sets carbon budgets and emissions trading schemes providing specific national-level controls designed to manage emissions, when assessing the project’s climate impacts.

Ipswich Town vs Colchester United

Finally, there was, we think, a first this week: two hearings on the same project (Norwich to Tilbury) at the same time. They were both held at football stadiums too: an issue specific hearing at the JobServe Community Stadium (home of Colchester United) and a compulsory acquisition hearing at Portman Road (home of Ipswich Town). It’s almost half-time on that particular DCO examination.

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