Infrastructure Planning Blog

This week’s entry looks at changes to the Habitats Regulations under the Planning and Infrastructure Act 2025, application fees, a petition calling for changes to decision making for nationally significant infrastructure projects and a solar farm appeal decision.

I Fry-ed a river over you

We reported previously on the case of C G Fry & Son Limited v Secretary of State for Housing, Communities and Local Government and another [2025] UKSC 35.

There, the Supreme Court held that, whilst an appropriate assessment under the Habitats Regulations is required to be carried out at all relevant stages of the planning process – including the discharge of conditions and reserved matters – this did not apply so as to require an appropriate assessment of an internationally recognised wetland site, aka a Ramsar site, (n.b., in Fry, there was a concern at the reserved matters stage about the potential impact of wastewater and surface water entering the River Tone, with consequent effects on the Somerset Levels and Moors Ramsar Site).

The Court reached this conclusion because Ramsar sites derive(d) their protection from national policy, unlike European sites (i.e., Special Protection Areas and Special Areas Of Conservation) which derive their protection from the Habitats Regulations, and planning permissions should not be hostage to retrospective changes in policy given the uncertainty this would create for developers.

The latest commencement regulations (here) implementing the Planning and Infrastructure Act 2025 change this. These came into force on 21 May 2026 and amend the Habitats Regulations by extending the protection afforded to European sites to include Ramsar sites too. This means that there is now a statutory requirement for Ramsar sites to be treated in the same manner as European sites when carrying out an appropriate assessment under the Habitats Regulations.

The result is that Fry is effectively redundant, because Ramsar sites now derive their protection from law not policy, so an appropriate assessment of the implications of development for a Ramsar site would need to be carried out.

How Much?

In Blog 36, we reported that the Department of Energy Security and Net Zero (DESNZ) was consulting on changes to fees for planning delivery services for energy infrastructure developments. The Government consulted on a proposed fixed fee model, whereby each consenting application type would be assigned a weighting based on its estimated processing time, derived from professional judgement.

A summary of the consultation responses received has now been published.  

The headline is that, whereas Government previously proposed that the fee changes would take effect this summer, changes are now postponed to the 2027/2028 financial year to allow for further evaluation. This seems to have been promoted by concerns about the fixed fee model, which some consultation respondents said would unfairly penalise smaller, less complex projects (and so a tiered, segmented or staged fee structure should be pursued instead).

This means that for energy DCOs, for example, there will still be no fee payable to DESNZ for DCO submissions made in this financial year, separate to that payable to the Planning Inspectorate.  If the Government proceeds as planned, the fee will be £100,600 for submissions made in the next financial year.

No Minister

A petition calling for an amendment to the Planning Act 2008 to end decision making by a single minister has received c. 5,000 signatures.  It says that the power should be transferred to an independent panel of experts or decided by a vote in Parliament. The current situation, so the petition says, “… creates a risk of political bias and undermines public trust”. This would see a return to the original position, under the Planning Act 2008, where it was the Infrastructure Planning Commission (IPC) that both examined and decided applications, before the decision-making powers were transferred to the relevant Secretary of State in 2012 (only 1 application was determined by the IPC).

There’s an interesting cross-over between this and judicial review reforms, albeit the motives are very different. We reported last week that the Chancellor had announced an intention to introduce a requirement for Parliamentary approval in relation to as-yet-unspecified energy DCOs of ‘critical national importance’, so that they will not be able to be challenged in the courts other than on human rights grounds.

If the petition receives 10,000 signatures, the Government must respond to it.  If it receives 100,000 signatures, it will be considered for debate in Parliament.  The petition will stay open until 26 November 2026.  

There Goes The Sun

Finally for this week, a proposal for an 18.5MW solar farm in Somerset has been refused planning permission following an inquiry earlier this year.  The appeal decision can be accessed here.  The appeal was dismissed on the basis of identified harm to heritage assets, the Dorset National Landscape and best and most versatile land, which were enough to outweigh the significant benefits associated with renewable solar power.

The appeal also raises the interesting question of the weight to be given to the National Policy Statements EN-1 and EN-3 in the context of an appeal under section 78 of the Town and Country Planning Act 1990.  On that, the Inspector concluded that:

• EN-1 identifies low-carbon infrastructure as a “critical national priority” whereby there is a presumption that permission should be granted unless exceptional circumstances indicate otherwise.
• However, the Planning Act 2008 defines critical national priority solar farms as having 100 MW capacity and this is well short at 18 MW capacity [I am not sure the 2008 Act does say this and of course a project below 100MW could be directed into the DCO regime under a section 35 direction].
• EN-1 and EN-3 are therefore material considerations, but not presumptive.

A useful reminder, therefore, that solar development will not automatically be acceptable in every location and of the importance of site selection.

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