Infrastructure Planning Blog

This week’s bumper entry looks at the imminent removal of pre-application statutory consultation for development consent orders (DCO), the withdrawal of a solar farm DCO application, a solar farm appeal decision, a High Court case on interpretation of flood risk policy, some data centre news and a nod to the draft Heathrow Expansion National Policy Statement (NPS).

Addio

The Planning and Infrastructure Act 2025 (Commencement No. 4 and Transitional Provisions) Regulations 2026 were made on 16 June 2026 and can be found here.

Regulation 3 confirms that a number of the provisions of Part 1 (Infrastructure) of Chapter 1 (Nationally Significant Infrastructure Projects) of the Planning and Infrastructure Act 2025 will be brought into force on 24 July 2026.  Chief amongst these is the removal of pre-application requirements under sections 42, 43, 44, 45, 47 and 49 of the Planning Act 2008, as well as the ability to “opt-out” of the DCO process.

So, from 24 July 2026, it’s goodbye to statutory pre-application consultation.  The guidance on what can be expected from applicants in the absence of the statutory requirement is keenly awaited. Strong guidance which confirms that the same behaviours we’ve seen in recent years (on which, see below) are not to be encouraged will be welcomed.

Arrivederci

An application for Kingsway Solar Farm (a 500MW scheme in Cambridgeshire) was withdrawn on 16 June. The Planning Inspectorate (PINS) issued its section 51 advice in respect of the withdrawn application the next day.  It is worth reading.  

Apparently incomplete environmental surveys combined with a lack of certainty as to when these would be completed relative to the examination seems to have been the decisive factor in the Inspectorate’s mind. The survey gaps extended to ancient woodland, and as a result the applicant was unable to say whether there would be any ancient woodland affected and, if so, a compensation strategy required in accordance with the Overarching National Policy Statement for Energy (EN-1).

It will be interesting to see if and how quickly the application is re-submitted. The section 51 advice notes that: “Given the extent of the surveys/baseline information missing or awaiting further work in relation to (for example) ecology, ancient woodland and archaeology … the applicant may wish to consider whether it needs to hold further consultation on these matters and/or ensure that the Consultation Report clearly demonstrates why the consultation already carried out provided sufficient information to parties to enable informed feedback, citing any supporting evidence in the application”.  

There is a related word of caution about consulting on incomplete environmental information: “… the use of the ‘Rochdale envelope’ approach is not an excuse to submit applications with insufficient survey material”. This is somewhat a potentially dangerous signal, not just in the context of potentially reducing the utility of the Rochdale Envelope, but it implies that even where statutory consultation is removed (or, as the case here, where legal compliance was likely satisfied) that the Inspectorate may be seeking to indirectly continue to apply it as a test.

Also note the long list (7 pages) of observations on application documents, including errors and inconsistencies, underscoring the level of scrutiny applied by PINS when deciding to accept an application for examination. Some of those seem overly harsh, but it supports the view generally that it is the compounding of several issues (in the Inspector’s view) which leads to these withdrawals, with surveys, consultation, and inconsistencies being their prime concern.

Hard fought victory

Here is an interesting appeal decision granting planning permission for a 30MW solar farm in the North Wessex Downs National Landscape (the NL).

As the site was located in the NL, paragraph 190 of the National Planning Policy Framework (NPPF) applied. This sets out that permission for major development within National Landscapes should be refused other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest.  

The Inspector concluded that this test was met. The harm to the NL would be localised and minor adverse given the site’s scale relative to the wider NL and the limited visibility of the development.  In addition, there was an urgent need to reduce carbon emissions via the provision of renewable and low carbon energy in the context of the legally binding target to achieve net-zero carbon emissions by 2050.  This required “both significant further rooftop solar installations and numerous new solar farms both locally and nationally”.

The Inspector was also persuaded that there was no scope to develop the proposal outside the National Landscape. This was “due to various constraints, including in relation to limited grid capacity and the location of the available point of connection”. Even if there was scope to develop outside the NL, the Inspector noted that “the additional costs associated with, for example, extensive off-site cable routing and securing agreement with landowners for the cable route to the PoC would likely make the development unviable and undeliverable”.

Given the interaction with the NL, the duty in section 85 of the Countryside and Rights of Way Act 2000 was also engaged.  This required the Inspector to seek to further the purpose of conserving and enhancing the natural beauty of the area. On this issue, the Inspector concluded that “despite the appeal proposal not conserving and enhancing the area’s natural beauty and my duty to seek to further those statutory purposes, [the existence of exceptional circumstances in this case] leads me to conclude that permission should … not be withheld in relation to this main issue”.

A stern test

On 12 June, the High Court handed down its judgement in the case of North Somerset District Council v Secretary of State for Housing, Communities and Local Government and Persimmon Homes Severn Valley [2026] EWHC 1404 (Admin). The judgement can be found here.

It provides useful confirmation that a failure to pass the sequential test under flooding policy can be lawfully outweighed by other material considerations.

The sequential test requires that “Development [in a medium or higher probability flood area] should not be allocated or permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding” (para 174 of the NPPF). If the sequential test is passed, the exception test must then be applied, which means the development must be shown to provide wider sustainability benefits and to be safe for its lifetime without increasing flood risk elsewhere.

In this case, the development did not pass the sequential test.  This was relevant because Planning Policy Guidance confirms that “The Exception Test is not a tool to justify development in flood risk areas when the Sequential Test has already shown there are reasonably available and lower risk sites”.

However, the court held that the failure to pass the sequential test did not preclude the inspector from taking into account other material considerations (which may also have been taken into account when applying the exception test) when deciding what weight to give to the failure to pass the sequential test in the planning balance.  To say otherwise would be to render the failure to pass the sequential test a bar to the grant of planning permission, which was not sustainable in light of the decision in Mead [2025] EWCA Civ 32.

Therefore:

• The failure to meet the sequential (flood) test is not necessarily fatal to a proposal; and
• Planning policy, even where expressed in mandatory terms, cannot have the effect of limiting a decision maker’s statutory discretion (under section 70 of the Town and Country Planning Act 1990 or section 38(6) of the Planning and Compulsory Purchase Act 2004) to have regard to other material considerations in dealing with an application.

Lazer Quest

The second direction under section 35 for a data entre has been granted. This is also the first section 35 which includes not just a data centre, but also research and development and office space development. It is proposed to be co-located with energy generation. My colleagues advised on obtaining this order, and you can see the direction here.

Speaking of data centres, here is an interesting recovered appeal decision of 10 June granting planning permission for a major data centre with battery energy storage system near Slough, notwithstanding the project’s location in the green belt. Also of note is the potential interaction with Heathrow airport expansion, given that the site was identified to be important, notably the best, for freight forwarding uses.  The Secretary of State concluded that there was “no realistic suggestion that approval of the appeal scheme would rule out the expansion of Heathrow and its related uses”.  As such, and “despite the obvious merits of the site for potential airport related uses”, the Heathrow expansion proposals had not reached the threshold where they carry anything more than limited weight against the appeal proposal.

The draft Heathrow Expansion NPS (“HENPS”) was published on 18 June for consultation, with responses due by 11:59pm on 1 September 2026.  As we are advising the DfT on this, we are not going to be commenting further, but amongst other things would recommend readers take a look at the inclusion of a new “Critical National Growth Infrastructure” policy designation for Heathrow expansion.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2026.  For more information see our terms & conditions.